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Thompson & Finch & Ors

Thompson & Finch & Ors

Case [2020] FamCAFC 230 18 September 2020

Costs

Appeal

Jurisdiction

Admissibility of Evidence

Family Law

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FAMILY COURT OF AUSTRALIA

THOMPSON & FINCH AND ORS

[2020] FamCAFC 230

FAMILY LAW – APPEAL – COSTS – Where leave to appeal is not required given the orders finally determine the rights of the parties and thus are not interlocutory orders – Where ostensible bias is not demonstrated – Where the two step process in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 is not engaged – Where it is not open to raise on appeal an allegation of apprehended bias when nothing was done about it before the judge at first instance – Where the appellant’s counsel conceded that costs orders could not be resisted and although not clear at most the only issue was whether those costs should be calculated on indemnity bases – Where determination as to costs is a quintessentially discretionary exercise – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

Family Law Act 1975 (Cth) ss 106B, 117(2A)
Family Law Rules 2004 (Cth) r 22.53
Federal Circuit Court Rules 2001 (Cth) rr 13.02, 21.03

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350
Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246; [1981] HCA 20
Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Harris and Harris (1991) FLC 92-254; [1991] FamCA 124
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPELLANT:

Ms Thompson

FIRST RESPONDENT:

Mr Finch

SECOND RESPONDENT:

Company C

THIRD RESPONDENT:

Ms Lasko

FILE NUMBER:

MLC

9211

2017

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

18 September 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

In Chambers

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 August 2019

LOWER COURT MNC:

[2019] FCCA 2684

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Swart

SOLICITOR FOR THE APPELLANT:

PCL Lawyers

COUNSEL FOR THE FIRST AND SECOND

RESPONDENTS:

Ms Galea

SOLICITOR FOR THE FIRST AND

SECOND RESPONDENTS:

Lampe Family Lawyers

COUNSEL FOR THE THIRD

RESPONDENT:

Ms Saint

SOLICITOR FOR THE THIRD

RESPONDENT:

Berger Kordos Lawyers

Order

The appeal be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Finch and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Thompson & Finch & Ors [2020] FamCAFC 230
Case: [2020] FamCAFC 230
Decision Date: 18 September 2020

CaseChat Overview and Summary

In this appeal, Ms Thompson, the appellant, sought to challenge certain orders made by a judge of the Federal Circuit Court of Australia, which required her to pay costs to the first, second and third respondents. The appeal was opposed by the first and second respondents, while the third respondent did not file a summary of argument. The appeal was determined on the papers, and the court found that the appeal had no merit. The court dismissed the appeal and ordered that it be dismissed. The court noted that leave to appeal was not required as the orders finally determined the rights of the parties and thus, they were final orders rather than interlocutory orders. The court also found that the primary judge did not demonstrate ostensible bias, and that the two-step process in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 was not engaged. Further, the court found that it was not open to raise on appeal an allegation of apprehended bias when nothing was done about it before the judge at first instance. The court found that the appellant's counsel conceded that costs orders could not be resisted, and the only issue was whether those costs should be calculated on indemnity bases. The court found that the determination as to costs was a quintessentially discretionary exercise and that there was no merit in any of the grounds of appeal. The appeal was dismissed, and the orders made by the primary judge were upheld.

Orders