Vaile and Labrum and Ors (No.2) - [2019] FCCA 3477

FEDERAL CIRCUIT COURT OF AUSTRALIA

VAILE & LABRUM & ORS (No.2)

[2019] FCCA 3477

Catchwords:
FAMILY LAW – Costs – where applicant seeks indemnity costs having regard to first respondent’s conduct – general principle that each party to bear own costs – where general principle yields to power to award costs – relevant considerations – power to set the amount of such costs – power to set quantum, determine method for computation or to refer to taxation – quantum set.

Legislation:

Family Law Act 1975 (Cth), ss.4, 117
Federal Circuit Court Rules 2001 (Cth), r.22.02

Cases cited:

Browne v Green [2002] FLC 93-115
Cacchia v Hanes (1994) 179 CLR 403
Chilli v Abbott [1981] FCA 70
Eldred & Eldred (No.2) [2015] FamCA 188
Fitzgerald (as child representative for AF (Legal Aid Commission of Tasmania) v Fish (2005) 33 Fam LR 123
Hawkins & Roe [2012] FamCAFC 77
I & I (1995) FLC 92-625
In the Marriage of Conroy (1976) 2 Fam LR 11
In the Marriage of Fisher (1990) 13 Fam LR 806
In the Marriage of Greedy (1982) 8 Fam LR 669
In the Marriage of Robinson & Higginbotham (1991) 14 Fam LR 559
In the Marriage of Kelly (No.2) (1981) FLC 91-108
JEL v DDF (Repayment on Appeal, and Costs) (2001) 28 Fam LR 119
Latoudis v Casey 170 CLR 534
Mallett v Mallett (1984) 156 CLR 605
Minister for Immigration and Multicultural Affairs v Vardalis (No.2) (2001) 188 ALR 143
Parke & The Estate of the Late A Parke [2016] FamCAFC 248
Penfold v Penfold (1980) 144 CLR 311

Pennisi & Pennisi (1997) FLC 92-2774
Rafferty v Wheler (No.2) [2019] FCCA 461
Vaile & Labrum & Ors [2019] FCCA 2867
Wrensted v Eades [2016] FamCAFC 46

Applicant:

MS LABRUM

First Respondent:

MR LABRUM

Second Respondent:

MR F LABRUM

Third Respondent:

MR H LABRUM

Fourth Respondent:

MS G LABRUM

Fifth Respondent:

C PTY LTD

File Number:

MLC 6854 of 2018

Judgment of:

Judge A Kelly

Hearing dates:

19, 20 August 2019, 2 October 2019

Date of Last Submission:

28 November 2019

Delivered at:

Melbourne

Delivered on:

9 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr C. Dunlop

Solicitors for the Applicant:

Hassel's Litigation Services

Counsel for the First Respondent:

Mr G. Thexton (19-20 August 2019)

Counsel for the First Respondent:

Mr J. Hall (2 October 2019)

Solicitors for the First Respondent:

Thexton Lawyers

Counsel for the Second to Fifth Respondents:

Ms M. Smallwood (2 October 2019)

Solicitors for the Second to Fifth Respondents:

Tisher Liner FC Law

THE COURT ORDERS THAT:

The first respondent pay the applicant’s costs of and incidental to the proceeding fixed in the sum of $15,000.
Paragraph (7) of the Order made on 23 October 2019 be varied so as to add after paragraph (7)(b) thereof:
“(7)(ba) payment to the applicant of the costs payable pursuant to paragraph (1) of the Order made on 9 December 2019.”

IT IS NOTED that publication of this judgment under the pseudonym Vaile & Labrum &…

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

Case: [2019] FCCA 3477
Decision Date: 9 December 2019

CaseChat Overview and Summary

In *Vaile and Labrum and Ors (No.2)*, heard by Judge A Kelly, the applicant sought indemnity costs against the first respondent. The dispute concerned the applicant's entitlement to costs following earlier proceedings, with the applicant arguing that the first respondent's conduct warranted an order for indemnity costs rather than the usual order for each party to bear their own costs.

The central legal issue before the court was whether the first respondent's conduct justified departing from the general principle that parties bear their own costs and, if so, the appropriate quantum of those costs. The court was required to consider the relevant factors that would permit an award of indemnity costs and to determine the method for setting the amount of such costs, including whether to fix the quantum directly or refer the matter for taxation.

Judge A Kelly determined that the first respondent's conduct warranted an order for indemnity costs. The court applied the principle that while parties generally bear their own costs, this principle can yield to the court's power to award costs in circumstances where it is just to do so. Having found grounds for such an award, the court exercised its power to set the quantum of the costs directly.

The court ordered that the first respondent pay the applicant's costs of and incidental to the proceeding, fixed in the sum of $15,000. Additionally, a previous order of 23 October 2019 was varied to include a provision for the payment of these costs.

Orders

Orders of the court

The first respondent pay the applicant’s costs of and incidental to the proceeding fixed in the sum of $15,000.

Paragraph (7) of the Order made on 23 October 2019 be varied so as to add after paragraph (7)(b) thereof:

“(7)(ba) payment to the applicant of the costs payable pursuant to paragraph (1) of the Order made on 9 December 2019.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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