WELLEN & WELLEN

Case [2018] FamCAFC 192


FAMILY COURT OF AUSTRALIA

WELLEN & WELLEN [2018] FamCAFC 192

FAMILY LAW – APPEAL – COSTS – Where the primary judge ordered that the husband pay the wife’s costs thrown away as a result of an adjournment on an indemnity basis – Procedural unfairness – Where neither party sought an adjournment and the primary judge ordered the adjournment on his own motion – Adequacy of reasons – Where the primary judge failed to give adequate reasons for adjourning the hearing – Where the primary judge failed to give adequate reasons for ordering that the costs thrown away be paid on an indemnity basis – Error demonstrated – Appeal allowed – Order for indemnity costs set aside.

FAMILY LAW – APPEAL – COSTS – Indemnity costs – Appeal against order quantifying indemnity costs – Where the order for indemnity costs was based on an incorrect premise and was set aside – Where the order quantifying those costs must also be set aside – Appeal allowed.

Family Law Act 1975 (Cth) s 117
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Kohan and Kohan (1993) FLC 92-340
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Thorne v Kennedy (2017) 350 ALR 1; [2017] HCA 49
APPELLANT: Mr Wellen
RESPONDENT: Ms Wellen
FILE NUMBER: BRC 8305 of 2015
FIRST APPEAL NUMBER: NOA 38 of 2018
SECOND APPEAL NUMBER: NOA 39 of 2018
DATE DELIVERED: 26 September 2018
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Murphy, Aldridge & Kent JJ
HEARING DATE: 26 September 2018
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE:

11 April 2018

16 April 2018

LOWER COURT MNC: [2018] FCCA 1187
[2018] FCCA 1468

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Firth
SOLICITOR FOR THE APPELLANT: Damien Greer Lawyers
COUNSEL FOR THE RESPONDENT: The Hon. Mr Foley
SOLICITOR FOR THE RESPONDENT: Get Real Legals

Orders

  1. Appeal number NOA 38 of 2018 from the orders of Judge Egan made on 11 April 2018 be allowed.

  2. Appeal number NOA 39 of 2018 from the orders of Judge Egan made on 16 April 2018 be allowed.

  3. Orders 1 and 2 of the orders made by Judge Egan on 11 April 2018 be set aside.

  4. Orders 1 and 2 of the orders made by Judge Egan on 16 April 2018 be set aside.

  5. In lieu of the said orders, each party shall bear their own costs occasioned by the adjournment of 12 March 2018.

  6. Each party bear their own costs of and incidental to the appeal.

  7. The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant…

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AGLC
WELLEN & WELLEN [2018] FamCAFC 192
Case
[2018] FamCAFC 192
Decision Date

CaseChat Overview and Summary

The appeal before the court involved Wellen and Wellen, with the husband appealing the primary judge’s decision to order him to pay the wife’s costs thrown away as a result of an adjournment, on an indemnity basis. The wife, in turn, appealed the primary judge’s order quantifying the indemnity costs. Both parties were contesting the fairness and adequacy of the primary judge’s reasons for the adjournment and the subsequent order for indemnity costs.

The legal issues before the court were twofold. Firstly, whether the primary judge was correct in ordering the husband to pay the wife’s costs thrown away due to the adjournment, particularly when neither party sought the adjournment and it was ordered on the judge’s own motion. Secondly, the court had to determine if the primary judge gave adequate reasons for both the adjournment and the indemnity costs order, and if the order for indemnity costs was based on an accurate premise.

The court found that the primary judge’s decision to adjourn the hearing without the parties seeking it was procedurally unfair. Additionally, the judge failed to provide adequate reasons for the adjournment and the indemnity costs order, which constituted an error. Consequently, the appeal was allowed, and the orders for indemnity costs were set aside. The court ruled that each party should bear their own costs occasioned by the adjournment, and both parties were to bear their own costs of the appeal. Furthermore, the court issued costs certificates to both parties, allowing for potential reimbursement of their costs by the Attorney-General under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

1.

Appeal number NOA 38 of 2018 from the orders of Judge Egan made on 11 April 2018 be allowed.

2.

Appeal number NOA 39 of 2018 from the orders of Judge Egan made on 16 April 2018 be allowed.

3.

Orders 1 and 2 of the orders made by Judge Egan on 11 April 2018 be set aside.

4.

Orders 1 and 2 of the orders made by Judge Egan on 16 April 2018 be set aside.

5.

In lieu of the said orders, each party shall bear their own costs occasioned by the adjournment of 12 March 2018.

6.

Each party bear their own costs of and incidental to the appeal.

7.

The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

8.

The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

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

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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