Whitman and Hacking

[2013] FCCA 356

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITMAN & HACKING [2013] FCCA 356

Catchwords:
FAMILY LAW – Costs – offer of settlement – recommendation of family report writer – no justifying circumstance found.

Legislation:

Family Law Act 1975, ss.60CA, 60I, 117, 118

Family Law Rules 2004, rr.10.1.1
Federal Circuit Court Rules, r.1.05
Legal Profession Act 2004
Federal Circuit Court Act, s.17A

Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184

Penfold v Penfold (1980) FLC 90-80
Wetner v Ratner [2011] FamCA 104
Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225

AIF v AMS [1999] HCA 26
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 70
Browne v Green (2002) 29 Fam LR 428

Applicant: MR WHITMAN

Respondent: MS HACKING

File Number: PAC 167 of 2012

Judgment of: Judge Harman

Hearing date: 5 April 2013

Date of Last Submission: 5 April 2013

Delivered at: Parramatta

Delivered on: 24 May 2013

REPRESENTATION

Counsel for the Applicant: Mr Schroder

Solicitors for the Applicant: Collins & Thompson

Counsel for the Respondent: Mr O’Brien

Solicitors for the Respondent: Etheringtons Solicitors

ORDERS

1. The Application for costs made by Ms Hacking is dismissed.

2. Each party shall pay their own costs of and incidental to the proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Whitman & Hacking is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

PAC 167 of 2012

MR WHITMAN

Applicant

And

MS HACKING

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court following a contested hearing and, at the conclusion of the hearing, an oral application for costs made by Ms Hacking (the Respondent in the substantive proceedings and the Applicant with respect to the issue of costs).

2. The oral application for costs was made with the Court’s leave at the conclusion of a three day trial and judgment delivered at the conclusion thereof.

3. Following such leave being granted the costs application, then properly before the Court, was adjourned for hearing to 7 February 2013.

4. On 7 February 2013 and for reasons that are entirely unclear, the proceedings were adjourned by consent and listed for hearing before me on 5 April 2013.

5. On 7 February 2013 and when the proceedings were adjourned, directions were also made for written submissions to be filed by each of the parties. This has occurred and such written submissions have been augmented by further oral submissions by Counsel for each of the parties.

Material considered

1. In dealing with the issue of costs I have had regard to the documents identified by each of the parties and comprising:

   a)In the case of Ms Hacking:

   i)Written submissions dated 6 March 2013;

   ii)Minute of Orders sought at trial by Ms Hacking (Exhibit M1 in the substantive proceedings);

   iii)The Response filed by Ms Hacking in the substantive proceedings 6 February 2012;

   iv)The Case Outline filed by Ms Hacking's Counsel at the commencement of the substantive trial;

   v)Ms Hacking's Affidavit affirmed 18 January 2013…