Withers & Russell (No 2)

This appeal concerns an Application in an Appeal filed by Ms Russell ("the mother") against Mr Withers ("the father") seeking that the father pay her costs for both appeals on an indemnity basis. The father filed Notices of Discontinuance in the appeals, and subsequently the mother filed the costs application. The mother did not comply with procedural orders made in respect of her costs application and did not appear at the hearing. The Full Court dismissed the mother's costs application at the hearing, and the father made an application for indemnity costs upon the dismissal of the mother's costs application. The court found that an indemnity costs order against the mother was not warranted, but an order for the mother to pay the father's costs on a party/party basis was appropriate.

The primary issues for the court to decide were whether an order for indemnity costs should be made against the mother, and if not, whether an order for the mother to pay the father's party/party costs was justified. The court considered the relevant legislation, case law and submissions of the parties in reaching its decision. The court found that the mother's failure to comply with procedural orders, and her disengagement from the proceeding, justified an order for the father's party/party costs, but that an indemnity costs order was not warranted as the mother's conduct, while serious, did not amount to exceptional circumstances. The court also noted that the mother, as a legal professional, was taken to be well aware of her obligations as a litigant in this Court.

The court ultimately dismissed the mother's costs application and ordered that she pay the father's costs in the sum of $8,652.18 within 28 days. The court found that the mother's failure to comply with procedural orders, and her disengagement from the proceeding, justified an order for the father's party/party costs. The court also found that an indemnity costs order was not warranted as the mother's conduct, while serious, did not amount to exceptional circumstances. The court considered the relevant legislation, case law and submissions of the parties in reaching its decision.

The final orders of the court were that the Application in an Appeal filed 16 August 2022 is dismissed and that the applicant pay the first respondent's costs in the sum of $8,652.18 within 28 days. The form of the order is subject to the entry in the Court’s records. This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.