Yeo and Huy

[2012] FamCA 174

FAMILY COURT OF AUSTRALIA

YEO & HUY [2012] FamCA 174

FAMILY LAW – COSTS – Where wife “wholly unsuccessful” in application in a case – whether wife should pay husband’s costs pursuant to s 117(2A) – where wife ordered to pay husband’s costs of and incidental to the application in a case

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Penfold v Penfold (1979 – 1980) 144 CLR 311

APPLICANT: Ms Yeo

RESPONDENT: Mr Huy

FILE NUMBER: BRC 5627 of 2011

DATE DELIVERED: 15 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 15 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M.J. Byrne

SOLICITOR FOR THE APPLICANT: Dante Chen Lawyers

COUNSEL FOR THE RESPONDENT: Mr S J Lee

SOLICITOR FOR THE RESPONDENT: Hartley Healy Lawyers

Orders

IT IS ORDERED THAT

1. The Application in a Case filed by the Applicant Wife on 8 March 2012 be dismissed.

2. The Applicant Wife pay the Respondent Husband’s costs of and incidental to the Application in a Case filed on 8 March 2012.

3. The amount of costs payable shall be as agreed by the parties in writing or, failing agreement within 28 days of the date of this Order, as assessed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5627 of 2011

Ms Yeo

Applicant

And

Mr Huy

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. An application in a case was filed on 8 March 2012, accompanied by an affidavit by Dante Chen, who is the solicitor for the applicant wife in substantive proceedings which I have heard and in which judgment is reserved.  I anticipate being in a position to deliver that judgment within the next week or so. 

2. The application in a case seeks to re-open those substantive proceedings so as to adduce evidence contained in three letters annexed to that affidavit, marked respectively exhibits DC1 through 3.  Those exhibits comprise a letter dated 7 July 2011 from the wife’s solicitors to the husband’s solicitors, a letter sent by facsimile on 8 July 2011 marked DC2, and a further letter dated 8 July 2011.

3. Each of the annexures DC1 and DC3 comprise exhibit ILY6, to an affidavit of the wife, filed 13 January 2012 in the substantive proceedings. 

4. Just prior to lunchtime on the first day of the trial, objection was taken by Mr Lee, counsel for the husband, to paragraph 51 through 53 of the wife’s affidavit, which, relevantly, referred to those exhibits. The basis of the objection was that the exhibits form part of settlement negotiations within the meaning of the Evidence Act and were, accordingly, the subject of privilege.

5. I indicated to counsel for the wife that, upon commencing to read the application in a case and the affidavit of the solicitor accompanying it, I came to the first of those letters and noticed it was marked “Without prejudice save as to costs”.  I immediately stopped reading, because, prima facie, I had a concern that those letters were, in fact, part of settlement negotiations. 

6. As a result, I was unaware until discussion with counsel ensued in the application this morning, that two of three letters in the instant application are identical to the two letters comprising exhibit ILY6 to the affidavit to which I have referred. 

7. Upon having that pointed out to me, I compared the contents of the letters, and it is plain that the letters comprising exhibit ILY6 to that affidavit are exactly the same as two of the three letters relied upon in the affidavit of the solicitor supporting the application to re-open.

8. Mr Byrne, counsel for the wife, refers to an additional letter contained within that exhibit.  That letter appears undated, but has a facsimile mark on it of 8 July 2011.  It, too, is marked “Without prejudice save and except as to costs”.  It could not properly be contended that that letter did not form part of the same settlement negotiations of which the two other letters to which I’ve referred formed part, and Mr Byrne, quite properly, effectively concedes as much. 

9. That being the case, the application to re-open can be reframed properly as being an application to re-open so as to adduce evidence which has been excluded at the trial as being inadmissible by reason of being part of settlement negotiations within the meaning of the Evidence Act. Accordingly, the instant application must fail.

10. Understandably enough, Mr Byrne does not seek to defend an application for costs on the part of the husband in respect of the application.

11. Although the prima facie rule under the Act (pursuant to section 117(1)) is that each party bears their own costs, section 117(2A) of the Act refers to a number of matters that can be taken into account in making an order for costs if it is considered appropriate in the circumstances of the case. 

12. It has been made clear by decisions of the Full Court, including, for example, Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123, and, indeed, by reference to the decision of the High Court in Penfold v Penfold (1979 – 1980) 144 CLR 311, that one or more matters can satisfy the provisions of section 117(2A), and neither one matter nor another is more or less important than the other.

13. It seems to me that, overwhelmingly, the factor in favour of an award of costs in favour of the husband in this case is that the application in a case brought by the wife was, in fact, doomed to fail from its outset, and ought never have been brought. 

14. That adds a particular dimension to the wife being “wholly unsuccessful” within the meaning of section 117(2A) of the Act, and it also adds a particular dimension to the “conduct of the proceedings” within the meaning of the same subsection. 

15. I have no hesitation, therefore, in ordering that the wife pay the husband’s costs of and incidental to the application in a case.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 15 March 2012.

Associate: 

Date:  26 March 2012