PARKER v PARKER [1992] NSWCA 179

PARKER v PARKER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MEAGHER JJA 31 August 1992, 31 August 1992 [1992] NSWCA 179

COSTS — de facto relationship — dispute — order for advance payment of $15,000 preliminary costs — trial judge (John Bryson J) makes order to permit female party to have accountant investigate financial affairs of companies of male party — summons for leave to appeal — held: (dismissing the summons): (1) The power to make orders for costs under s76(1) Supreme Court Act 1970 is extremely wide and supported the order made; (2) It was not necessary to determine whether, additionally, power existed under s27 and 38 of the De Facto Relationships Act 1984. Breen v Breen (1990) 65 ALJR 195 (HC) considered; (3) No principle could be fashioned to allow the wide powers under the Supreme Court Act to be read down in the case of de facto relationships; (4) Summons dismissed. Wilson v Wilson (1966) 9 FLR 1 (SC NSW) applied.

De Facto Relationships Act 1984, s27, s38. Supreme Court Act 1970, s76.

Kirby P The order for what might be called preliminary costs made by Justice John Bryson which is challenged in this summons is said to be unusual in a case involving a de facto relationship. Indeed, it is said to be unprecedented so far as the Supreme Court is concerned. His Honour ordered the male party to the relationship (the claimant) to pay $15,000 in anticipation of the costs which would be incurred by the female party (the opponent) in retaining accountants to investigate the financial affairs of the claimant. These involve complex corporate relationships which will necessitate skilled accounting analysis.

The jurisdiction of a Judge of the Supreme Court to fashion an order for costs is extremely wide. TWO sources of jurisdiction were relied on in this case by the opponent: viz s76(1) of the Supreme Court Act 1970 and s27 and s38 of the De Facto Relationships Act, 1984. His Honour appears to have contented himself with relying upon the former head of power.