Adlin & Northern Territory Central Authority (No 2)

[2021] FamCAFC 32

FAMILY COURT OF AUSTRALIA

Adlin & Northern Territory Central Authority (No 2) [2021] FamCAFC 32

Appeal from:

Northern Territory Central Authority & Adlin [2020] FamCA 594

Appeal number(s):

NOA 53 of 2020

File number(s):

DNC 27 of 2020

Judgment of:

AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ

Date of judgment:

11 March 2021

Catchwords:

FAMILY LAW – APPEAL – COSTS – Application for costs certificates for the appeal and re-hearing pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Application filed after delivery of appeal reasons for judgment – No submissions filed – Failure to comply with procedural directions – Application dismissed.

Legislation:

Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:

Adlin & Northern Territory Central Authority (2020) FLC 94-002; [2020] FamCAFC 313

B & B (Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177

Cramer v Davies (1997) 72 ALJR 146

Division:

Appeal Division

Number of paragraphs:

13

Date of hearing:

Heard by way of written submissions

Place:

In Chambers

Solicitor for the Applicant:

Hague Convention Legal Practice

Solicitor for the Respondent:

Did not participate

ORDERS

NOA 53 of 2020
DNC 27 of 2020

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR ADLIN

Applicant

AND:

NORTHERN TERRITORY CENTRAL AUTHORITY

Respondent

ORDER MADE BY:	AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
DATE OF ORDER:	11 MARCH 2021

THE COURT ORDERS THAT:

1.The applicant’s Application in an Appeal filed on 23 December 2020, seeking costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth), is dismissed

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adlin & Northern Territory Central Authority (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

1. On 15 December 2020, this Court upheld the father’s appeal (Adlin & Northern Territory Central Authority (2020) FLC 94-002).

2. In respect of the parties’ costs of the appeal, it was observed in the reasons for judgment:

   40.The appeal succeeded due to an error of law, not induced by the Central Authority. There was no application for costs and no application for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

3. Just before judgment was delivered, the father’s lawyer sent an email to the Appeal Registrar asking how to apply for a costs certificate. She was correctly informed that no such certificate under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) had been sought at the appeal hearing on 7 December 2020 and so, if the issue was to be pressed, it required the filing and service of an Application in an Appeal and supporting affidavit. The application and affidavit were then duly filed on 23 December 2020, more than a week after judgment was delivered.

4. On 29 January 2021, the Appeal Registrar made orders requiring, pertinently, the respondent (“the Central Authority”) to file any Response and supporting affidavit and for the parties to file written submissions by due dates, so the application could be heard and determined in chambers.

5. The father defaulted. He did not file his written submissions by 19 February 2021 as ordered or, indeed, at all.

6. The Central Authority also defaulted. It failed to file any Response and, in the absence of any submission by the father, did not file any submissions by 26 February 2021.

7. The father’s pending applications for costs certificates, in respect of both the appeal and the re-hearing, should be dismissed.

8. These proceedings comprised a federal appeal, the appeal was heard on its merit, and it succeeded for an error of law, so the antecedent conditions for the grant of costs certificates under the Costs Act are made out (B & B (Costs Certificates) (2007) FLC 93-339; Cramer v Davies (1997) 72 ALJR 146). However, the decision to grant such certificates is discretionary and, in this case, the discretion ought not to be exercised in the father’s favour.

9. The issue of costs was squarely addressed with the parties at the appeal hearing. No application for either costs or costs certificates was made by either party at that time. The father’s lawyer attempted to explain the failure to make an application for costs certificates at the end of the appeal hearing on the basis that they were then unaware the appeal would succeed for an error of law, deposing:

   11.Upon release of the judgement [sic] on 15 December 2020 it became evident that the appeal had been decided on a question of law.

10. But that was not so. In fact, the success of the appeal on the point of law was evident during the appeal hearing. The Central Authority was impelled to admit the error at the time and the manner in which the appeal should be successfully disposed was then discussed with both parties’ lawyers (at [2], [29]–[30] and [32]).

11. The father’s lawyer deposed the father is “a self-funded litigant”, which we accept, who engaged them in the initial trial over five days, but that is not to the point. The costs incurred by the father in the first trial are irrelevant because the costs certificates now sought relate to only the appeal hearing and the re-hearing. The appeal and the re-hearing might not have been necessary had the father and his lawyers concentrated upon the issue at hand and not led the primary judge into an evidentiary labyrinth.

12. For reasons given in the appeal, the father’s lawyers gave the primary judge very little assistance and were the principal cause for the trial being inordinately long (at [33]–[38]) and, hence, the father incurred much higher legal costs than necessary. The appeal hearing was completed quite quickly and, for the reasons we gave, the re-trial ought to have been far shorter than before. Indeed, the re-hearing has already been completed so, in making this application, the father only used more money which could have been better utilised meeting his costs of the re-hearing.

13. The father’s failure to comply with the procedural directions made by the Appeal Registrar is an additional reason why discretion should not be exercised in his favour.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Austin.

Associate:

Dated: 11 March 2021