B & B (Costs Certificates)
[2007] FamCA 1177
•28 September 2007
FAMILY COURT OF AUSTRALIA
| B & B (COSTS CERTIFICATES) | [2007] FamCA 1177 |
| FAMILY LAW - COSTS CERTIFICATES – Whether costs certificates can be granted where an appeal is allowed by consent without argument in relation to its merits being heard by the Full Court – Certificates granted on the basis that this was a “federal appeal” which “succeeded on a question of law” and the consent orders were made in open court such that the appeal was “disposed of in a public and formal way”, therefore satisfying the principles set out by Kirby J in Cramer v Davies (1997) 72 ALJR 146. |
| Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 9 Family Law Act 1975 (Cth), s 94(2B)(b) Suitors’ Fund Act 1951 (NSW) |
Brownv Brown (2002) FLC 93-098
S & S [2005] FamCA 852
C & C (unreported, Finn J, 27 April 2005)
H & D (unreported, Finn J, 30 January 2006)
S & S [2006] FamCA 344
W & W and Anor [2006] FamCA 860
Cramer v Davies (1997) 72 ALJR 146
Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491
| APPELLANT: | Mr C J B |
| RESPONDENT: | Ms C A B |
| FILE NUMBER: | CAF | 282 | of | 2004 |
| APPEAL NUMBER: | EA | 68 | of | 2006 |
| DATE DELIVERED: | 28 September 2007 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Finn, May and Boland JJ |
| HEARING DATE: | 30 October 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 30 June 2006 14 September 2006 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPELLANT: | Farrell Lusher |
| COUNSEL FOR THE RESPONDENT: | Mr O'Shannessy |
| SOLICITOR FOR THE RESPONDENT: | Commins Hendricks |
Orders
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as B & B (Costs Certificates).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 68 of 2006
File Number: CAF 282 of 2004
| C J B |
Appellant
And
| C A B |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment relate to applications by an appellant husband and a respondent wife for the grant of costs certificates under s 9 and s 6 respectively of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Federal Proceedings (Costs) Act”) in respect of the costs incurred by them in an appeal by the husband which was allowed by consent and without argument in relation to the merits of the appeal being heard by the Full Court. The issue to be decided by us is whether the costs certificates sought can be granted in such circumstances.
background and relevant statutory provisions
The appeal by the husband which was against parenting orders made by Lawrie J on 30 June 2006 and also against property settlement and other financial orders made by her Honour on 14 September 2006, had been listed for hearing before this Full Court on Monday, 30 October 2006.
On the preceding Thursday, being 26 October 2006, the appellant husband and the respondent wife signed minutes of consent orders by which the appeal would be allowed and new orders made in place of those made by the trial Judge. By that date the appeal books and the appellant’s outline of argument had been filed and served, but no outline of argument had been filed by the respondent.
On Friday, 27 October 2006 the solicitors for both parties appeared before Finn J who, sitting as a single Judge of the Appeal Division of the Court, made orders by consent pursuant to the provisions of s 94(2B)(b) of the Family Law Act 1975 (Cth) (“the Family Law Act”) which gave effect to the minutes of consent orders previously signed by the parties and which were in the following terms:
1. That the appeal be allowed.
2.That the orders made by the Honourable Justice Lawrie in relation to parenting matters on 30 June 2006 and in relation to property settlement, spousal maintenance and child support matters on 14 September 2006 be set aside.
3.That in place of the orders made by the Honourable Justice Lawrie on 30 June 2006 and 14 September 2006 orders be made in terms of the minute of consent orders today before this Court as “Exhibit 1” and a copy of which is attached to these orders.
4.That there be no order as to costs between the parties in relation to the appeal.
5.That the matter of the provision to the parties of costs certificates under the Federal Proceedings (Costs) Act 1981 be stood over to Monday, 30 October 2006 before the Full Court, not before 10.30am.
6.That leave be granted for Counsel for the respondent wife to appear before the Full Court on Monday, 30 October 2006 by telephone-link.
Sub-section 94(2B)(b) of the Family Law Act relevantly provides:
(2B) A Full Court of the Family Court, or a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, may:
…
(b) make an order by consent disposing of an appeal under subsection (1) or (1AA) (including an order for costs); …
In accordance with Order 5 of the orders of 27 October 2006, counsel for both parties appeared before the Full Court on 30 October 2006. In relation to the costs of the appeal which had been allowed by the consent orders made on 27 October 2006, counsel for the husband sought a certificate under s 9 of the Federal Proceedings (Costs) Act1981 (Cth) (“the Federal Proceedings (Costs) Act”) and counsel for the wife sought a certificate pursuant to s 6 of that Act.
Section 9 is in the following terms (emphasis added):
(1)Subject to this Act, and in particular without limiting section 6, where:
(a)a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of Federal appeal in subsection 3(1) succeeds on a question of law; and
(b)in accordance with section 117 of the Family Law Act 1975 , each party to the appeal bears his or her own costs;
the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.
(2)The certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Section 6 is in the following terms (emphasis added):
(1)Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(2)Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.
(3)The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the respondent in respect of:
(a)the costs incurred by the respondent in relation to the appeal; and
(b)any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.
The submissions in support of the applications for costs certificates
The submissions made by counsel for the husband in support of the husband’s application for a s 9 certificate were adopted by counsel for the wife in support of the wife’s application for a s 6 certificate, and were to the following effect.
That so far as the relevant sections of the Federal Proceedings (Costs) Act require a hearing of the appeal, the appeal must be taken to have been “heard” because the Court could not have made the orders without being satisfied that the orders which were substituted for the trial Judge’s orders with respect to property settlement were just and equitable, and so far as the parenting orders were concerned, were proper and in the children’s best interests.
As to the requirement for the appeal to have succeeded on “a question of law”, it was submitted that a consideration of the grounds of appeal would indicate that if the appeal was to have succeeded, it would have to have done so on the basis of an error of law.
It was further submitted that given that the policy of the Family Law Act is to encourage settlements, it would be contrary to that policy to in effect require parties to prosecute an appeal, which both parties considered should succeed, simply for the purpose of obtaining costs certificates.
previous practice and decisions of the appeal division of the family court
It is our understanding that prior to the decision of the Full Court of this Court in Brownv Brown (2002) FLC 93-098 in 2002, it had not been the practice of the Full Court to grant certificates under s 9 or s 6 (or indeed under s 8 which provides for a certificate in relation to a new trial) where an appeal was allowed by orders made by consent, even if such orders were made after the Full Court had heard full argument in relation to the appeal but before delivery of a judgment.
The first case, of which we are aware, in which there was a departure from that traditional practice was Brown (supra). In that case the wife had appealed property and spousal maintenance orders and the husband had cross appealed the spousal maintenance orders. The precise circumstances in which the appeal and cross appeal had settled, and the reasons why the Full Court was prepared to grant certificates in that case were explained by Kay J, with whom Coleman and Warnick JJ agreed, in the following way:
3.The parties each filed summaries of argument, and when the matter was called on for hearing this morning, the Court made preliminary comments to the parties indicating that it appeared from the summaries of arguments that there was a likelihood that the appeal would certainly succeed in respect of an error of the omission of a share holding of the husband to the extent of $130,000 which would have affected the size of the pool of assets to be divided and would have had a flow-on effect to the comparative wealth of the parties. That in turn would have had a flow-on effect into issues of spousal maintenance.
4.The Court also indicated that, on the face of it at least, there were significant doubts about whether or not the issues of spousal maintenance had been adequately dealt with, in that the statutory requirements and the necessary findings may not have been attended to. As a result of the Court's comments the parties’ counsel returned later in the morning with suggested minutes of proposed orders. An issue has arisen as to whether or not in the circumstances it is appropriate to make orders for the issue of certificates under the Federal Proceedings (Costs) Act 1981.
5.The relevant certificates that are sought are a certificate on behalf of the appellant under s 9, a certificate on behalf of the respondent under s 6 and certificates on behalf of both parties for a re-trial under s 8.
6.Each of those sections provides inter alia that “the Court that heard the appeal may grant a certificate”, if the appeal “succeeds on a question of law”.
7.The criteria upon which a certificate may be granted are not set out in the legislation and it has been held by this Court in many places, including Tyson (No 2) (1993) FLC 92-401; 16 Fam LR 795, that the discretion is an unfettered discretion and has not been the subject of any legislative guidelines at least.
8.The issue that this case turns on is whether or not this Court can be said to not only have heard the appeal but that the appeal then has succeeded on a question of law. In my view once the matter is called on for commencement and then dealt with, the Court can be said, within the meaning of the legislation, to have heard the appeal.
9.In circumstances where the parties wish to make no further submissions but merely to jointly suggest the appropriate outcome having regard to the results that must flow from the reappraisal from the pool of assets, it can be said that the appeal has succeeded on a question of law. As the new orders allow the re-hearing of the matter, particularly the maintenance matter, it can properly be said that his Honour's discretion in the circumstances has miscarried.
10.As the error is not a result of anything the parties have done, and having regard generally to the financial circumstances of the parties, it is appropriate that certificates as sought are granted…
Thus in Brown costs certificates were granted in circumstances where the parties had filed their written summaries of argument, where the appeal had been called on for hearing on the date on which it had been listed for hearing with the Full Court then giving an indication that the appeal would be likely to succeed, and with the appeal then being allowed by consent.
Subsequently in giving the reasons of the Full Court for the grant of costs certificates in relation to the appeal in S & S [2005] FamCA 852 which had also been allowed by consent, Faulks DCJ said:
3.This was a case not quite the same as any other appeal which might be resolved by compromise when the result may be in doubt before the Court had finally determined the issues. This was a matter in which the appeal proceeded on the basis that the trial Judge had made an error - an error acknowledged by both appellant and respondent and, indeed, by the trial Judge himself.
…
5.In our opinion it is artificial to require that the Court should have in fact sat and commenced hearing the proceedings to satisfy the provisions of ss 6 and 9 of the Federal Proceedings (Cost) Act 1981 to constitute the hearing of the appeal. Substantial arguments were presented in advance. These required preparation on the part of both counsel and the Court and, in our opinion, to require the Court physically to sit and open proceedings and proceed for some time before determining would be an artificial and unreasonable restriction.
6.So far as the “question of law” is concerned, although it might be said that his Honour’s original error arose out of a mathematical miscalculation, we are satisfied on the arguments advanced by Mr Lethbridge of Senior Counsel, that not only did the matter involve a question of mathematics but also an exercise of discretions and, in the circumstances, we believe it is proper to categorise the errors as questions of law.
Although it might appear from paragraph 5 of his Honour’s reasons that the consent orders allowing that appeal may have been made prior to the appeal being called on for hearing before the Full Court, it is clear from the orders which appear at the conclusion of his Honour’s judgment, that the Full Court made the consent orders on the day when the appeal was listed for hearing before that Court.
Similarly in the appeal of Beattie & Pace (27 July 2006) which was allowed by consent and in which costs certificates under s 9 and s 6 were granted to the parties, it is clear from the formal orders of the Court (no reasons for judgment having apparently been issued) that the consent orders allowing the appeal were made by the Full Court on the date on which the appeal had been listed before the Court for hearing, and that the legal representatives of the parties had provided the Court with the minute of consent orders.
There have also been a number of appeals from the Federal Magistrates Court in which single Judges of the Appeal Division of this Court (exercising jurisdiction under s 94AAA(3) of the Family Law Act) have granted costs certificates in circumstances where the appeal has been allowed by consent, either after being heard but while judgment was reserved, or where outlines of argument have been filed but with the Court being presented with minutes of consent orders when the appeal was called on for hearing. See, for example, C & C (Finn J, 27 April 2005); H & D (Finn J, 30 January 2006); S & S [2006] FamCA 344 (Warnick J, 12 May 2006); W & W and Anor [2006] FamCA 860 (Warnick J, 1 September 2006).
The distinguishing features of the present case
The present case can be distinguished from the above-mentioned decisions of appellate benches of this Court in that some days prior to the date on which the appeal was listed for hearing before the Full Court, it was allowed by consent by a single Judge of the Appeal Division of this Court exercising jurisdiction under s 94(2B)(b) of the Family Law Act.
Thus the Court which made the consent orders allowing the appeal was constituted by a single Judge of the Appeal Division of this Court. The orders were not made by the Full Court of this Court, although that was the Court to which the applications for costs certificates were made.
Furthermore unlike most of the cases referred to above, in the present case only the appellant had filed an outline of argument at the time the consent orders allowing the appeal were made.
Nevertheless, it was vigorously submitted in support of the applications to us for costs certificates, that there were sound policy reasons why once an appeal has been settled, the parties should not be required to wait for the making of the consent orders by the Full Court on the date on which the appeal is listed for hearing, but rather should be able to approach a single Judge of the Court (as s 94(2B)(b) clearly envisages may happen) for the making of the consent orders once the terms of settlement are signed, thereby allowing court time and resources to be directed to other appeals waiting to be heard. We consider that there is great force in this submission.
The grant of costs certificates by kirby j in cramer v davies
In our consideration of the present case, we have obtained great assistance from the decision of Kirby J in Cramer v Davies (1997) 72 ALJR 146, in which his Honour sat as a single Justice of the High Court to determine an application for costs certificates under the Federal Proceedings (Costs) Act after a full bench of the High Court had allowed an appeal by consent and without hearing any argument.
In that case the High Court had granted the mother special leave to appeal from a decision of the Full Court of this Court. In its decision the Full Court had dismissed an appeal by the mother against guardianship and custody orders made by the trial Judge in somewhat unusual circumstances but essentially in the absence of the mother.
Special leave having been granted, the mother’s appeal was listed for hearing before a Full Court of the High Court on 3 October 1996. However, on 27 September 1996 an affidavit was sworn by a solicitor, Mr Peter Wells, and filed in the High Court. As recorded by Kirby J (in his reasons for judgment in relation to the subsequent application by the respondent father for costs certificates):
[9]…The affidavit was filed with the consent of both parties to the appeal. It recited that written consent had been given to the course proposed by the solicitor who had been appointed as the special representative to represent the interest of the children. Mr Wells' affidavit recited the consent of the parties to the disposition of the appeal to terms which, with the concurrence of the separate representative, were to be placed before [the High Court]. The affidavit further stated that the parties concurred in the view that the Full Court of the Family Court had erred in upholding the order of [the trial Judge] and dismissing the appeal from her order providing finally for the custody of the children. It recited that [the mother], [the father] and the separate representative were all of the view that, by consenting to the orders, the parties were acting in the best interests of the children of the marriage in endeavouring to bring the matter to retrial as expeditiously as possible.
His Honour also recorded that the affidavit from Mr Wells and a certificate from the Senior Registrar of the High Court reciting the background facts and the orders which the parties sought, were placed before the High Court (constituted by Dawson, Toohey, McHugh, Gummow and Kirby JJ) on 2 October 1996 (that is, apparently the day before the appeal was listed for hearing). As Kirby J then further explained:
[10]… When the matter was called, Dawson J recited that he had the certificate from the Senior Registrar certifying that she held a consent duly signed by the solicitors for the appellant, the respondent and the separate representative, to the making of orders in the following terms:
1. The appeal from the part of the judgment of the Full Court of the Family Court of Australia given and made on 29 March 1996 be allowed.
2. The judgment of the Full Court of the Family Court of Australia made on 29 March 1996 as far as it relates to orders for final custody be set aside in so far as the Court dismissed the appeal and in lieu thereof the appeal to that Court be allowed.
3. The order of the Full Court of the Family Court of Australia made on 16 August 1996 ordering costs against the appellant to be set aside.
4. The order of the Family Court of Australia made on 15 December 1995 for sole custody be set aside.
5. The Family Court of Australia be directed to rehear the matter by a judge of that Court other than the trial judge and that the evidence taken in the trial be tendered to the trial judge on the retrial for consideration in the retrial.
6. The order of the Family Court of Australia made on 11 April 1996 as to the costs of the trial be set aside with leave to either party to argue the question of costs of the trial at the conclusion of the custody hearing in the Family Court.
7. There be no order as to costs with respect to the application for special leave to appeal to the High Court of Australia and the appeal to the High Court of Australia.
Dawson J, on behalf of the Court, proceeded directly to state: "And the Court makes the order accordingly." Subsequently, an order was taken out under the hand of the Deputy Registrar of this Court in terms of the foregoing orders.
On 11 December 1997 a summons filed by the respondent father seeking a certificate under s 6 of the Federal Proceedings (Costs) Act in respect of the costs of the special leave and appeal proceedings in the High Court and of the appeal to the Full Court of the Family Court and also under s 8 of that Act in relation to the new trial of the proceedings, was heard by Kirby J. In the event his Honour made orders granting the costs certificates sought by the respondent father under s 6 and s 8.
In his reasons for judgment in relation to the grant of the costs certificates, after outlining the history of the proceedings in the Family Court and in the High Court, his Honour identified the “general purpose” of the Federal Proceedings (Costs) Act by reference to a statement which he had made (as President of the New South Wales Court of Appeal) in relation to similar New South Wales legislation being the Suitors’ Fund Act 1951 (NSW), in Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491 at 494:
The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application is the relief of litigants against the costs inevitably incurred when appeal review discloses and error of law requiring correction. The object is to ensure that litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow.
However his Honour then said that while he would “keep the general purpose in mind” in approaching the meaning of [the Federal Proceedings (Costs) Act]”, it was “[i]n the end” the language of that Act which would govern the determination of the applications which were before him. In this context his Honour identified the following three preconditions for the grant of a costs certificate under s 6:
· the existence of a “federal appeal”;
· the necessity to establish that the appeal has succeeded on a question of law;
· the requirement that the court concerned should have heard the appeal.
As to the first matter, being the existence of a “federal appeal”, his Honour concluded:
[15]… Having regard to the terms of the definition in par (d) of s 3(1) of the [Federal Proceedings (Costs) Act], it is clear that the proceedings before the Family Court of Australia and before this Court were federal appeals.
As to the second matter, being the necessity to establish that the appeal has succeeded on a question of law, his Honour said:
[15]… Certainly, the appeal to this Court succeeded. It succeeded by virtue of the orders of this Court based upon the consent of the parties expressed to be with the concurrence of the separate representative.
[16]The facts which I have earlier set out, being the foundation of the grant of special leave to appeal and of the appeal to this Court, suggest that the basis of the “success” was a recognition by all parties that an error of law had occurred at trial in the Family Court. At least in proceedings such as are described, it is an error of law where a judge does not conform to the requirements to procedural fairness (natural justice).
It was, however, the third precondition which his Honour acknowledged to be “the critical question”, saying (emphasis added):
[16]… Therefore, the critical question is whether the third precondition to the application of the Act is made out. That requires that the court concerned should have "heard the appeal". Only where the court has heard the appeal may it, on the application of the respondent, grant to the respondent the costs certificate in respect of the appeal which is sought. Can there be a "hearing of the appeal" for this purpose where the orders disposing of the proceedings are made by consent and without full argument?
His Honour then set out the following arguments in favour of “a narrow construction” of the word “heard”, being that “a full hearing on the merits” was required:
[17] 1. If the Parliament had meant that it was sufficient that the appellate court should merely have made the order allowing the appeal it could have so provided but, instead, it provided that the certificate could be granted only by a court that "heard the appeal".
2.The provision of the certificate is a benefit not normally enjoyed by a litigant; it is a benefit provided by statute on conditions. Arguably, one condition might be that the court which grants that certificate has reached its own satisfaction that it is proper to do so after having heard the appeal on its merits. Only then could the basis of the success of the appeal be determined, so that it could be said to be "on a question of law".
3. Unless such an approach were taken, parties could agree amongst themselves to dispose of appeals and thereby, in effect, burden the public purse by their agreement, as distinct from suffering the disadvantage of cost orders or the necessary incurring of costs as a result of legal error only ultimately demonstrated by a full hearing on the merits.
4.A narrow interpretation, protective of public funds, should be adopted given the high costs of litigation and the need to ensure that such funds are made available only in cases where the justification of a certificate is manifestly demonstrated by a full hearing of the appeal.
However his Honour then expressed his preference for a broader construction as contended for by the respondent father, being that “a ‘hearing’ means no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way.” The following arguments in support of this broader interpretation were then set out by his Honour:
1.The narrower construction might force or encourage parties to go through the charade of a formal, even extended, hearing in a case such as, arguably, the present was, where it was plain that the appeal would succeed, and even where all parties agreed that such a hearing was futile and unnecessary, either to the parties, to the community or to the appellate court.
2.The Court did in fact "hear" the appeal in the sense of hearing and granting the application for special leave and having the appeal listed before it. It had before it the affidavit of Mr Wells filed, as stated, with the knowledge of all parties and of the separate representative. If the Court had itself any doubts as to the order that was being sought it could have indicated what those doubts were and even required the matter to proceed to a longer hearing of some kind. The inference was that the Court was satisfied that the appeal should be allowed. That satisfaction was, so it was suggested, sustained by the successful special leave application, which stands at the gateway of proceedings in this Court and by the material put before the Court to support the consent orders.
3.The general objective of the Act is remedial. It has been expressed as one designed to ensure that where errors of law occur in courts of law, which are not the fault of the parties but by definition the fault, if of anybody, of the administration of justice, the burden of costs which is invariably substantial should not fall upon the parties but should fall upon the community generally through laws such as the Act. Given the remedial nature of the Act, a narrow construction of its language would defeat the attainment of its objectives. A broad construction of the word "heard" would advance the attainment of those objectives. The latter should therefore be preferred.
Although acknowledging that the amounts which the parties would recover as a consequence of the grant of the costs certificates would not be substantial, his Honour also acknowledged that he had to consider that the interpretation which he proposed to adopt, would be one “which may have implications for other cases”. However his Honour went on to balance that concern against the following consideration:
[19]…Experience in appellate courts suggests, and in particular in appeals in family law matters, that they tend to be hard fought nowhere more so than in cases involving custody orders. Concurrence in orders allowing an appeal is typically only given where it is plain that the hearing of the appeal will inevitably result in such, or like, orders. In my view, such was the case in these proceedings.
In connection with his Honour’s concern regarding the implications for other cases of his adoption of the broader construction of the requirement for a “hearing” of the appeal, it should be noted that his Honour recorded in his reasons (at paragraph 12) that he had caused notice of the proceedings to be given to the Commonwealth so that it might seek leave to intervene or make submissions as amicus curiae. But the Commonwealth had not elected to take either course.
His Honour was thus able to express himself satisfied that the three pre-conditions for the grant of a certificate under s 6 (and also under s 8) existed. Thus he granted the certificates sought.
We would add here that the pre-conditions which his Honour identified for the grant of certificates under s 6 (and s 8) would also apply to the grant of a certificate under s 9 (that is, to a successful appellant), although there is an additional requirement in s 9 which is relevant for present purposes, that being, that each party to the appeal bears his or her costs in accordance with s 117 of the Family Law Act. That requirement or precondition would be fulfilled in this case given the terms of Order 4 of the orders of 27 October 2006.
Application of the principles in cramer v davies to the present case
In the present case the first of the preconditions enumerated by Kirby J for the grant of a certificate under s 6, and as we said above also under s 9, being the existence of a “federal appeal” presents no difficulty. It clearly exists in the present case which involved an appeal from a single Judge of this Court to the Full Court of this Court (see paragraph (j) of the definition of “Federal appeal” in s 3(1) of the Federal Proceedings (Costs) Act).
We find it convenient to consider the third precondition, being the issue of “a hearing” of the appeal, before considering the second precondition, being whether the appeal can be said to have succeeded on a question of law.
It has to be remembered at the outset of our discussion of the third precondition, that this Court does not have the special leave procedure of the High Court on which Kirby J was able to rely (in the second of the arguments for the broader construction of “hearing”) to satisfy himself that the High Court had “heard” the appeal.
Nevertheless on the basis of Kirby J’s adoption of the broader construction of the expression “the court that heard the appeal” as meaning or requiring “no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way”, we can be satisfied that that precondition is fulfilled in the present case. That is because when on 27 October 2006 Finn J exercising jurisdiction under s 94(2B)(b) of the Family Law Act, made by consent the orders which are set out in paragraph 4 of these reasons, those orders were made in recorded proceedings in open court with the solicitors for both parties appearing by telephone. Thus the appeal was in Kirby J’s words, disposed of “in a public and formal way”.
We would also observe in this context that it seems clear having regard to the course of the proceedings in the High Court in Cramer v Davies, that the power to grant costs certificates under the Federal Proceedings (Costs) Act can be exercised by a differently constituted court than the court which allowed the appeal by consent; in other words, different members of the court in question may exercise the separate functions of making the orders allowing the appeal by consent and of granting the costs certificates. That this is so would seem to be made clear by s 12 of the Federal Proceedings (Costs) Act which provides:
The jurisdiction conferred on a court by this Act to grant costs certificates may be exercised by a member of that court sitting in Chambers.
Thus nothing would turn on the fact that in this case the orders allowing the appeal were made by a single Judge exercising jurisdiction under s 94(2B)(b) when the costs certificates would be granted by the Full Court.
We would, however, observe that having regard to the course of the proceedings in Cramer v Davies in the High Court and the provisions of s 12 of the Federal Proceedings (Costs) Act, that a single Judge exercising jurisdiction under s 94(2B)(b) could grant costs certificates (as indeed single Judges can do when they allow appeals on questions of law from the Federal Magistrates Court). Indeed this would seem the preferable course in the future in cases such as the present, thereby avoiding the need for a separate application to the Full Court for costs certificates.
We return now to the second precondition, being that the appeal has to have succeeded on a question of law. It seems to us with respect that it is more difficult for a Court exercising the appellate jurisdiction of this Court to be satisfied regarding the existence of this precondition than it would be for the High Court which has the benefit of the special leave procedure as was referred to by Kirby J in his discussion (in paragraph 16 of his reasons) of the second precondition.
Whether a court exercising the appellate jurisdiction of this Court will be able to be satisfied that an appeal which has been allowed by consent and without the Court having heard full argument can be said to have “succeeded on a question of law” will in each case depend on the material which the Court has before it.
In some cases an error of law asserted by the grounds of appeal may be clear on the face of the orders or the reasons for judgment of the trial Judge. In other cases there maybe some indication given by the trial Judge subsequent to the making of his or her orders, that there is an error in those orders or in the supporting reasons for judgment which cannot be remedied by an application of the slip rule and would amount to an error of law. In other cases it may be necessary to consider the orders or supporting reasons for judgment in the light of the written outline of argument of the appellant, and if available, that of the respondent (in which, it is always possible, the error of law may be conceded).
It is obviously impossible to state exhaustively the ways in which this Court could satisfy itself sufficiently that an error of law has been made which would provide the basis for the success of the appeal and thus the grant of costs certificates. It can only be said that in reaching such a conclusion, the Court will always need to be conscious of the implications of its conclusion for the public purse.
In the present case so far as the parenting orders were concerned, one of the complaints contained in the husband’s grounds of appeal and relied on before us by his counsel in order to establish an error of law for the purpose of the grant of a costs certificate, was the fact that her Honour had failed to identify correctly the applications of the parties which were before her. In particular it was asserted that her Honour had completely neglected to consider, or even identify, the wife’s alternative proposal to remain in the New South Wales country town where the family had lived before the breakdown of the marriage, in the event that her primary application to relocate herself and the children to Melbourne, was unsuccessful. It is clear from her Honour’s judgment that she did not consider or identify this proposal. This omission is, in our view, an error of law.
Other grounds of appeal directed to the parenting orders, attacked her Honour’s failure to have regard to the evidence of the author of the Family Report, Dr Milch, or to explain her failure to do so. Again these omissions on the part of her Honour are clear on the face of her reasons for judgment, and can also, in our view, be regarded as errors of law.
So far as the trial Judge’s property settlement orders are concerned, the grounds of appeal directed to those orders include the complaints that her Honour failed to make any findings in relation to or any assessment of the parties’ contributions, and that she failed to make findings in relation to all relevant s 75(2) matters. Again these failures on the part of the trial Judge are evident on the face of her judgment and must be considered errors of law.
Conclusion
We are thus satisfied that the necessary three preconditions as explained by Kirby J in Cramer v Davies for the exercise of the discretion to grant a costs certificate to the appellant husband under s 9 of the Federal Proceedings (Costs) Act and to the respondent wife under s 6 of that Act are satisfied, as also is the further precondition required under s 9 that each party is to bear his or her own costs. We are further satisfied that this is an appropriate case in which to exercise that discretion. Accordingly we propose to grant the costs certificates sought by each party.
I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 28 September 2007
90
2
3