Bader and Spinner
[2019] FamCAFC 152
•3 September 2019
FAMILY COURT OF AUSTRALIA
| BADER & SPINNER | [2019] FamCAFC 152 |
| FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal be allowed, that the orders appealed be set aside, that the matter be remitted for rehearing and costs certificates issue pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where appealable error is demonstrated and the appeal should succeed – Where there are a lack of adequate reasons provided by the trial judge – Where the appeal is properly characterised as a Federal appeal, it will succeed on a question of law and it has been listed in a public and formal way – Where the parties have been put to unnecessary expense in pursuing the appeal and the matter must be re-litigated – Appeal allowed – Orders set aside – Proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge – Costs certificates issued as sought by the parties. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) ss 9, 6 and 8 |
| Bhatnagar & Riju [2018] FamCAFC 144 Cramer v Davies (1997) 72 ALJR 146 |
| APPELLANT: | Mr Bader |
| RESPONDENT: | Ms Spinner |
| FILE NUMBER: | MLC | 6810 | of | 2015 |
| APPEAL NUMBER: | SOA | 23 | of | 2019 |
| DATE DELIVERED: | 3 September 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 3 September 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDER DATE: | 5 March 2019 6 March 2019 |
| LOWER COURT MNC: | [2019] FCCA 575 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Tulloch |
| SOLICITOR FOR THE APPLICANT: | Davis Zucco Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr R. Smith |
| SOLICITOR FOR THE RESPONDENT: | Lennon Lawyers |
Orders by Consent
The appeal be allowed.
The orders made on 5 March 2019 and 6 March 2019 by Judge Wilson (as his Honour then was) be set aside.
The Amended Application filed by the respondent on 1 March 2019 and the Application filed by the appellant on 22 February 2019 be remitted to the Federal Circuit Court of Australia for rehearing NOTING THAT the proceedings are now transferred to the Family Court of Australia and thus, in effect, the proceedings will now be re-heard in that Court by a judge other than Wilson J.
The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 him in relation to this appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 her in relation to this appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bader & Spinner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 23 of 2019
File Number: MLC 6810 of 2015
| Mr Bader |
Appellant
And
| Ms Spinner |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the court is an Amended Notice of Appeal filed by Mr Bader (“the husband”) on 10 July 2019 against orders made in the Federal Circuit Court of Australia by Judge Wilson (as his Honour then was) on 5 and 6 March 2019.
The parties have now reached an agreement in relation to the appeal, and seek that consent orders be made providing, in summary, for the appeal to be allowed, for the orders made by his Honour on 5 and 6 March 2019 to be set aside, and for the applications before his Honour on 4 March 2019, namely the Amended Application of the wife filed on 1 March 2019 and the Application of the husband filed on 22 February 2019, to be remitted to the Federal Circuit Court of Australia for rehearing. It is also sought that the parties be granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
There are two issues raised by those orders sought. First, should the appeal be allowed by consent and, secondly, should the parties have costs certificates.
In relation to the first issue I refer to and quote from a decision of the Full Court of this Court in Bhatnagar & Riju [2018] FamCAFC 144, and specifically from the reasons for judgment delivered by Murphy J, which reasons were agreed to by Ainslie-Wallace J and myself as follows:
3.There is some judicial debate as to whether an appellate court must be satisfied of error when an appeal by consent of the parties is sought to be allowed. In Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy, the Full Court of the Federal Court said in relation to a provision similar to the relevant provision of the Family Law Act 1975 (Cth) (“the Act”) (Cf s 94(2) of the Act and s 28 of the Federal Court Act 1976 (Cth)):
[43]In making any consent order the court must be satisfied that the order is within power and appropriate. The question is whether, before it can make an order allowing an appeal by consent of the parties, the court must be satisfied that there was a legal or factual error or an error in the exercise of a discretion by the primary judge.
4. The Full Court of the Federal Court concluded:
[51]In our opinion none of the preceding authorities relieves this court of the duty to be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appellable error.
5.A subsequent Full Court of the Federal Court in Citigroup Pty Ltd v Mason (2008) 250 ALR 7, said that “there may be … a basis for concluding that [Telstra Corporation] was plainly wrong” (at [8]), albeit that the later court conceded that, “[i]n the absence of that contention being advanced and detailed submissions” being provided, they were “constrained to follow the earlier Full Court’s judgment” (at [7]).
6.I am only aware of one decision in this Court in respect of that issue, called Simpson & Brockmann (2009) FLC 93-403. In that case, Warnick J at [5] referred to “some debate in intermediate Appellate Courts” to which I have just referred. Although his Honour did not elaborate on that debate, his Honour said at [6]:
I, for myself, if satisfied that an Appellate Court can make orders allowing an appeal by consent and consequential orders, consider the Court might still decline to do so in particular circumstances…
7.These reasons are given by me pursuant to my view that it is in fact necessary, consistent with what the Full Court of the Federal Court in Telstra Corporation said, for us to be satisfied of appealable error and to give reasons accordingly.
I agree that what was said in that Full Court decision is correct, and I am of the view that here, an appellable error is amply demonstrated, and the appeal should succeed.
In the Amended Notice of Appeal filed on 10 July 2019 there are three grounds of appeal pleaded. The first ground asserts a lack of adequate reasons by his Honour in making the orders that he did, and the other two grounds of appeal assert a failure by his Honour to provide procedural fairness. It is in relation to the question of the adequacy of reasons that the appeal is being conceded by Ms Spinner (“the wife”), and it is on the basis of that ground of appeal that the consent orders are sought. That ground of appeal is as follows:
1.The learned judge erred as a matter of law by failing to give reasons and/or adequate reasons, and in particular:
(a)No reasons were given as to any aspect of the appellant’s Application in a Case filed on 22 February 2019 (being for a warrant, dismissal due to default of the respondent’s application pursuant to Section 79A of the Family Law Act 1975 (“the Act”) and indemnity costs) and listed before the court on 4 March 2019;
(b)In relation to order 4 made on 6 March 2019, no adequate reasons were given as to why the net proceeds of sale of [Property A] should be held on trust when order 9 of the final consent orders made on 26 August 2016 provides that the funds be divided between the parties;
(c)In relation to order 5 made on 6 March 2019, no adequate reasons were given as to why there is to be a further hearing as to matters already determined pursuant to the final consent orders made on 26 August 2016; and
(d)If the further hearing referred to in order 5 made on 6 March 2019 arises out of a determination made pursuant to Section 79A of the Act no adequate reasons are given as to the basis upon which that determination has been made.
Before his Honour on 4 March 2019 were the two applications to which I have referred. However, as is apparent from his Honour’s reasons given on 4 March 2019, there is no reference to the Application in a Case filed by the husband on 22 February 2019, and what his Honour seems to have done, is contained his reasons to the Application filed by the wife on 1 March 2019.
There is a long history in relation to these proceedings, going back as far as 26 August 2016, when final orders for property settlement were made. I do not propose to relate that extensive history, save and except, to make the comment that it is, frankly, difficult to understand how the matter reached the position that it did before his Honour on 4 March 2019. It seems to me, that there were problems along the way in terms of his Honour’s power to make the orders that he did, and the form of applications that were before his Honour.
In any event, in terms of the orders that his Honour made, and specifically order 4 made on 6 March 2019, as pleaded in the ground of appeal, it is readily apparent that no adequate reasons were given as to why the net proceeds of sale of [Property A], should be held on trust, when order 9 of the final consent orders made on 26 August 2016 provides that the funds be divided. Further, in relation to order 5 made on 6 March 2019, it is readily apparent from a perusal of his Honour’s reasons, that no adequate reasons were given as to why there was to be a further hearing as to matters already determined pursuant to those final consent orders made on 26 August 2016.
As a result of that lack of adequate reasons provided by his Honour in the manner outlined, I am satisfied there is appealable error in this case, and it seems to me entirely proper that the parties should consent to the appeal being allowed, the orders of his Honour being set aside, and the proceedings being remitted for rehearing.
In relation to the order sought for remission, although this matter was in the Federal Circuit Court of Australia and the orders were made by Judge Wilson, as his Honour then was, in that court, since the orders have been made, two things have occurred. First, his Honour has been elevated to the Family Court of Australia, and secondly, the proceedings have been transferred to the Family Court of Australia. Thus, although it is appropriate to remit the proceedings to the Federal Circuit Court of Australia, as I see it, the significance of the proceedings having been transferred to the Family Court of Australia will in effect mean that the proceedings will be heard, not in the Federal Circuit Court of Australia, but the Family Court of Australia.
Turning then to the second question, namely the applications by the parties for cost certificates to be granted.
I have clarified with counsel that not only are cost certificates sought in relation to the appeal, but also in relation to the rehearing of the two applications that were before his Honour on 4 March 2019. The applications are therefore made pursuant to ss 9, 6 and 8 respectively of the Federal Proceedings (Costs) Act 1981 (Cth).
Common to those three sections, and specifically in subsection (1) of each, it can be seen that there are three conditions which must be satisfied before the discretion to grant costs certificates is enlivened, namely the existence of a Federal appeal, the success of the appeal on a question of law, and the fact that the court granting the certificate has heard the appeal. Plainly the first two of those requirements are satisfied here. The appeal is properly characterised as a Federal appeal, and as I have explained in addressing Ground 1 of the Amended Notice Appeal, the appeal will succeed on a question of law.
In relation to the third condition, that has in the past proved to be more problematic, but the law is now settled, and the question of whether there can be a hearing of the appeal for the purpose of those subsections to which I have referred, where the orders disposing of the appeal are made by consent and without full argument, was considered by the High Court in Cramer v Davies (1997) 72 ALJR 146. There, Kirby J held that a broad construction should be given to that expression, and “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. Here, the appeal has been listed in a public and formal way, and in my view that requirement is satisfied.
The granting of costs certificates though is clearly a discretionary exercise of power, and it is relevant here that the parties have been put to unnecessary expense in pursuing this appeal, given the error by the primary judge that has been demonstrated, and it will be necessary for the matter to be re-litigated.
Thus, in the circumstances, I am satisfied that the issuing of costs certificates as sought is appropriate.
I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 3 September 2019.
Associate:
Date: 10 September 2019
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