Balfour and Morley (No.2)
[2016] FCCA 956
•28 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALFOUR & MORLEY (No.2) | [2016] FCCA 956 |
| Catchwords: FAMILY LAW – Application for costs’ certificate pursuant to the Federal Proceedings (Costs) Act. |
| Legislation: Federal Proceedings (Costs) Act 1981, s.10(3) |
| Cases cited: Re: Morris; Morris v Maroudas (1986) 66 ALR 699 Cundy v ACT Cross Country Club Inc [2009] FCA 1461 Griffin & Croft [2015] FCCA 2685 In the Marriage of Tyson (No 2) (1993) 16 Fam LR 795 |
| Applicant: | MR BALFOUR |
| Respondent: | MS MORLEY |
| File Number: | MLC 7051 of 2011 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 5 February 2016 |
| Date of Last Submission: | 22 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 28 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tynan |
| Solicitors for the Applicant: | Taussig Cherrie Fildes |
| Counsel for the Respondent: | Ms Foong |
| Solicitors for the Respondent: | Pasha Legal |
ORDERS
The Applicant husband be granted a Costs Certificate pursuant to the provisions of s.10(3) 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 husband in respect of the costs incurred by him on
18 November 2015.
IT IS NOTED that publication of this judgment under the pseudonym Balfour & Morley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7051 of 2011
| MR BALFOUR |
Applicant
And
| MS MOLREY |
Respondent
REASONS FOR JUDGMENT
In this matter the husband filed an Application in a Case on
23 December 2015 seeking a Costs Certificate pursuant to s.10(3) of the Federal Proceedings (Costs) Act 1981 in relation to the costs of the attendance of legal practitioners on 18 November 2015 to a maximum of $3,000.
On 5 February 2016 I delivered judgment in the substantive Application filed by the wife and put in place a program for written submissions in relation to the Costs Certificate issue. I drew the parties’ attention to the competing authority as to whether or not the Court had power to make such an order in the circumstances with which we are concerned. It should be recorded that, relevantly, the matter could not proceed on 18 November 2015 before Judge Baker as her Honour had another matter proceeding and the trial was adjourned to the following day before me.
As I have indicated there has been from time to time a clear difference of opinion between judges from a number of superior courts as to whether or not this sort of circumstances with which we are presently concerned constitutes a proceeding which is “discontinued and then a new hearing is ordered” (section 10(3)(a) of the Act).
While I confess that personally I find the reasoning of Muirhead J in
Re: Morris; Morris v Maroudas(1986) 66 ALR 699 the more persuasive argument, it is clear that subsequent decisions of the Federal Court have not accepted that that is the case. In the ultimate I am persuaded by the decision of Perram J in Cundy v ACT Cross Country Club Inc [2009] FCA 1461, that the Court does have power to make a Costs Certificate order in the circumstances presently obtaining. While the factual position was slightly different in that case, in substance his Honour came to the conclusion that he did have power to grant a Costs Certificate where a proceeding was aborted because a video link did not work satisfactorily. In this case the matter was called on but did not proceed because there was not a judge available to hear the matter at the time.
It would be of assistance to any inferior court such as this one if the apparent conflict in earlier authority were to be definitively resolved, but there is certainly no power in my role as a judge in the inferior trial court to endeavour to do so. I simply apply the most recent authority to which I have been referred (noting that a fellow judge in this Court has in Griffin & Croft [2015] FCCA 2685 adopted the same approach as Perram J).
I note the observations of the Full Court of the Family Court In the Marriage of Tyson (No 2) (1993) 16 Fam LR 795 where the Court relevantly said:
“The grant or refusal of a costs certificate under the Act is purely discretionary, and the Act itself lays down no guidelines for the exercise of that discretion. Without intending to be exhaustive, matters such as the overall reasonableness or otherwise of the attitude adopted throughout the proceedings by the party applying for the certificate to the relief sought by the other, the financial resources of the applicant, and the likely quantum of that party's total costs …”
All these matters appear relevant for consideration by the court in the exercise of the discretion, as also is fact that the funds to honour such Certificate must come from the public purse.
In this case the position of the Applicant for the Costs Certificate has not in the main been unreasonable although he was in part unsuccessful in this Application for an increase in the time the children were to spend with him. His Financial Statement in 2012 discloses an income in over $140,000, but there is no way of knowing whether that has either increased or decreased since.
Taking all relevant matters into consideration, I think that in this particular case a Costs Certificate should issue. The fact is that the husband was in a position to proceed on the day and was unable to do so because of the Court’s lack of judicial availability, not through any neglect, default or improper act on his part. There will be an order accordingly.
The assessment or fixing of quantum will no doubt be undertaken by the Attorney-General’s department.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 28 April 2016
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