Balfour and Morley (No.2) - [2016] FCCA 956

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Balfour and Morley (No.2)

Details

AGLC: Balfour and Morley (No.2) [2016] FCCA 956
Case: [2016] FCCA 956
Decision Date: 28 April 2016

CaseChat Overview and Summary

In *Balfour and Morley (No.2)*, the applicant husband sought a costs certificate following proceedings before Judge Burchardt. The specific dispute leading to this application is not detailed in the provided text, but it concerned costs incurred by the husband on 18 November 2015.

The sole legal issue before the Court was whether it was appropriate to grant the applicant husband a Costs Certificate pursuant to section 10(3) of the *Federal Proceedings (Costs) Act 1981*. This required the Court to form an opinion on whether the Attorney-General should be authorised to make a payment to the husband for costs incurred on the specified date.

The Court determined that a Costs Certificate should be granted. This indicates the Court was satisfied that the criteria under section 10(3) of the *Federal Proceedings (Costs) Act 1981* were met, justifying the Attorney-General's authorisation of a payment to the husband for his legal expenses.

Accordingly, the Court ordered that the applicant husband be granted a Costs Certificate pursuant to section 10(3) of the *Federal Proceedings (Costs) Act 1981*, certifying that it would be appropriate for the Attorney-General to authorise a payment to the husband in respect of the costs he incurred on 18 November 2015.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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