Brown v Brown

[2002] FamCA 389

[2002] FamCA 389

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA 6 of 2002
AT SYDNEY  File No CA 2013 of 1999

BETWEEN:

HELEN JEAN BROWN
Appellant Wife
- and -

KENT PALMER BROWN
Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  KAY, COLEMAN & WARNICK JJ
DATE OF HEARING:                 16 April 2002
DATE OF JUDGMENT:             16 April 2002

APPEARANCES:  Mr Hodgson of Counsel, instructed by John Nicholl & Company, Level 7, 17-21 University Avenue, Canberra, ACT 2600, appeared on behalf of the Appellant Wife.

Mr Millar of Counsel, instructed by Farrar Gesini & Dunn, Level 5, 17-21 University Avenue, Canberra, ACT 2600, appeared on behalf of the Respondent Husband.

BROWN
EA 6 of 2002
Coram:                    Kay, Coleman & Warnick JJ
Date of hearing:     16 April 2002
Date of judgment:  16 April 2002

APPEALS –Costs certificates - whether appeal has been “heard” when no oral argument has been held – whether appeal has “succeeded on question of law” when parties present minutes of consent orders providing for a re-trial - Federal Proceedings (Costs) Act 1981.

Having read summaries of argument from the parties, the Court indicated, when calling over the day’s list, that the appeal seemed certain to succeed at least in part. The matter was stood down temporarily. Subsequently the parties brought minutes of consent orders which were adopted.
The parties then applied for certificates under section 6,8 and 9 of the Federal Proceedings (Costs) Act 1981.

Held: in authorising the granting of certificates

(per Kay J, Coleman & Warnick JJ agreeing)

• Once a 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.

• 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.

APPEAL ALLOWED AND RE-HEARING ORDERED
COSTS CERTIFICATES GRANTED
REPORTABLE

1. KAY J:   This is an appeal against orders that were made by Faulks J on 17 December 2001.  They involved alteration to property interests and spousal maintenance. 

1. The wife has appealed against the orders made in respect of the property issues and the spousal maintenance.  The husband has cross-appealed in respect of the spousal maintenance issues.

1. 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.

1. 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.

1. 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.

1. 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”.

1. 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.

1. 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.

1. 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.

1. 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 and I would propose to make orders which would be in accordance with the minutes of proposed orders and in addition to grant the appropriate certificates.

1. COLEMAN J:   I agree and have nothing to add.

1. WARNICK J:   I also agree.

1. KAY J:   The orders will be as indicated.

I certify that the 13 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate