Budding and Budding (Costs)
[2011] FamCAFC 41
•28 February 2011
Family Court Of Australia
| BUDDING & BUDDING (COSTS) | [2011] FamCAFC 41 |
| FAMILY LAW - COSTS – Application for a costs certificate by Wife – Where the appeal succeeded on a question of law – parties with modest financial circumstances – Husband bankrupt – application for a costs certificate for the appeal granted. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Budding & Budding [2009] FamCAFC 165 |
| APPELLANT: | MR BUDDING |
| RESPONDENT: | MS BUDDING |
| FILE NUMBER: | MLC | 10714 | of | 2007 |
| APPEAL NUMBER: | SA | 43 | of | 2009 |
| DATE DELIVERED: | 28 February 2011 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | Written Submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 April 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 327 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sala |
| SOLICITOR FOR THE APPELLANT: | Issac Brott & Company |
| COUNSEL FOR THE RESPONDENT: | Mr Scriva |
| SOLICITOR FOR THE RESPONDENT: | Chiodo Madafferi |
Orders
The Respondent Wife is granted 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 Wife in respect of the costs incurred by the Wife in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Budding & Budding (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 43 of 2009
File Number: MLC 10714 of 2007
| MR BUDDING |
Appellant
And
| MS BUDDING |
Respondent
Reasons For Judgment
Introduction
Before me for hearing is an application by Ms Budding (“the Wife”) for costs in relation to the successful appeal by Mr Budding (“the Husband”) against an order made by Federal Magistrate Bender that the Husband pay to the Wife lump sum spouse maintenance of $40,000.00.
On 11 September 2009 I published my reasons for judgment and made the following orders:
1. The appeal be allowed.
2. The proceedings for spouse maintenance be remitted to the Federal Magistrates Court for rehearing by a Federal Magistrate other than Federal Magistrate Bender.
On 11 September 2009 I also made the following order:
1. Both parties be granted liberty to apply within 21 days of today’s date for costs of and incidental to the appeal proceedings determined by order of 11 September 2009.
On 2 October 2009 the Wife filed an application for a costs certificate “for the costs of an incidental to the appeal and rehearing in the Federal Magistrates Court before Federal Magistrate Walters”. In other words the Wife sought a certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal and a certificate pursuant to s 8 of the said Act in respect of the rehearing.
Due to an oversight by the Southern Appeals Registry the application was first provided to me in January 2011. I note that no correspondence had been received by the Court from either the Husband or the Wife since the filing of the application in October 2009 and my receipt of the application in January 2011.
Background
The relevant background to the proceedings is summarised in my reasons for judgment pronounced on 11 September 2009: see Budding & Budding [2009] FamCAFC 165.
Proceedings were commenced in the Family Court when an application was filed by the Wife. On 4 May 2007 the proceedings were transferred to the Federal Magistrates Court.
As I have already observed, the Wife’s application for spousal maintenance was heard by Federal Magistrate Bender on 8 April 2009 and her Honour made an order that the Husband pay the Wife a capitalised lump sum payment of $40,000.00.
On 5 May 2009 the Husband filed a notice of appeal and the appeal was heard by me on 27 August 2009. On 11 September 2009 I pronounced judgment.
On 30 September 2009 Federal Magistrate Walters made the following orders:
1. Pursuant to section 45 of the Federal Magistrates Act 1999, the Court declares that it is in the interests of justice that there be discovery.
2. Within 28 days of the date hereof, the husband and the wife give to each other discovery on oath of all documents which they have or have had in their respective custody, control or possession relating to the matters in issue in the proceedings herein.
3. The parties attend a Conciliation Conference with a Registrar of the Federal Magistrates Court of Australia at the Melbourne Registry on 24 November 2009 at 2.15 p.m.
4. The matter otherwise be adjourned to 2 December 2009 at 9.30 a.m. for mention only.
On 2 October 2009, as I have already observed, the Wife filed the application which is now before me for hearing.
Then on 24 November 2009 the matter settled and the directions hearing set for 2 December 2009 was vacated. By consent, the Federal Magistrate ordered:
1. That upon the wife within ninety (90) days from the date of these orders being paid the sum of $4000.00;
2. The wife file within seven (7) days thereof a Notice of Discontinuance of the proceedings;
3. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under there or any subsequent orders:
(i)each party be solely entitled to the exclusion of the other to all other property (including chose-in-action) in the possession of such party as at the date of these orders;
(ii)monies standing to the credit of the parties in any joint bank account are to become the property of the Husband/Wife
(iii)each party forego any claims they may have to any superannuation benefits belonging to or earned by other;
(iv)insurance policies remain the sole property of the beneficiary named therein;
(v)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(vi)any joint tenancy of the parties in any real or personal estate is hereby expressly served.
THE COURT NOTES
That pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
Upon receipt in January 2011 of the application for a costs certificate I caused a letter to be sent by the Regional Appeal Registrar to the solicitors for the Husband and the Wife. The letter was sent by email and by facsimile on 31 January 2011 and it was said:
I refer to the orders made 11 September 2009 and note that the respondent made application for a costs certificate on 2 October 2009.
Due to my oversight, the application has only recently been brought to the attention of the Honourable Justice O’Ryan. Please advise by close of business this Friday, 4 February 2011 as to whether the appellant wishes to be heard on this application.
On 7 February 2011 the Regional Appeal Registrar sent another letter by email and facsimile to the solicitors of the Husband and the Wife and said:
I refer to my letter of 31 January 2011 and note that there has been no reply from the solicitors for the appellant. I confirm that the respondent’s application for a costs certificate filed 2 October 2009 will be been [sic] referred to the Honourable Justice O’Ryan for consideration. The parties will be notified of an outcome in due course.
On 8 February 2011 the Regional Appeal Registrar received a letter by facsimile from the solicitors for the Wife. It was said:
We refer to the abovementioned matter and your facsimiles of 31 January and 7 February 2001 [sic] and apologise for the delay in responding, however the writer has recently been involved with respect to a trial before His Honour Justice Cronin.
With respect to [Mr Budding], it is our understanding that pursuant to the Order of Registrar Hetyay of the Federal Magistrates Court of Australia made 20 April 2010, a sequestration order was made against [Mr Budding] with the act of bankruptcy being 27 May 2009.
We are currently in the process of obtaining instructions from [Mr Budding]’s trustee in bankruptcy and shall advise you in due course.
Upon receipt of this letter, I caused a letter to be sent by the Regional Appeal Registrar to the solicitors of the Wife, the Husband and the Trustee in Bankruptcy in which it was said:
Further to my recent communications, I confirm that given the imminence of Justice O’Ryan’s retirement, he must deal with this matter in the next 2 to 3 weeks. He is prepared to allow the Appellant Husband until 21 February 2011 for the Trustee in Bankruptcy to make an application for costs supported by written submissions or to respond to the Wife’s application for a costs certificate. Thereafter, his Honour proposed to dispose of the matter.
As of Friday 25 February 2011, no further communication has been received from the Husband’s Trustee in Bankruptcy.
Relevant Principles
Section 6 of the Federal Proceedings (Costs) Act provides:
(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.
Section 8 of the Federal Proceedings (Costs) Act provides:
(1) Subject to this Act, where, in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party to the cause, grant to the party a costs certificate in respect of the new trial.
(2) Subject to this Act, where, in a Federal appeal, being a Federal appeal against a conviction (whether on indictment or otherwise) or a Federal appeal in a sequence of appeals which includes an appeal against a conviction (whether on indictment or otherwise), that succeeds on a question of law, the court that heard the Federal appeal grants a new trial of an accused person, the court may, on the application of the accused person, grant to the accused person a costs certificate in respect of the new trial.
(3) The certificate that may be granted under subsection (1) or (2) to a party to a cause or to an accused person, as the case may be, by a court that has granted a new trial 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 that party or accused person in respect of such part as the Attorney‑General considers appropriate of any costs incurred by that party or accused person in relation to the new trial.
CONCLUSION
Although no application was made by the Husband pursuant to s 117 of the Family Law Act 1975 (Cth) that the Wife pay the costs of the appeal and also no application by the Husband for a certificate pursuant to 9 of the Federal Proceedings (Costs) Act, I am satisfied that I have the power to grant a certificate to the respondent Wife pursuant to s 6 of the Federal Proceedings (Costs) Act.
The appeal was a Federal appeal for the purposes of the Federal Proceedings (Costs) Act.
There were seven grounds of appeal promulgated before me at the hearing and I found in favour of each of those grounds. In my conclusion, I stated the following:
58. In summary, I am of the view that the appeal should be allowed. The Federal Magistrate failed to consider and apply the relevant statutory provisions. The Federal Magistrate failed to adequately consider if it was proper to make an order for spouse maintenance and whether there were appropriate circumstances to order the payment of a lump sum amount. As well, the Federal Magistrate failed to give adequate reasons. Thus there were errors of law.
I also said at [59] of my reasons that it was regrettable that the matter had to be remitted given the amount involved and the costs of the hearing, the appeal and the eventual rehearing. I also said: “However, the Federal Magistrate made significant errors and as I said in discussion at the hearing, which was agreed, I can not re-exercise the discretion. I do not have the evidence of the Wife before me”.
Both the Wife and the Husband did not specifically make an application for an order pursuant to s 117(2) of the Family Law Act and no submissions were made by the Wife in relation to each of the matters in paragraphs (a) to (g) of s 117(2A). Although I am of the view that in considering the Wife’s application pursuant to s 6 of the Federal Proceedings (Costs) Act it is not necessary for me to first find that in accordance with s 117 of the Family Law Act each party to the appeal should bear his or her own costs, it was not controversial that both parties are in modest financial circumstances. As I have already observed, the Husband has been declared bankrupt. I therefore infer that the Wife and the Husband accepted that, in the circumstances of this case, s 117(1) would still apply, namely that each party bear his or her own costs.
I propose to grant the Wife a certificate pursuant to s 6 of the Federal Proceedings (Costs) Act. However, I am not prepared to grant a certificate pursuant to s 8 of the said Act in respect of the rehearing. I understand that the proceedings were resolved by consent and there was no “new trial”.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 28 February 2011.
Associate:
Date: 28 February 2011
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