Chimin and Fiato (No. 2)
[2019] FamCA 183
•29 March 2019
FAMILY COURT OF AUSTRALIA
| CHIMIN & FIATO (NO. 2) | [2019] FamCA 183 |
| FAMILY LAW – COSTS – Application for costs certificate pursuant to s 10(3) Federal Proceedings Costs Act 1981 (Cth) – Certificate granted. |
| Federal Proceedings (Costs) Act 1981 (Cth) |
| Coulson v Gosford Meats Pty Ltd (1985) 7 FCR 106 In the Marriage of Tyson (No. 2) (1993) FLC 92-401 Minchin v McDonald [2012] FMCAfam 1328 Official Trustee in Bankruptcy, in the matter of Forrest (Bankrupt) v Forrest [2000] FCA 907 Perpetual Trustee Company (Canberra) Limited and Ors v Robert Lewis as Delegate for the Commissioner for the Australian Capital Territory Revenue [1996] ACTSC 19 Re Morris; Morris v Maroudas (1986) 66 ALR 699 Re Palmdale Insurance Ltd (1994) 122 ACTR 33 |
| APPLICANT: | Mr Chimin |
| RESPONDENT: | Ms Fiato |
| INDEPENDENT CHILDREN’S LAWYER: | Faraday Law |
| FILE NUMBER: | BRC | 10018 | of | 2015 |
| DATE DELIVERED: | 29 March 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 27 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bertone |
| SOLICITOR FOR THE APPLICANT: | Indigo Law |
| COUNSEL FOR THE RESPONDENT: | Ms Martinovic |
| SOLICITOR FOR THE RESPONDENT: | Keyworth Harris & Lowe Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Faraday Law |
Orders
IT IS ORDERED THAT
The Applicant is granted a costs certificate pursuant to s 10(3) 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 this Act to the Applicant in respect of such part as the Attorney-General considers appropriate of any costs incurred by the Applicant in relation to the hearing of the matter on 19 February 2019 and 20 February 2019.
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 Chimin & Fiato 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).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10018 of 2015
| Mr Chimin |
Applicant
And
| Ms Fiato |
Respondent
And
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 27 February 2019, Counsel for the Applicant made an oral application seeking that the Applicant be granted a costs certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth)(“the Act”) in respect of the hearing on 19 and 20 February 2019.
The circumstances relevant to the consideration of this application may be briefly stated thus:
a)the substantive proceedings are for parenting orders in relation to the only child of the Applicant and the Respondent; and
b)these parenting proceedings were listed for three days, commencing on 18 February 2019; and
c)the proceedings commenced on 18 February 2019: evidence was taken, including the cross-examination of the Applicant by Counsel who then appeared for the Respondent and Counsel who appeared for the Independent Children’s Lawyer; the matter was adjourned at the end of that day to 19 February 2019; and
d)on 19 February 2019, the Court was asked to stand the matter over until 20 February 2019 because information had only that morning been received about the death of a practitioner with whom then Counsel for the Respondent had a long professional relationship and Counsel considered that she was unable to discharge her duties to the Court and her client as a result of the impact of the receipt of such knowledge – the matter was stood over to 20 February 2019; and
e)on 20 February 2019, then Counsel for the Respondent appeared by Queen’s Counsel, who sought on her behalf that the matter be adjourned because she considered that she was unable properly to discharge her duty to the Court and to her client by virtue of the impact on her of the knowledge referred to above: over the objection of Counsel for the Applicant (who advanced, amongst other things, that the matter could proceed on 20 and 21 February 2019 following the engagement of replacement Counsel), and for Reasons expressed ex tempore, I adjourned the matter to 27 February 2019; and
f)the orders made on 20 February 2019 included that a Transcript of the proceedings on 18 February 2019 be obtained, marked as an Exhibit in the proceedings and then be provided to the parties to facilitate the ability of replacement Counsel – whom it had been foreshadowed would be engaged to appear on behalf of the Respondent on 27 February 2019 – properly to assume the responsibility of representing the Respondent on 27 February 2019; and
g)on 27 February 2019, when the proceedings were called, replacement Counsel announced her appearance for the Respondent and Counsel for the Applicant made the application the subject of consideration.
It is also relevant to note that Counsel who appeared for the Respondent on 27 February 2019 was afforded the opportunity to undertake any further cross-examination of the Applicant she considered necessary to discharge her professional obligations to the Respondent.
The Applicant is meeting the costs of the proceedings. Consequently, he has incurred legal fees in relation to the attendance of his solicitor and the appearance of Counsel instructed to appear on his behalf on 19 and 20 February 2019. The Respondent and the Independent Children’s Lawyer are each funded by Legal Aid Queensland.
Applicable legislation
Section 10 of the Federal Proceedings (Costs) Act 1981 (Cth) applies to the Family Court.[1] Section 10(3) of the Act is in the following terms:
Subject to this Act, where:
(a)the hearing of any proceeding in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings,
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
[1]Federal Proceedings (Costs) Act 1981 (Cth), s 10(1).
Applicable authority and consideration
In Furnari v Furnari,[2] the Full Court of this Court[3] said (albeit in the context of considering an application for a certificate in relation to the discontinuance of an appeal by a party because events overtook things) that:
“…Section 10(3) certificates are available in cases where a matter begins but the hearing is aborted due to matters beyond a party’s control resulting in a rehearing being required…”[4]
[2] [1998] FamCA 171.
[3] Finn, Kay and May JJ.
[4] At [12].
The circumstances outlined in paragraph 2, which resulted in the proceedings being dealt with as outlined above, were clearly matters beyond the Applicant’s control; such matters also required the hearing of the proceeding to be managed in the manner outlined above – a manner which I consider to be akin to the “rehearing’ of the proceedings.
In Ward v Schembri,[5] Guest J undertook a helpful review of decisions which predated his June 2005 Judgment.
[5] (2005) FLC 93-229.
Unlike the circumstances in Coulson v Gosford Meats Pty Ltd,[6] In the Marriage of Lindner,[7] Re Morris; Morris v Maroudas,[8] In the marriage of Redshaw,[9] Re Palmdale Insurance Ltd,[10] Perpetual Trustee Company (Canberra) Limited and Ors v Robert Lewis as Delegate for the Commissioner for the Australian Capital Territory Revenue[11] and Official Trustee in Bankruptcy, in the matter of Forrest (Bankrupt) v Forrest,[12] the hearing of this matter, listed for three days, actually commenced on the morning of 18 February 2019; on 20 February 2019, the matter ceased prior to its conclusion as a consequence of an adventitious cause, whereby the hearing had to be terminated due to matters beyond any party’s control; at the time that occurred, the proceedings were incomplete.
[6] (1985) 7 FCR 106.
[7] (1985) FLC 91-638.
[8] (1986) 66 ALR 699.
[9] (1989) FLC 92-053.
[10] (1994) 122 ACTR 33.
[11] [1996] ACTSC 19.
[12] [2000] FCA 907.
In Re Morris; Morris v Maroudas[13], Muirhead J said, at p. 701:
In my opinion, sub-s (3) as is the case with sub-s (2), seeks to grant relief to litigants whose liability for costs is increased by reason of the fact that a hearing on foot is aborted by circumstances not contributed to by fault or neglect of any party to the proceedings. It is in my view an extension to the relief granted under sub-s (2) which is more specific in setting out the circumstances. It may for instance be referable to cases where the sickness or death of counsel intervenes under circumstances which require a discontinuance of the hearing which is under way at the time – probably a rare event – but one which as a matter of justice may persuade a court in the interests of justice to recommence the hearing de novo. It may also apply to disruption of a hearing or interference with the court’s capacity to continue the hearing by external causes.
[13] (1986) 66 ALR 699.
Whilst Counsel who appeared for the Respondent on 27 February 2019 advised that she did not seek to have the Applicant recalled for further cross-examination, the existence of such opportunity (or right) persuades me that this matter is in a category more akin to that where a proceeding has been “aborted” (or discontinued) and subsequently recommenced, than in the category of a matter simply being the subject of an adjournment order simpliciter.
I consider that what actually happened in this case was analogous to the hearing commencing de novo on 27 February 2019 – albeit it with the uncontested receipt of the evidence which had been taken in the hearing on 18 February 2019: that is, I consider that, in practical terms, the manner in which the proceeding continued on 27 February 2019 was more akin to a new hearing of it (albeit one facilitated by the provision of the transcript of evidence given earlier and the continued receipt of documents tendered on 18 February 2019) than simply a recommencement of it following an adjournment.
Whilst the proceedings continued in one sense on 27 February 2019, they only did so as a consequence of the co-operation of the parties and their willingness to “resume” the hearing with the benefit of the newly engaged Counsel having the benefit of the transcript of the father’s evidence given on 18 February 2019 and the opportunity to engage in any further cross-examination thought necessary.
For all intents and purposes, what actually happened was the same as what would have happened if I had made orders on 20 February 2019 that the trial cease; that a new trial commence on 27 February 2019 on the basis that the evidence in it would include the transcript of the proceedings on 18 February 2019 (which included the Applicant’s cross-examination); that the Respondent’s new Counsel be afforded the opportunity to conduct any further cross-examination of the Applicant that he or she determined necessary and that the exhibits include those which had been received into evidence on 18 February 2019.
I also note that, in Minchin v McDonald,[14] Scarlett FM granted a certificate for the day on which a party’s Counsel successfully sought leave to withdraw because the night before she had been offered and accepted a judicial appointment; the proceedings – which had commenced the day before – were adjourned to a new hearing later in the year to accommodate the proper withdrawal of Counsel.
[14] [2012] FMCAfam 1328.
Do the events enliven the operation of s 10(3) of the Act?
It is clear that the events recounted in paragraphs 2(d) and (e) were not the fault of any party to the proceedings, nor were they the result of any neglect or improper act by any party to these proceedings.
Consequently, given my conclusions that the hearing commenced on 18 February 2019 was “discontinued” and that the order which resulted in the proceedings resuming on 27 February 2019 amounted to a “new hearing” having been ordered, I am easily satisfied that “the discontinuance and the new hearing” are not attributable to the neglect, default or improper act of any party to the proceedings.
That I have concluded that s 10(3) of the Act applies in the present circumstances does not, of course, compel the granting of a costs certificate.
Should the discretion be exercised in favour of making the order sought?
The Act itself provides no guidelines for the exercise of the discretion to make the order sought by the Applicant.
I accept the force of the comments made by the Full Court of this Court in In the Marriage of Tyson (No. 2)[15] – albeit made in the context of considering an application for a certificate pursuant to s 6 of the Act following a successful appeal to that Court – that the grant or refusal of a costs certificate under the Act is purely discretionary. I also note the statement by Guest J in Ward v Schembri[16] that “(t)he provision of a certificate pursuant to the Act is a benefit provided by the statute, but on conditions and in circumstances whereby a hearing has been “discontinued”...”.[17]
[15] (1993) FLC 92-401.
[16] (2005) FLC 93-229.
[17] At [31].
Given the circumstances summarised in paragraph 2, the Applicant’s modest financial position and noting that the funds to “honour” a certificate if granted come from “the public purse”, I am persuaded that it is just that I exercise the discretion afforded by s 10(3) of the Act in favour of granting to the Applicant a costs certificate.
For the reasons outlined above, I make an order in the terms set out at the commencement of these Reasons.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 March 2019.
Associate:
Date: 29 March 2019
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