Cochran and Lippman - [2010] FamCAFC 82

FAMILY COURT OF AUSTRALIA

COCHRAN & LIPPMAN

[2010] FamCAFC 82

FAMILY LAW – PARENTING PROCEEDINGS –APPEAL FROM A DECISION OF FEDERAL MAGISTRATE – COSTS – Not established that the late service of documents in the precincts of the Court denied the appellant father procedural fairness – Established that the Federal Magistrate was obliged, as a matter of procedural fairness, to apprise the father of the provisions of s 117 (2A) of the Family Law Act 1975 (Cth) in general terms – Court of the opinion that it is appropriate, in the circumstances, to re-exercise the discretion of Federal Magistrate – Costs order made with respect to proceedings in Court below in same terms as made by Federal Magistrate – Court grants the appellant father and the respondent mother a costs certificate pursuant to Federal Proceedings (Costs) Act 1981

Family Law Act 1975 (Cth) Section 117(2A) subsections (c), (f) & (g)
Federal Proceedings (Costs) Act 1981 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-5
Re F [2001] FLC 93-072
Rutherford and Rutherford (1991) FLC 92-255

APPELLANT:

Mr Cochran

RESPONDENT:

Ms Lippman

FILE NUMBER:

PAC

2290

2009

APPEAL NUMBER:

149

2009

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

9 April 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 November 2009

LOWER COURT MNC:

[2009] FMCAfam 1396

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self Represented

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Mr Antony Benetatos

SOLICITOR FOR THE RESPONDENT:

Benetatos White Solicitors

Orders

That the father’s appeal against the order for costs made in the Federal Magistrates Court on 18 November 2009 be allowed.
That within three months of this date the appellant father pay by way of contribution to the respondent mother’s costs of the proceedings before the Federal Magistrates Court the sum of one thousand dollars ($1000) plus GST (a total of one thousand one hundred dollars $1100).
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s.9 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 appellant father in respect of the costs incurred by the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s.6 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 respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Cochran &…

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 Cochran and Lippman

Details

AGLC: Cochran and Lippman [2010] FamCAFC 82
Case: [2010] FamCAFC 82
Decision Date: 23 April 2010

CaseChat Overview and Summary

The case of Cochran and Lippman involved a dispute over costs that arose in the Federal Magistrates Court. The father, represented by Mr Cochran, applied for costs that were deemed excessive by his Honour. The father argued that the costs were excessive for the preparation of documents and that there was correspondence where he had asked to include the State of New South Wales in express terms, which was disregarded by the opposing party. The father sought a judicial interpretation of the correspondence's significance, leading to a costs order. The father subsequently appealed the costs order, arguing that the Federal Magistrate should have provided a brief explanation of the possible significance of the correspondence attached to the mother’s solicitor’s affidavit.

The legal issue before the court was whether the Federal Magistrate should have provided a brief explanation of the possible significance of the correspondence attached to the mother’s solicitor’s affidavit, and whether the costs order was justified. The court considered the principle that while it is usually undesirable for a judicial officer to give legal advice to an unrepresented litigant, there may be circumstances where such assistance is necessary to conduct a fair trial. The court held that the Federal Magistrate should have provided some indication of the basis upon which a costs order could be made.

The court accepted that it was unnecessary for his Honour to provide the father with a detailed explanation of the possible significance of the correspondence. However, the court found that some indication of the basis upon which a costs order could be made was required. The court allowed the father’s appeal against the order for costs, but ordered that the father pay a contribution to the mother’s costs of the proceedings before the Federal Magistrates Court. The court also granted costs certificates to both parties in relation to the appeal.

In conclusion, the court allowed the father’s appeal against the order for costs, but ordered that the father pay a contribution to the mother’s costs of the proceedings before the Federal Magistrates Court. The court granted costs certificates to both parties in relation to the appeal. The court found that some indication of the basis upon which a costs order could be made was required, and that the Federal Magistrate should have provided such an indication.

Orders

Orders of the court

That the father’s appeal against the order for costs made in the Federal Magistrates Court on 18 November 2009 be allowed.

That within three months of this date the appellant father pay by way of contribution to the respondent mother’s costs of the proceedings before the Federal Magistrates Court the sum of one thousand dollars ($1000) plus GST (a total of one thousand one hundred dollars $1100).

That the Court grants to the appellant father a costs certificate pursuant to the provisions of s.9 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 appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s.6 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 respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In terms of costs, the discussion was brief and it is appropriate to record it in full:HIS HONOUR: Good. Thank you. He makes an application for costs. What’s the quantification?MR BENATAS [sic]: $1100, Your Honour. It involves an hour’s preparation for the affidavit in response.HIS HONOUR: What do you want to say about costs?MR [COCHRAN]: I think the costs are very excessive, your Honour, for preparation of documents, for starters.HIS HONOUR: Thank you. Anything else you want to put?MR [COCHRAN]: Yes, your Honour. There was correspondence that I also had that went backwards and forwards between Mr Benatas [sic] and myself, and on several – several of these correspondence letters indicated to him that I would like the State of New South Wales included in express terms.HIS HONOUR: Yes.MR [COCHRAN]: And on each occasion, he’s written back to me and disregarded it. And said, “No, no. We don’t want that.”HIS HONOUR: Thank you. Anything else?MR [COCHRAN]: No. That’s it for now, your Honour.HIS HONOUR: Thank you. I make orders in accordance with the document, which is entitled Terms of Settlement, which I marked as exhibit A, initial and date today. There is a couple of amendments, can you give me a typed script, Mr Benatas [sic]?MR BENATAS: Yes. I can, your Honour.HIS HONOUR: The mother’s solicitor is to provide a typed script within 14 days.Yes?MR [COCHRAN]: Your Honour, may I also add that I wasn’t quite clear on what Mr Benatas [sic] was saying in his correspondence and I did write back to indicate to him that – I said, “Look, I’m not sure what you’re asking me or what you’re trying to indicate here.”HIS HONOUR: Yes.MR [COCHRAN]: I did as for a clearer explanation. Therefore, that’s why I’m here before you today to seek judicial interpretation on the matter.HIS HONOUR: Thank you.JUDGMENT DELIVERED. It is clear that the judgment then delivered was the judgment for costs which gives rise to the application for leave to appeal. The transcript speaks for itself. The Court accepts that it was unnecessary for his Honour to have provided the father in this case with other than a brief explanation of the possible significance of the correspondence attached to the mother’s solicitor’s affidavit. Having read the transcript, the Court can readily appreciate how the matter progressed in the way it did. With all due respect to the learned Federal Magistrate, some indication of the possible basis upon which a costs order could be, and subsequently was, made was required, notwithstanding that, as his submissions clearly reveal, the father appreciated that the correspondence attached to the mother’s solicitor’s affidavit was relevant to the issue. Indeed, the only submissions made by the father with respect to his potential liability for costs related to the correspondence. In Re F [2001] FLC 93-072 the Full Court (Nicholson CJ, Coleman & O’Ryan JJ) said that whilst it was “usually undesirable” for the judicial officer to give legal advice to an unrepresented litigant, particularly when such advice was “of a strategic nature”, there could be circumstances where the requirement to conduct a fair trial required a judicial officer to give assistance of a legal nature to a litigant in person, even though such assistance may risk compromising the appearance of impartiality and neutrality from the perspective of the other side.

Ratio Decidendi

Legal Principle Established

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