Fennessy and Sanchez

[2007] FamCA 826

FAMILY COURT OF AUSTRALIA

FENNESSY & SANCHEZ [2007] FamCA 826

FAMILY LAW - APPEAL – COSTS

Federal Proceedings (Costs) Act 1981

APPELLANT HUSBAND: FENNESSY

RESPONDENT WIFE: SANCHEZ

FILE NUMBER: BRF 5353 of 2003

APPEAL NUMBER: NA 47 L of 2004

DATE DELIVERED: 29 June 2007

PLACE DELIVERED: Parramatta

PLACE HEARD: Brisbane

JUDGMENT OF: BRYANT CJ, KAY & COLEMAN JJ

HEARING DATE: By way of written submissions

WRITTEN SUBMISSIONS RECEIVED:

3 February 2005

16 March 2005

REPRESENTATION

THE APPELLANT APPEARING IN PERSON

SOLICITOR FOR THE RESPONDENT: Anderson Solicitors

Orders

1. That, provided, within 14 days of the posting to him of these orders, the husband confirms in writing to the Appeals Registrar that he seeks a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981, the Court grants to the appellant husband 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal.

2. That the Court grants to the respondent wife 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Fennessy & Sanchez.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: NA 47 L of 2004
File Number: BRF 5353  of 2003

FENNESSY

Appellant

And

SANCHEZ

Respondent

REASONS FOR JUDGMENT

1. Consequent upon the delivery of judgment allowing his appeal on 21 January 2005, [Mr] Fennessy (“the husband”), by letter dated 3 February 2005, submitted a “claim of $2,000 in relation to costs incurred” by him.  Such amount was stated to include “the costs of preparing, copying, typing, binding and serving all documents necessary and associated with the appeal exceeding but say $2,000”.  The husband did not indicate against whom such claim was made or upon what basis it was made, other than that his appeal had been successful. 

2. By written submission received by the Court on 16 March 2005, [Ms] Sanchez (“the wife”) contended that the husband’s success on appeal was “on a point related to judicial error”. The wife accordingly sought a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981. The wife was “legally aided” in the proceedings in the Full Court and at first instance.

3. The husband having not sought a costs certificate, we proceed on the basis that his claim for costs is against the wife.  The Court would not be inclined to make an order for costs against the wife.  The reasons for so concluding relate to the nature of the appeal, and the stance taken during the appeal by learned Senior Counsel for the wife.  Nothing done by the wife caused or contributed to the appeal being instituted.  In our view nothing in the proceedings in this Court could reasonably constitute circumstances justifying an order for costs against the wife.  Accordingly, no order for costs against the wife will be made

4. So far as the wife’s application for a costs certificate is concerned, the appeal in fact succeeded on “a question of law”.   Notwithstanding that the wife was on legal aid, in our view the wife is entitled to a costs certificate and we will so order.

5. Had he sought a costs certificate, the Court would, for substantially the same reasons as a certificate will be granted to the wife, have granted the husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981. The husband, who is unrepresented, has failed to seek a certificate. We see no reason why he ought not have that opportunity. Provided that, within 14 days of the publishing of these reasons, the husband confirms to the Court that he in fact seeks a costs certificate, the husband should have such certificate.

6. The Orders of the Court will accordingly be:

1. That, provided, within 14 days of the posting to him of these orders, the husband confirms in writing to the Appeals Registrar that he seeks a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981, the Court grants to the appellant husband 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 husband in respect of the costs incurred by the appellant husband in relation to the appeal.

2. That the Court grants to the respondent wife 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 wife in respect of the costs incurred by the respondent wife in relation to the appeal.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court  

Associate: 

Date:  29 June 2007