GABRIELS & GABRIELS
[2013] FamCAFC 174
•1 November 2013
FAMILY COURT OF AUSTRALIA
| GABRIELS & GABRIELS | [2013] FamCAFC 174 |
| FAMILY LAW – APPEAL – ORAL APPLICATIONS – COSTS CERTIFICATES – where the husband and the wife made oral applications for costs certificates to issue under the Federal Proceedings (Costs) Act 1981 (Cth) – where the pre-conditions to the issue of certificates pursuant to ss 9 and 6 of the Federal Proceedings (Costs) Act 1981 (Cth) are satisfied – orders made as sought. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9 |
| B & B (Costs Certificates) (2007) FLC 93-339 |
Cramer v Davies (1997) 72 ALJR 146
| APPELLANT: | Mr Gabriels |
| RESPONDENT: | Ms Gabriels |
| FILE NUMBER: | PTW | 63 | of | 2004 |
| APPEAL NUMBER: | WA | 11L | of | 2006 |
| DATE DELIVERED:: | 1 November 2013 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland, Ainslie-Wallace and Moncrieff JJ |
| HEARING DATE: | 30 October 2013 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 27 April 2006 |
| LOWER COURT MNC: | [2006] FCWA 44 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Gore |
| SOLICITORS FOR THE APPELLANT: | Jeffery Paul S Gore |
| FOR THE RESPONDENT: | Mr Carr |
| SOLICITORS FOR THE RESPONDENT: | Carr & Co |
IT IS ORDERED:
The Court grants to the husband a costs certificate pursuant to the provisions of s 9 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 husband in respect to the costs incurred by the husband in relation to the appeal.
The Court grants to the wife 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 to the costs incurred by the wife in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gabriels & Gabriels has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 11L of 2006
File Number: PTW 63 of 2004
| Mr Gabriels |
Appellant
And
| Ms Gabriels |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 12 September 2006 Mr Gabriels (“the husband”) appealed against some of the orders made by Tolcon J on 27 April 2006. Ms Gabriels (“the wife”) was the first respondent in that appeal. The second respondent in that appeal, the Deputy Commissioner of Taxation, has taken no part in the hearing of the applications now before the court.
In relation to the appeal directions hearings were subsequently held in 2007, and pursuant to orders made at those hearings appeal books were filed on
24 May 2007.
As we understand it, although the appeal then reached a stage where it could be listed for hearing, it was in fact adjourned to await the outcome of ongoing substantive proceedings in the same matter.
Those substantive proceedings were eventually finalised by judgment delivered by Crooks J on 9 August 2012.
Following this the husband sought that the appeal be listed for hearing. As a result, on 10 July 2013, Thackray J conducted a judicial conference and the appeal resolved. His Honour then made consent orders as follows:
1.The appeal in relation to paragraphs 18 and 22 of the orders of
27 April 2006 be allowed.2. Paragraphs 18 and 22 of the orders of 27 April 2006 be discharged.
3.The applications for the first and second respondents’ costs of the proceedings before Tolcon J be remitted to the Family Court of Western Australia for hearing.
4. The appeal otherwise be dismissed.
5. There be no order for costs of the appeal between the parties.
6.The appellant and the first respondent have leave to apply for a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
Pursuant to those consent orders both the husband and the wife sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), and those oral applications are now before us for determination.
Discussion
The relevant sections of the Costs Act are s 9 for an appellant, and s 6 for a respondent, and as was identified in B & B (Costs Certificates) (2007) FLC
93-339, there are three matters which by reference to those sections must be satisfied before a costs certificate can issue, namely:
a)the existence of a Federal appeal;
b)that the appeal has succeeded on a question of law; and
c)that the court concerned should have “heard” the appeal.
In addition, pursuant to s 9(1)(b) of the Costs Act, for a certificate to issue to an appellant, each party has to bear his or her own costs of the appeal. That requirement is satisfied here in that, as can be seen, one of the orders made by Thackray J on 10 July 2013 was an order that there be no order for the costs of the appeal.
At this point we also note that the question of whether the power to grant certificates under the Costs Act can be exercised by a differently constituted court than the court which allowed the appeal by consent has been conclusively determined by the Full Court in B & B, and the power can be so exercised. Thus, this is not an issue here.
Turning then to the three matters arising from ss 9 and 6 of the Costs Act, it is beyond doubt that the first of those matters is satisfied here. As to the third requirement, any question about that has also been authoritatively determined by the Full Court in B & B, relying in turn on the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146. Kirby J’s broad interpretation of whether a matter has been heard or not, was that to be “heard” the matter only need be listed before the court so that it may dispose of the appeal in a public and formal manner. That interpretation was adopted by the Full Court in
B & B.
The hearing before Thackray J clearly went far beyond the matter simply being listed for hearing, and thus this condition is satisfied here as well.
With the third matter, the appeal against orders 18 and 22 made by the trial judge has been allowed by consent. Order 18 provided that the husband pay the wife’s costs of and incidental to the proceedings, and order 22 provided that the husband pay the intervener’s costs of and incidental to the proceedings. The intervener was the second respondent in the appeal.
The complaint that the husband made about those orders in the appeal was that there was a denial of procedural fairness by the trial judge; the orders were made without the husband being given the opportunity to make submissions, and without any reasons being given by the trial judge. We understand that it was an acceptance of this by the wife that led to the appeal against those orders being allowed, and those orders being set aside.
Having considered the reasons for judgment of the trial judge, and reflected on the oral submissions made on behalf of the wife in particular, where we were taken to a portion of the transcript before the trial judge, we are persuaded that the appeal has been appropriately allowed, and more importantly, allowed on a question of law.
Conclusion
Given that the pre-conditions to the issue of certificates pursuant to ss 9 and 6 of the Costs Act are satisfied, we are content to make the orders sought.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Moncrieff JJ) delivered on 1 November 2013.
Associate:
Date: 1 November 2013
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