Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Gambetto & Farrelli (No 3) [2022] FedCFamC1A 224
Appeal from: Gambetto & Farrelli (No 4) [2022] FedCFamC2F 942 Appeal number: NAA 168 of 2022 File number: SYC 4559 of 2021 Judgment of: AUSTIN J Date of judgment: 23 December 2022 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of Decision – Costs – Where the appeal and the appellant’s application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) were dismissed – Where the appellant attempted to file an Application in an Appeal seeking an order for costs against the first respondent, her lawyers, and the former Independent Children’s Lawyer, notwithstanding that his application for a costs certificate entailed his acceptance that each party should bear their own costs – Where the appeal registrar rejected the application for filing – Where the appellant cannot re-visit the issue with an application for costs – Where to do so would be an abuse of process – Where the proposed costs application is not competent – Where the application should not be accepted for filing – Application for Review dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Number of paragraphs: 13 Date of hearing: Determined on the papers Place: In Chambers The Appellant: Litigant in person The First Respondent: Filed Submitting Notice on 15 September 2022 The Second Respondent: Filed Submitting Notice on 15 September 2022 The Independent Children's Lawyer: Filed Submitting Notice on 16 September 2022 ORDERS
NAA 168 of 2022
SYC 4559 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GAMBETTO
Appellant
AND: MS FARRELLI
First Respondent
MR L
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
23 December 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 19 December 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gambetto & Farrelli (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
On 24 November 2022, the appeal brought by the appellant from orders made on 7 July 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2) was dismissed.
The appellant’s application for a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs…
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- Case
- [2022] FedCFamC1A 224
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the appellant could re-litigate the issue of costs after his application for a costs certificate was dismissed, and whether the proposed costs application was competent and not an abuse of process. The court had to determine whether the appellant could bring a fresh application for costs against the respondents and their legal representatives, given that the primary judge had already ruled that each party should bear their own costs and the respondents did not contest the appeal.
In its judgment, the court held that the appellant could not re-litigate the issue of costs with a fresh application against the respondents. This was because the appellant’s former application for a costs certificate entailed his acceptance that each party should bear their own costs. The proposed costs application was deemed not competent and an abuse of process, amounting to a frivolous or vexatious attempt to re-litigate the costs issue. The court found that the appellant's attempt to hold the respondents' legal representatives liable for his costs was baseless, as the first respondent was not legally represented in the appeal and there was no basis for liability. Therefore, the Application in an Appeal filed on 19 December 2022 was dismissed.
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