Gambetto & Farrelli (No 3)
[2022] FedCFamC1A 224
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 Act”) was also dismissed.
On 14 December 2022, the appellant attempted to file an Application in an Appeal in which he sought an order for costs primarily against the first respondent, assessed at $1,604, which sum was intended to reimburse the expense he incurred in filing the appeal and procuring transcript. Alternatively, he sought the costs order jointly against the first respondent’s lawyers and the former Independent Children’s Lawyer, who was the second respondent to the appeal.
The appeal registrar refused to accept and file the Application in an Appeal, which decision was explained to the appellant in an email dated 15 December 2022 in these terms:
It is my view that the question of costs has been determined by the Honourable Justice Austin and that the issue of costs as between the parties cannot be further litigated pursuant to the principle of “res judicata”.
…
•During the course of the hearing, his Honour indicated in effect that in his view, in the circumstances of the appeal, no issue of either respondent being liable for costs could arise. …
•At paragraph 20 of his Honour’s reasons for judgment the following finding was made – “The two respondents to the appeal filed Submitting Notices, so no question of costs against them arises”;
•You proceeded to make an application for a Costs Certificate. This application must have been made pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth). Before the Court can order a Costs Certificate under that section, the 2 preconditions set out in s9(1)(a) and (b) must apply. You will note that the second precondition is that each party to the appeal “bears his or her own costs”. Your application for a Costs Certificate could only have been made upon your contention that both preconditions applied in this appeal.
(Email from the appeal registrar to the appellant dated 15 December 2022)
The appellant was dissatisfied with that decision and so, on 19 December 2022, filed an Application in an Appeal seeking that the decision be reviewed. That is the application now under consideration.
The application was supported by an affidavit, filed simultaneously, in which the appellant deposed:
2.Appeal Judicial Registrar did not provide grounds for rejection under Rule 2.24.
(Affidavit of the appellant filed 19 December 2022)
Such evidence is incorrect. The appeal registrar explained the rejection of the application in the email sent to the appellant on 15 December 2022.
Nonetheless, the appellant enjoys an absolute right to review the registrar’s decision, which review entails the decision about either the acceptance or rejection of the appellant’s costs application being made afresh.
The appellant indicated in the Application in an Appeal (at Pt C) that he wants the review application determined on the papers in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The appeal brought by the appellant was dismissed because it was futile. Although the primary judge made an inadvertent error, the appealed order was overtaken and rendered redundant by another order made little more than a week later. The respondents to the appeal filed Submitting Notices and thereby abided the Court’s decision, neither resisting nor supporting the appeal. Nothing they did or omitted to do hindered the appellant’s prosecution of the appeal. Accordingly, there was no rational basis upon which either respondent could be fixed with liability to pay the appellant’s costs of and incidental to the appeal.
The appellant’s application for a costs certificate under the Costs Act was refused. The grant of a costs certificate is contingent upon each party to the proceedings having to bear his and her own costs of the appeal (s 9(1)(b)). Having found the parties should bear their own costs of the appeal, because the respondents did not resist the appeal, and then having dismissed the appellant’s application for a costs certificate, he cannot now re-visit the issue with a fresh application for costs against the respondents. To do so would be an abuse of process, if not an affront to principles of estoppel as the appeal registrar anticipated. As was correctly pointed out, the appellant’s former application for a costs certificate necessarily entailed his acceptance that each party to the appeal would bear his and her own costs. The fresh costs application now proposed against the respondents, either jointly or severally, is not competent.
The proposed alternate costs application against the first respondent’s lawyers is frivolous or vexatious and so, for that reason, should not be accepted for filing. The first respondent did not contest the appeal and was not legally represented in the appeal. There could be no conceivable basis upon which her lawyers, who represented her in only the original proceedings, could be fixed with liability for the appellant’s costs of an unsuccessful appeal.
The Application in an Appeal executed by the appellant on 14 December 2022 should not be accepted for filing. The review application fails. The Application in an Appeal filed on 19 December 2022 will be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 December 2022
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