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 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

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.

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Details

Case: [2022] FedCFamC1A 224
Decision Date

CaseChat Overview and Summary

The case of Gambetto & Farrelli (No 3) involved an appeal by the appellant, Mr Gambetto, against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 7 July 2022. The appeal was dismissed on 24 November 2022, and the appellant’s application for a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) was also dismissed. Dissatisfied with the outcome, the appellant attempted to file an Application in an Appeal seeking an order for costs against the first respondent, Ms Farrelli, and others, which the appeal registrar rejected. The appellant then filed an Application in an Appeal seeking a review of the registrar’s decision.

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.

Orders