FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gambetto & Farrelli (No 5) [2023] FedCFamC1A 43
Appeal from: Gambetto & Farrelli (No 7) [2022] FedCFamC2F 1219 Appeal number(s): NAA 223 of 2022 File number(s): SYC 4559 of 2021 Judgment of: ALDRIDGE J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – APPEAL – Appeal from a costs order relating to many applications filed by the appellant and the respondent – Where in respect of one application the primary judge made an order purporting to dismiss the appellant’s Application in a Proceeding – Where the dismissal of that application was subject to an appeal – Where that appeal court found that the dismissal was an inadvertent error and accordingly the order dismissing it was set aside – Findings of abuse of process – Error established – Appeal allowed – Costs order set aside – Re-exercise of the discretion – Costs order made against the appellant in a reduced sum as it also related to applications that were not the subject of the appeal. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 1.33, 1.34 Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Gambetto & Farrelli [2022] FedCFamC1A 196
Gambetto & Farrelli (No 4) [2022] FedCFamC2F 942
Gambetto & Farrelli (No 5) [2022] FedCFamC2F 918
Number of paragraphs: 31 Date of hearing: 17 February 2023 Place: Sydney The Appellant: Litigant in person The Respondent: Filed Submitting Notice on 10 November 2022 The Independent Children’s Lawyer: Filed Submitting Notice on 28 October 2022 ORDERS
NAA 223 of 2022
SYC 4559 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GAMBETTO
Appellant
AND: MS FARRELLI
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
31 march 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 3 February 2023 is dismissed.
2.The appeal against Order 1 made on 13 September 2022 is allowed.
3.Order 1 made on 13 September 2022 is set aside.
4.Within 60 days of the date of these orders, the appellant is to pay the respondent’s costs of and incidental to the:
(a)Application for Review filed by the respondent on 9 May 2022;
(b)Application for Review filed by the appellant on 10 May 2022;
(c)Application in a Proceeding filed by the appellant on 12 May 2022 and the
(d)Application for Review filed by the appellant on 15 June 2022.
fixed in the sum of $2,749.
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…
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Details
- Case
- [2023] FedCFamC1A 43
- Decision Date
CaseChat Overview and Summary
In Gambetto & Farrelli (No 5), the appellant, Mr Gambetto, appealed a costs order made against him by a judge of the Federal Circuit and Family Court of Australia (Division 2). The primary judge had ordered Mr Gambetto to pay the respondent, Ms Farrelli, costs of several applications filed in the proceedings between the parties. Mr Gambetto argued that the primary judge had failed to exercise her jurisdiction and powers properly, had been biased, and had not invoked the law of equity. He also claimed that the primary judge had inadvertently authorised the parties to disregard their disclosure obligations.
The central issue before the court was whether the primary judge had erred in making the costs order. The court considered whether the findings of abuse of process, which underpinned the costs order, were erroneous. The court found no basis to believe that the findings were incorrect, as Mr Gambetto had not addressed the primary judge's findings in his submissions. The court concluded that no error had been established in the costs order, except in relation to the costs of one particular application. The court set aside the costs order in part and re-exercised its discretion to order that Mr Gambetto pay the respondent the costs of four applications, reduced by one fifth to exclude certain costs.
The court's reasoning hinged on the principle that the appellant bears the burden of demonstrating error in the primary judge's decision. The court found that the findings of abuse of process were well-founded and not challenged by Mr Gambetto. The court also noted that the events and applications relied upon by Mr Gambetto were unrelated to the current appeal and did not warrant a re-evaluation of the primary judge's findings. The court exercised its discretion to adjust the costs order based on the established findings of abuse of process, excluding certain costs from the order. The court declined to make any order for costs in the appeal, given the findings of abuse of process.
The central issue before the court was whether the primary judge had erred in making the costs order. The court considered whether the findings of abuse of process, which underpinned the costs order, were erroneous. The court found no basis to believe that the findings were incorrect, as Mr Gambetto had not addressed the primary judge's findings in his submissions. The court concluded that no error had been established in the costs order, except in relation to the costs of one particular application. The court set aside the costs order in part and re-exercised its discretion to order that Mr Gambetto pay the respondent the costs of four applications, reduced by one fifth to exclude certain costs.
The court's reasoning hinged on the principle that the appellant bears the burden of demonstrating error in the primary judge's decision. The court found that the findings of abuse of process were well-founded and not challenged by Mr Gambetto. The court also noted that the events and applications relied upon by Mr Gambetto were unrelated to the current appeal and did not warrant a re-evaluation of the primary judge's findings. The court exercised its discretion to adjust the costs order based on the established findings of abuse of process, excluding certain costs from the order. The court declined to make any order for costs in the appeal, given the findings of abuse of process.
Orders
Orders of the court
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Background
Background to the litigation
Mr Gambetto (“the appellant”) and Ms Farrelli (“the respondent”) have been engaged in various proceedings in the Federal Circuit and Family Court of Australia (Division 2) for some time. The proceedings are marked by the many Applications in a Proceeding which have been filed by both parties but by the appellant in particular. BACKGROUND On 13 September 2022, a judge of that Court made the following orders:1.By 4:00 pm on 9 November 2022 the [appellant] pay the [respondent’s] costs of and incidental to the: (a) Application for Review filed by the [respondent] on 9 May 2022; (b) Application for Review filed by the [appellant] on 10 May 2022; (c) Application in a Proceeding filed by the [appellant] on 12 May 2022; (d) Application in a Proceeding filed by the [appellant] on 23 May 2022; and the (e) Application for Review filed by the [appellant] on 15 June 2022. fixed in the sum of $4,320.00. 2. The application for costs arising from the Application for Review filed by the [appellant] on 23 May 2022 is dismissed.The appellant has appealed both orders. Both the respondent and the Independent Children’s Lawyer (who also appeared on the various applications before the primary judge) filed submitting appearances and did not appear at the hearing of the appeal. Nonetheless, it remains the appellant’s obligation to demonstrate error on the part of the primary judge. The appellant relied on the following grounds of appeal:1.Primary Judge failed to exercise implied jurisdiction of the court over its officers and allowed the court’s authority to be undermined.2.Primary Judge failed to exercise implied powers of the court over its officers and did not provide a deterrent for those officers from future abuse of the court processes.3.Primary Judge exercised actual bias against self-represented party by applying a higher standard of accountability and compliance with the Rules to the self-represented applicant than to the respondent represented by a solicitor and a counsel.4. Primary Judge failed to invoke the law of equity in her judgement.5.Primary Judge, by the implication of her orders and reasons, authorized the officers of the court and the respondent to not comply with the disclosure obligations bestowed on them by the Family Law in this matter.(As per the original) Leaving aside the material described as “background” by the appellant, his Summary of Argument dealt with the asserted errors of the primary judge principally in the following three paragraphs:The primary judge reduced the cost application of the respondent however failed to deliver a fair judgement, failed to exercise her jurisdiction over the officers of the court and failed to make orders serving as a deterrent from the conduct exhibited by the respondent and her legal representatives, i.e., perverting the course of justice.The primary judge also included costs of the hearing on 7 July 2022, clearly showing that she did not understand her initial error, that she still erroneously considered me to have abused the process, and that she was not notified of the error by the other side, who can be deemed to have wilfully concealed the error from the primary judge in their attempt to pervert the course of justice.While the primary judge erroneously was holding me accountable under Rule 2.24 (1)(e) the primary judge failed to hold the respondent and her legal team accountable under any of the rules including Rule 2.23 (4)(5).(Appellant’s Summary of Argument filed on 14 December 2022, p.3)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The primary judge found that the subpoenas sought to be issued by the appellant and the Application in a Proceeding he sought to be filed were abuse of process. The appellant has addressed no submissions to me as to why those findings were erroneous. There is no apparent basis for thinking that the finding is wrong. It is for the appellant to demonstrate error (see Bahonko v Sterjov (2008) 166 FCR 415 at [3]). CONCLUSION Apart from the issue of 7 July 2022, no error has been established. It follows however, that the orders must be set aside. In the event the appeal was successful, the appellant relied on his Application in an Appeal on 3 February 2023 to adduce further evidence, which was an affidavit sworn by him on the same day listing out court events that he sought the appeal court take into account. The appellant referred to the respondent being wholly unsuccessful in a Notice of Objection and at an interim hearing, as well as withdrawing a contravention application previously filed. He states that this shows that “the parties cause at least the same level of litigation in the overall matter” and therefore costs should be determined at the final hearing (Appellant’s affidavit filed on 3 February 2023, paragraph 9). However these events and applications are not in any way related to the current application before the Court and ignores the findings of the primary judge regarding abuse of process. On the re-exercise of the discretion, I would exclude the costs of 7 July 2022 from the costs order. Given the findings of abuse of process as to the other applications, which stand, it is just in all of the circumstances that the appellant pay the respondent the costs of the applications listed on 8 July 2022. Using the figures relied upon by the primary judge, I will reduce the amount in Item 3 by one fifth so as to exclude the Application in a Proceeding filed on 23 May 2022 and in Item 13, exclude the daily hearing fee for 7 July 2022. There will therefore be an order that the appellant pay the respondent’s costs of the four applications fixed in the sum of $2,749.COSTS In the event the appeal was allowed, the appellant sought costs to cover his application fee and any transcripts. There was no transcript obtained in this appeal and, as I have said above, given the findings of abuse of process, there will be no order as to costs.
Ratio Decidendi
Legal Principle Established
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