Gantos and Lasky (Costs Certificates)
[2013] FamCAFC 85
FAMILY COURT OF AUSTRALIA
| GANTOS & LASKY (COSTS CERTIFICATES) | [2013] FamCAFC 85 |
FAMILY LAW – APPEAL – COSTS CERTIFICATES – Where the parties agreed that the appeal should be allowed, the orders set aside and the matter remitted for rehearing – Where both parties sought costs certificates in the appeal and the rehearing on the basis that the appeal is to be allowed because of an error of law on the part of the trial judge – Where the parties agreed the trial judge had erred in failing to afford either party procedural fairness having proceeded to consider matters which were not argued before him, or an opportunity to ventilate such matters on reasonable notice – Where having regard to the orders and supporting reasons for judgment in light of the parties’ written material the Court is satisfied the appeal is to be allowed on the basis of an error of law – Where the preconditions to the granting of a costs certificate as set out in Cramer v Davies (1997) 72 ALJR 146 and summarised in B & B (Costs Certificates) (2007) FLC 930-39 are satisfied – Application allowed.
| Child Support (Assessment) Act 1989 (Cth) s 102A Family Law Act 1975 (Cth) s 94AAA(3) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| B & B (Costs Certificates) (2007) FLC 93-339 Cramer v Davies (1997) 72 ALJR 146 |
| APPELLANT: | Mr Gantos |
| RESPONDENT: | Ms Lasky |
| FILE NUMBER: | BRC 9586 of 2008 |
| APPEAL NUMBER: | NA 52 of 2012 |
| DATE DELIVERED: | 29 May 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 29 May 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 May 2012 (orders) 2 September 2011 (reasons for judgment) |
| LOWER COURT MNC: | [2011] FMCAfam 867 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Evans & Company Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Jones Mitchell Lawyers |
Orders
It is ordered by consent:
Leave to appeal against the orders in relation to the Child Support Assessment Act 1989 (Cth) made on 16 May 2012 by Judge Burnett be granted.
The appeal against orders 1 – 7 be allowed and the orders be set aside.
The matter be remitted to the Federal Circuit Court of Australia for rehearing before a Judge other than Judge Burnett.
There be no order as to costs.
It is further ordered:
The appellant be granted 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 appellant in respect of the costs incurred by him in relation to the appeal.
The respondent be granted 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 respondent in respect of the costs incurred by her in relation to the appeal.
Each party be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the re-hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gantos & Lasky (Costs Certificates) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 52 of 2012
File Number: BRC 9586 of 2008
| Mr Gantos |
Appellant
And
| Ms Lasky |
Respondent
REASONS FOR JUDGMENT
On 12 June 2012 the appellant father filed a notice of appeal against orders made by Federal Magistrate Burnett (as his Honour then was) on 16 May 2012. Those orders provided:
1.Refuse to extend time for the respondent to review of the Registrar’s decision and prosecute a de novo application to do so under r.18 of the Family Law Rules.
2.That the respondent’s application for orders or directions for the conduct of s.79A proceedings be dismissed.
3.Declare that Order 21 of the Orders made by the Court on 19 June 2000 is enforceable.
4.The respondent’s application for leave to make a child support departure application to the Court pursuant to s.116(1)(b) of the Child Support (Assessment) Act 1989 is refused.
5.That pursuant to Reg 25B.07 of the Federal Magistrates Court Rules, by way of enforcement of Order 21 of the Order made 19 June 2000, within 21 days, the respondent pay to the applicant the sum of $268,764.15, comprising:
a. Arrears of weekly payments of $206,135.12;
b.Arrears of superannuation contributions of $18,346.03 to her appointed superannuation fund;
c.Interest calculated in accordance with the Family Law Rules of $44,283.00.
6.That the respondent recommence payment of the periodic payments payable to the applicant pursuant to Order 21 of the Orders made
19 June 2000 from 25 May 2012.
7.That the respondent have 28 days from today’s date to make payment in respect of arrears.
Both parties have complied with all procedural requirements in the appeal proceedings. The appellant has filed appeal books and a summary of argument. After the appellant’s summary of argument was filed, the parties advised the Court that the respondent consented to the appeal being allowed and the matter remitted for rehearing. On 3 May 2013 the parties provided the Court with a draft minute of consent order in such terms, and additionally an order that each party shall bear their own costs of an incidental to the appeal, including reserved costs. Both parties seek costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).
The respondent mother filed a formal application seeking costs certificates on
21 May 2013. In the affidavit in support, sworn by the mother, reference is made to costs incurred at trial. This Court cannot make orders in relation to trial costs, other than on appeal from existing orders.
The substantive appeal was listed to be heard by the Full Court. In light of the consent to allow the appeal and remit the matter, the only issue which must be determined by the Court is the application for costs certificates. I now hear that application as a single judge of the appeal division pursuant to a s 94AAA(3) single judge direction issued by the Chief Justice.
An additional matter is the requirement of leave to appeal from the orders which concern child support matters, pursuant to s 102A of the Child Support (Assessment) Act 1989 (Cth). Leave was not opposed by the respondent and as the appeal is to be allowed by consent, it is appropriate to grant leave in this case.
In accordance with the principles set out in Cramer v Davies (1997) 72 ALJR 146 and summarised by the Full Court in B & B (Costs Certificates) (2007) FLC 930-39, in order to determine an application for costs certificates under the Costs Act where an appeal is to be allowed by consent and without hearing any argument, I must be satisfied of the following preconditions:
· the existence of a “federal appeal”;
· the necessity to establish that the appeal has succeeded on a question of law; and
· the requirement that the Court concerned should have heard the appeal.
It is unnecessary to discuss at length the first and third preconditions. It is well settled that an appeal such as this is a federal appeal. The requirement to hear the appeal is satisfied by “having the matter listed before the court so that it may dispose of the appeal in a public and formal way” (the Full Court in B & B at 35, citing Kirby J in Cramer v Davies), as has occurred today.
As to the second precondition, the parties agree that the appeal is to be allowed on the basis of an error of law. The matter before his Honour involved the question of the correct characterisation of orders previously made either as property or maintenance.
The notice of appeal contains 18 grounds. The primary complaints raise issues of procedural unfairness, and error by the Federal Magistrate in the application of law and in the exercise of his discretion. Specifically it is argued that the Federal Magistrate erred by determining an application pursuant to s 79A, which was not the application before his Honour, without giving the parties an opportunity to make submissions. It is further said his Honour erred by failing to take into account relevant and material considerations, including changes in circumstances since the original orders.
It is submitted that the Federal Magistrate’s functions and discretion also must have miscarried, having regard to the delay between the date of hearing and delivery of reasons, and by reference to the content of the reasons. The trial was heard over four days between December 2009 and February 2010. The reasons for judgment were not delivered until 2 September 2011. Orders were subsequently made on 16 May 2012.
In paragraph 17 of the submissions seeking costs certificates, the solicitor for the appellant submitted:
The parties to this appeal consent to the appeal being allowed on the basis of questions of law, which have their genesis in steeped principles of natural justice and the right to be properly informed if the Court intended determining a matter on bases other than as argued or having issues curtailed without proper hearing on merits. Likewise, cases where inordinate delay has infected Judgments have been accepted as grounding and evidencing errors of law.
By a joint letter signed by the parties’ solicitors dated 20 May 2013, the respondent concedes that the Federal Magistrate failed to afford either party procedural fairness having proceeded to consider matters which were not argued before him, or an opportunity to ventilate such matters on reasonable notice.
Having regard to the orders and the supporting reasons for judgment in light of the parties’ written material before me, I am satisfied that the appeal is to be allowed on the basis of an error of law.
It is clear that it was reasonable for there to be an appeal. In light of this and as the parties have complied with all procedural requirements, in my opinion it is appropriate that there be no order as to costs between the parties and costs certificates should be granted to each party for the appeal and the rehearing.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 29 May 2013.
Associate:
Date: 29 May 2013
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