Gaspaldi and Gaspaldi (Extension of Time)

[2009] FamCAFC 237

FAMILY COURT OF AUSTRALIA

GASPALDI & GASPALDI (EXTENSION OF TIME) [2009] FamCAFC 237

FAMILY LAW - APPLICATION IN AN APPEAL – Extension of time – Costs Certificate

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT: Mr Gaspaldi

RESPONDENT: Mrs Gaspaldi

FILE NUMBER: CAF 80 of 2004

APPEAL NUMBER: EA 134 of 2006

DATE DELIVERED: 22 December 2009

PLACE DELIVERED: Perth

JUDGMENT OF: Bryant CJ, Thackray and Le Poer Trench JJ

HEARING DATE: Written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 29 November 2006

LOWER COURT MNC: [2006] FamCA 1274

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Self Represented Litigant

SOLICITOR FOR THE RESPONDENT: Consensus Family Lawyers

Orders

1. That the time within which the respondent wife had to seek a costs certificate pursuant to the orders made on 19 August 2009 be extended to the date upon which the Court received her request for such a certificate.    

2. That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 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 the respondent in respect of the costs incurred by her in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Gaspaldi & Gaspaldi (Extension of Time) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 134  of 2006
File Number: CAF 80  of 2004

Mr Gaspaldi

Appellant

And

Mrs Gaspaldi

Respondent

REASONS FOR JUDGMENT

1. On 19 August 2009 we delivered reasons in relation to the costs of an appeal by Mr Gaspaldi (“the husband”). The appeal had succeeded on a question of law and the husband was granted a costs certificate.

2. Mrs Gaspaldi (“the wife”) had not formally applied for a costs certificate. Given that costs certificates can only be granted on request, we made an order in the following terms:

   That the respondent wife have 21 days from today’s date within which to make an application for the grant of a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981.

3. On 4 September 2009 the wife’s solicitor informed the Court by letter that she had been instructed by the wife not to seek a costs certificate.  However, by letter to the Court, dated 20 October 2009, the wife’s solicitor sought to resile from that position.

4. The letter of 20 October 2009 advised as follows:

   We were instructed to take the unusual step to not apply for a Costs Certificate in this matter, as an agreement was reached with the husband about costs issues arising from the trial at first instance and subsequent costs orders on 5 March 2009. One condition of that was that the wife would not pursue any further costs (from the husband), that might arise from the husband’s Appeal.

   In those circumstances, we considered it inappropriate to pursue a Costs Certificate after the Full Court handed down judgment on the costs Applications.

   However, the wife’s agreement to the above was contingent upon the husband paying an agreed sum for the wife’s costs. That has not eventuated. In fact, the husband has now made application to set aside the Consent Orders that we understood had settled all outstanding costs issues.

5. In these circumstances we propose to grant the wife an extension of time in which to seek the costs certificate.  We propose also to grant her a certificate on the same basis as a certificate was granted to the husband.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate:   

Date:              22 December 2009