Griffin & Croft - [2015] FCCA 2685

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRIFFIN & CROFT

[2015] FCCA 2685

Catchwords:
FAMILY LAW – Costs – costs certificate – application for costs certificate – two discontinued hearings – where hearings could not proceed because of the late delivery of a Family Report – costs certificate to issue.

Legislation:

Family Law Act 1975 (Cth), s.62G
Federal Proceedings (Costs) Act 1981 (Cth), ss.4, 10, 13
Federal Circuit Court Rules 2001, r.15.09

Cases cited:
Lindner and Lindner (1985) FLC 91-638
Lummis & Lummis [2008] FMCAfam 1274
Marsh & Marsh [2009] FMCAfam 1160; (2009) 42 Fam LR 310
Re Official Trustee in Bankruptcy; Forest v Forest [2000] FCA 907
Redshaw and Redshaw (1989) 13 Fam LR 795;FLC 92-401
In the Marriage of Tyson (No.2) (1993) 16 Fam LR 795; FLC 92-401
W & S [2005] FamCA 568; (2005) 192 FLR 214; 33 Fam LR 546; FLC 93-229

Applicant:

MR GRIFFIN

Respondent:

MS CROFT

File Number:

CRC 214 of 2007

Judgment of:

Judge Scarlett

Hearing date:

21 September 2015

Date of Last Submission:

21 September 2015

Delivered at:

Coffs Harbour

Delivered on:

25 September 2015

REPRESENTATION

Solicitor for the Applicant:

Ms McKinnon

Solicitors for the Applicant:

Slater & Gordon

Respondent:

No appearance

ORDERS

The Applicant is granted a costs certificate under the provisions of subsection 10(3) of the Federal Proceedings (Costs) Act 1981 in respect of the discontinued hearing on 23 April 2012 in the sum of $4,895.00.
The Applicant is granted a costs certificate under the provisions of subsection 10(3) of the Federal Proceedings (Costs) Act 1981 in respect of the discontinued hearing on 16 May 2013 in the sum of $3,520.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 214 of 2007

MR GRIFFIN

Applicant

And

MS CROFT

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for a costs certificate under the provisions of subsection 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of costs thrown away in relation to two discontinued hearings in family law proceedings between the Applicant and the Respondent on 23 April 2012 and 16 May 2013.
The Applicant also seeks a certificate in respect of the costs of this Application.
It is not the case that the Applicant claims that either hearing was discontinued due to any fault of the Respondent, but rather through matters connected with the Family Report that had been ordered by the Court.

Background

The Application arises from parenting proceedings between the parties under the Family Law Act 1975 (Cth). The circumstances are set out in some detail in an affidavit of the Applicant’s solicitor, Heather Margaret McKinnon, made on 17 April 2015.
In her affidavit Ms McKinnon deposed that on 17 May 2011 an order had been made under the provisions of Rule 15.09 that a Clinical Psychologist, Dr S, should be appointed as a Court Expert…

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.

Continue reading Griffin & Croft

Details

AGLC: Griffin and Croft [2015] FCCA 2685
Case: [2015] FCCA 2685
Decision Date: 25 September 2015

CaseChat Overview and Summary

In *Griffin & Croft*, the applicant sought costs certificates from the Federal Court of Australia following the discontinuance of hearings scheduled for 23 April 2012 and 16 May 2013.

The central legal issue before the Court was whether the applicant was entitled to a costs certificate under subsection 10(3) of the *Federal Proceedings (Costs) Act 1981* for the discontinued hearings.

Judge Scarlett found that the applicant had met the criteria for the grant of costs certificates. The Court ordered that the applicant be granted a costs certificate for the hearing on 23 April 2012 in the sum of $4,895.00, and a further costs certificate for the hearing on 16 May 2013 in the sum of $3,520.00, both pursuant to subsection 10(3) of the *Federal Proceedings (Costs) Act 1981*.

Orders

Orders of the court

The Applicant is granted a costs certificate under the provisions of subsection 10(3) of the Federal Proceedings (Costs) Act 1981 in respect of the discontinued hearing on 23 April 2012 in the sum of $4,895.00.

The Applicant is granted a costs certificate under the provisions of subsection 10(3) of the Federal Proceedings (Costs) Act 1981 in respect of the discontinued hearing on 16 May 2013 in the sum of $3,520.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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