Griffin & Croft
[2015] FCCA 2685
•25 September 2015
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 |
| 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 to provide a Family Report.
The original Family Report was released to the parties on 8 August 2011.
On 9 November 2011 Federal Magistrate Jarrett[1] ordered that an updated report was to be prepared prior to 2 February 2012.
[1] As His Honour then was
On 6 March 2012 the Application was set down for final hearing for two days in Brisbane commencing at 10:00 am on 23 April 2012.
The matter was ready to proceed on 23 April but the updated Report, dated that same day, was not released until the morning of the hearing. There were some amendments to the Report, including an additional four paragraphs, numbered 80 to 83. Those four additional paragraphs contained further recommendations, notably at paragraph 80:
It is recommended that both parents undertake a clinical psychological evaluation. It is recommended that both the mother and the father undertake a multiaxial psychological assessment of personality and psychopathology.
As Ms McKinnon deposed in her affidavit:
The final hearing could not proceed in view of the recommendation. As a result of the late release of the report the matter was adjourned for a further mention for Directions.[2]
[2] Affidavit of H.M. McKinnon 17.4.2015 at paragraph [12]
Ms McKinnon deposed that the adjournment of the final hearing necessitated by the late delivery of the Court Expert’s Report caused her client expense for counsel’s fees, professional fees and travel and accommodation costs for the instructing solicitor, calculated on a party and party basis at a total of $4,895.00.[3]
[3] Ibid at [13]
On 27 February 2013 Federal Magistrate Kemp[4] listed the matter for final hearing for two days with priority on 16 and 17 May 2013 at Coffs Harbour. An updated Family Report was requested from Dr S by 15 April 2013.
[4] As his Honour then was
Appointments were made for the parties and the children to be seen by Dr S on 27 March 2013.
The updated Report was not forthcoming by or on 15 April, despite telephone calls and emails to Dr S.
The updated Report was not made available until 16 May 2013, the first day of the hearing. Annexed to Ms McKinnon’s affidavit is a copy of an email from Judge Altobelli’s Associate dated 14 May, stating that the Report had not been received.
On 16 May Judge Altobelli adjourned the matter to 17 and 18 July 2013 for final hearing with priority. The Orders bear the notation:
The Final Hearing was listed with priority for today but could not be started due to the late arrival of the Family Report.
Ms McKinnon deposed that she estimated the costs thrown away by her client as a result of the adjournment necessitated by the late production of the Family Report at $3,520.00 on a party and party basis.
Ms McKinnon also estimates the costs of this Application on a party and party basis at $3,072.00.
The Law to be applied
The Federal Proceedings (Costs) Act 1981 makes provision for the limited reimbursement of costs incurred by a party in certain circumstances. The Court can, at its discretion, provide a certificate stating the Court’s opinion that it would be appropriate for the Attorney-General to bear some part of a party’s costs.
The grant of a costs certificate is entirely discretion. In the decision of In the Marriage of Tyson (No.2)[5] the Full Court of the Family Court of Australia held:
The grant or refusal of a costs certificate is purely discretionary, the Act itself lays down no guidelines for the exercise of that discretion. Without intending to be exhaustive, matters such as the overall reasonableness or otherwise of the attitude adopted throughout the proceedings by the party applying for the certificate to the relief sought by the other, the financial resources of the applicant, and the likely quantum of the party’s total costs…all appear relevant for consideration by the court in the exercise of that discretion, as too is the fact that the funds to honour such a certificate must come from the public purse.[6]
[5] (1993) 16 Fam LR 795: FLC 92-401
[6] (1993) 16 Fam LR 795 at 796; FLC 92-401 at 80,111 per Nygh, Lindenmayer and Barry JJ
Subsection 10(1) of the Act states that the section applies to the Federal Circuit Court.
Subsection 10(3) provides:
Subject to this Act, where:
(a) the hearing of any proceeding in a court to which this section applies is discontinued and a new hearing is ordered; and
(b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings,
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
Subsection 10(3) deals with proceedings that are “discontinued” through no neglect, default or improper act of any party to the proceedings in which a new hearing has been ordered. Whilst litigants spend money preparing for proceedings which are aborted for one reason or another, not due to the fault of the parties, the subsection refers specifically to proceedings which are “discontinued and a new hearing is ordered”.
Purdy J took a wide view in Lindner and Lindner[7], stating that two questions arose:
[7] (1985) FLC 91-638
1. Have the present proceedings been discontinued?
2. Has a new hearing been ordered?[8]
[8] (1985) FLC 91-638 at 80,154
A narrowed view was taken by Mullane J in Redshaw and Redshaw[9], where His Honour declined to grant a certificate in a case where a hearing could not proceed on 4 and 5 July 1989 because the Judge who was to hear the matter had become ill on 29th June. The hearing did not commence on either day because there was no judge available to hear it.
[9] (1989) 13 Fam LR 495 495; FLC 92-053
Mullane J declined to grant the application on the basis that the hearing had not commenced, noting that:
…there was no appearance on the day fixed for the hearing. There was no judge to appear before. There is nothing which might constitute a commencement of the hearing in terms of the dicta in Lindner…[10]
[10] (1989) 13 Fam LR 495 at 497; FLC 92-053 at 77,601
Halligan FM[11] specifically followed Redshaw in Lummis & Lummis.[12]
[11] As His Honour then was
[12] [2008] FMCAfam 1274
In W & S[13], Guest J followed the reasoning of Mullane J in Redshaw and declined to follow the reasoning of Purdy J in Lindner, saying at [31]:
The provision of a certificate pursuant to the Act is a benefit provided by the statute, but on conditions and in circumstances whereby a hearing has been ‘discontinued’, It is plain that, for such an event to occur, it must have been commenced, in my view, in a real and litigious sense, and not just by way of mention by reason of a prior supervening event or discussion arising from judicial availability. I agree with Kiefel J[14] that the word ‘discontinuance’ does indeed have a ‘well established meaning’, namely that it ‘conveys something having commenced and then ceasing prior to its conclusion’.[15]
[13] [2005] FamCA 568; (2005) 192 FLR 214; 33 Fam LR 546; FLC 93-229
[14] See Re Official Trustee in Bankruptcy; Forest v Forest [2000] FCA 907
[15] (2005) 33 Fam LR 546 at 554 [31]; FLC 93-229 at 79,776 [31]
Pascoe CFM[16] followed W & S in Marsh & Marsh[17].
[16] As His Honour then was
[17] [2009] FMCAfam 1160; (2009) 42 Fam LR 310
If the Court does exercise its discretion to grant a costs certificate to party, s.4 of the Act provides that costs are ascertained as if they were costs as between party and party.
An appeal does not lie from a refusal of a court to grant a costs certificate (s.13).
Consideration
The Applicant seeks costs certificates in respect of:
a)the hearing on 23 April 2012;
b)the hearing on 16 May 2013; and
c)the Application itself.
It is clear that on 23 April 2012 there was a hearing scheduled to commence before Jarrett FM. The Court record shows that the parties were represented by Mr Theobald and Mr Priestley of Counsel. The hearing did not proceed because the Family Report only became available on the day of the hearing and a decision was made that the hearing could not proceed because of the recommendations in the Family Report, which were unknown to the parties and their lawyers until the day of the hearing.
In my view, there was clearly a hearing that was ready to proceed but was discontinued and a new hearing was ordered. There is no suggestion that the discontinuance and new hearing were in any way attributable to the neglect, default or improper act of any party to the proceedings. The circumstances meet the requirements of s.10(3) and in my view a costs certificate should issue.
At the second hearing, on 16 May 2013, it was clear that Judge Altobelli was available to hear the case and the Court record shows that Mr Theobald and Mr Priestley of Counsel appeared for the parties and Ms Carty of Counsel appeared for the Independent Children’s Lawyer. His Honour specifically noted that the hearing could not be started due to the late arrival of the Family Report.
Again, there was clearly a hearing that was ready to proceed but was discontinued and a new hearing was ordered. Again, the discontinuance and new hearing were not attributable to the neglect, default or improper act of any party to the proceedings. Again, the circumstances meet the requirements of s.10(3) and a costs certificate should issue.
The Act does not appear to authorise the granting of a certificate in respect of the Application for a certificate itself and I am therefore unable to grant a certificate in that respect.
The costs in respect of the hearing in Brisbane on 23 April 2012 have been estimated on a party and party basis at $4,895.00 and I see no reason to doubt that figure.
The costs in respect of the hearing in Coffs Harbour on 16 May 2013 have been estimated on a party and party basis at $3,520.00 and, again, I see no reason to doubt that figure.
Costs certificates will issue accordingly.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 1 October 2015
Schedule
A.Costs Certificate in respect of discontinued hearing on 23 April 2012.
B.Costs Certificate in respect of discontinued hearing on 16 May 2013.
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT
AT COFFS HARBOUR
CRC 214 of 2007
BETWEEN:
MR GRIFFIN
AND:
MS CROFT
CERTIFICATE PURSUANT TO SECTION 10 OF THE
FEDERAL PROCEEDINGS (COSTS) ACT 1981
BEFORE: JUDGE SCARLETT
DATE ON WHICH CERTIFICATE WAS GRANTED: 25 SEPTEMBER 2015
IN THE OPINION OF THE COURT it would be appropriate for the Attorney-General to authorise a payment under the Act
Section 10
to the Applicant MR GRIFFIN in respect of such part as the Attorney-General considers appropriate of any costs incurred by him in relation to the proceedings before the Federal Magistrates Court on 23 April 2012.
BY THE COURT
JUDGE
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT
AT COFFS HARBOUR
CRC 214 of 2007
BETWEEN:
MR GRIFFIN
AND:
MS CROFT
CERTIFICATE PURSUANT TO SECTION 10 OF THE
FEDERAL PROCEEDINGS (COSTS) ACT 1981
BEFORE: JUDGE SCARLETT
DATE ON WHICH CERTIFICATE WAS GRANTED: 25 SEPTEMBER 2015
IN THE OPINION OF THE COURT it would be appropriate for the Attorney-General to authorise a payment under the Act
Section 10
to the Applicant MR GRIFFIN in respect of such part as the Attorney-General considers appropriate of any costs incurred by him in relation to the proceedings before the Federal Magistrates Court on 16 May 2013.
BY THE COURT
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