GRIFFIN & NOVELLO

[2019] FCCA 1662

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRIFFIN & NOVELLO [2019] FCCA 1662

Catchwords:
FAMILY LAW – Costs – applications for costs certificates under s.10 of the Federal Proceedings (Costs) Act 1981 – hearing marked not reached – applications dismissed.

Legislation:

Federal Proceedings (Costs) Act 1981 (Cth), s.10

Cases cited:

Herford & Berke [2019] FamCAFC 99
Marsh & Marsh [2009] FMCAfam 1160
Re Official Trustee in Bankruptcy; Forrest v Forrest [2000] FCA 907

Applicant: MS GRIFFIN

Respondent: MR NOVELLO

File Number: PAC 5054 of 2018

Judgment of: Judge Newbrun

Hearing date: 13 June 2019

Date of Last Submission: 13 June 2019

Delivered at: Parramatta

Delivered on: 17 June 2019

REPRESENTATION

Solicitors for the Applicant: Mr Mishra of Redline Legal

Counsel for the Respondent: Mr Coleman (SC)

Solicitors for the Respondent: Marsdens Law Group

ORDERS

1. The parties’ applications for costs certificates, under section 10 of the Federal Proceedings (Costs) Act1981 (Cth), are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5054 of 2018

MS GRIFFIN

Applicant

And

MR NOVELLO

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are brief reasons in respect to the Court’s determination of each party’s separate application for a costs certificate pursuant to section 10 of the Federal Proceedings (Costs) Act 1981, Cth. Such applications were made by each party on 13 June 2019, following their hearing being marked not reached on 13 June 2019.

The proceedings

1. The background to the parties making the above applications was that on 20 December 2018 the Court appointed a one-day hearing on 13 June 2019 in respect to the determination by the Court of a threshold issue as to whether or not the parties were previously in a de facto relationship.  The applicant had commenced proceedings in October 2018 seeking property adjustment orders relating to an asserted previous de facto relationship of the parties.  The respondent disputes that there was ever such a relationship in existence.

2. Again, the hearing appointed for 13 June 2019 was marked not reached at about midday on 13 June 2019, because, as the Court informed the parties, the Court was in the midst of hearing a previously expedited three day parenting case, (on 13 June 2019 it was day 3 of that case), which had commenced on 11 June 2019 and had not yet concluded.  The Court did not commence to hear the parties’ case.  The Court, having informed the parties that their case was not reached, proceeded to make the following order:

   “3. The court will shortly advise the parties of a two-day hearing fixture hearing of the preliminary issue of whether or not a de facto relationship existed between the parties, noting that today’s fixture was not reached.”

Relevant legal principles

1. The Court has had regard to the decision of Marsh & Marsh [2009] FMCAfam 1160 (11 November 2009) in relation to the parties’ applications for cost certificates and the case-law discussion in that decision.

2. The Court refers in particular to the decision of  Kiefel J (as her Honour then was) in Re Official Trustee in Bankruptcy; Forrest v Forrest [2000] FCA 907 (‘Forrest’) which is referred to in paragraph 26 of the decision in Marsh. 

3. The Court is of the view that these proceedings were not “rendered abortive” by reason that it was not reached. By reference to Kiefel J’s reasoning in Forrest, this case, which was adjourned at the outset without the hearing commencing to be heard, was to be distinguished from cases:

   “which are substantially undertaken and then discontinued because of some problem which renders their continuance impossible or undesirable.”

4. Furthermore, the within case is to be distinguished from Herford & Berke [2019] FamCAFC 99 where Kent J, at the outset of an appeal listed before his Honour as a single appeal judge, decided that the appeal ought properly be heard by a bench of 3 appellate judges and thus could not proceed before his Honour at all. In the within case, this Court had no such issue; the case was simply not reached and would receive a further hearing fixture in due course before this Court.

5. The Court should state that in this Court from time to time certain cases have to be expedited resulting in cases that have already been listed becoming in effect reserve listings. It is inevitable that this Court, with its heavy workload, will have cases listed in reserve. As is well known, cases listed with priority often settle and the reserve case will assume priority. Occasionally, reserve cases will not be reached and then they will be given an adjourned date with priority. This Court’s view is that the phenomenon of such a reserved case simply being not reached does not fall within the purview of section 10, as discussed briefly previously in these Reasons.

Conclusion

1. The parties’ applications for costs certificates should be dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 17 June 2019