Hakim and Salim (No 2)

[2022] FedCFamC1A 56

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Hakim & Salim (No 2) [2022] FedCFamC1A 56

Appeal from:

Salim & Hakim (No 2) [2021] FamCA 495

Appeal number(s):

EAA 77 of 2021

File number(s):

PAC 5392 of 2020

Judgment of:

ALDRIDGE, HOGAN & HANNAM JJ

Date of judgment:

11 May 2022

Catchwords:

FAMILY LAW – APPEAL – COSTS – Where the appeal was partially successful – Where the appellant and the first respondent sought that they each be granted costs certificates – Where, given the appeal was substantially unsuccessful, it is inappropriate for the appellant to be granted a costs certificate – Where the first respondent is granted a costs certificate.

Legislation:

Family Law Act 1975 (Cth)

Federal Proceedings (Costs) Act1981 (Cth)

Cases cited:

B and B (Cost Certificates) (2007) FLC 93-339; [2007] FamCA 1177

Cramer v Davies (1997) 72 ALJR 146

Hakim & Salim [2022] FedCFamC1A 21

Number of paragraphs:

9

Date of last submissions:

28 March 2022

Date of hearing:

Heard by way of written submissions

Place:

In Chambers, delivered in Sydney

Counsel for the Appellant:

Mr Batey with Ms Carter

Solicitor for the Appellant:

York Family Law Specialists

Counsel for the First Respondent:

Mr Givney

Solicitor for the First Respondent:

Maclarens

The Second Respondent:

Did not participate

ORDERS

EAA 77 of 2021
PAC 5392 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HAKIM

Appellant

AND:

MS SALIM

First Respondent

MS NOOR

Second Respondent

ORDER MADE BY:	ALDRIDGE, HOGAN & HANNAM JJ
DATE OF ORDER:	11 MAY 2022

THE COURT ORDERS THAT:

1.The appellant’s application for a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.

2.The Court grants to the first respondent 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 first respondent in respect of the costs incurred by her in relation to the appeal.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hakim & Salim (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, HOGAN & HANNAM JJ:

1. On 28 February 2022 we granted the appellant leave to appeal Orders 2 and 8 of orders made by the primary judge on 9 July 2021 and allowed the appeal in respect of the same by:

   (a)amending Order 2 – by striking out the words “with the categorisation of such sum reserved to agreement between the parties or final hearing”; and

   (b)setting Order 8 aside.

2. Order 8 was set aside on the basis that the appellant was denied procedural fairness in respect of it.[1] Order 2 was amended on the basis that, having accepted that the primary judge had exercised the power to make an interim property order by way of partial property settlement, we concluded that error occurred when the characterisation of the $100,000 ordered to be paid to the first respondent was reserved to the agreement of the parties or the final hearing.

   [1]           Hakim & Salim [2022] FedCFamC1A 21 at [12]–[13].

3. We otherwise dismissed the appeal and directed that the issue as to the costs of the appeal be determined by way of written submissions. Submissions from the appellant and the first respondent have now been received.[2] The second respondent has not filed any submissions.

   [2]Appellant’s submissions filed 14 March 2022; first respondent’s submissions filed 28 March 2022.

4. The appellant submitted that:

   (a)having regard to the orders made on 28 February 2022, an order for costs was justified in the circumstances of the case; and

   (b)no order for costs should be made against the first respondent; and

   (c)given the findings made, the Court would be persuaded to exercise the discretion in favour of granting him a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) (“the Costs Act”).

5. The first respondent submitted that, given that the appellant:

   (a)had been unsuccessful in his attempt to have this Court set aside Orders 3, 4 and 7 of the 9 July 2021 order; and

   (b)had failed in his attempt to set aside the obligation to make the payment ordered by Order 2 of the 9 July 2021 order; and

   (c)had only been partially successful on the appeal and had succeeded, in part, on the basis of an issue of procedural fairness,

   the Court would be persuaded that the proper course would be to exercise the discretion in favour of granting costs certificates to both her and the appellant.

   Discussion and conclusions

6. It is well-established that there are three preconditions for the grant of a costs certificate under the applicable sections of the Costs Act.[3] We accept that these preconditions – namely, that there is a “federal appeal”, that the appeal succeeded on a question of law and that the relevant Court should have heard the appeal – are satisfied in this case.

   [3]           See: Cramer v Davies (1997) 72 ALJR 146 per Kirby J; B and B (Cost Certificates) (2007) FLC 93-339.

7. However, neither the satisfaction of the preconditions nor general agreement between parties that each should be granted a costs certificate under the Costs Act fetters this Court’s discretion to determine whether it is of the opinion, in the circumstances of this case, that it would be appropriate for the Attorney-General to authorise a payment under the Costs Act to each of the parties in respect of the costs each have incurred in relation to the appeal.

8. Given that the appellant was substantially unsuccessful in the appeal and, in particular, failed in his attempt to set aside that aspect of Order 2 of the 9 July 2021 order that required him to pay $100,000 to the first respondent, we consider it inappropriate to expect the public purse to meet any of his costs associated with the appeal. Consequently, we decline to grant a costs certificate for the appellant and his application for the same will be dismissed.

9. However, having regard to the submissions made on behalf of the first respondent – which we accept insofar as they relate to the first respondent – we consider it appropriate that the first respondent be granted a costs certificate pursuant to s 6 of the Costs Act.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Hogan & Hannam.

Associate: 

Dated:       11 May 2022