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:

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…

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 Hakim and Salim (No 2)

Details

AGLC: Hakim and Salim (No 2) [2022] FedCFamC1A 56
Case: [2022] FedCFamC1A 56
Decision Date: 11 May 2022

CaseChat Overview and Summary

This appeal arose from the appellant, Mr Hakim, seeking to overturn certain orders made in a family law matter, and the first respondent, Ms Salim, opposing the appeal. The central issue before the court was whether Mr Hakim should be granted a costs certificate for the appeal under the Federal Proceedings (Costs) Act 1981 (Cth). Both parties sought a costs certificate; however, the court had to determine whether such a certificate was appropriate given the outcome of the appeal.

The court recognised that the three preconditions for the grant of a costs certificate were satisfied: there was a federal appeal, the appeal succeeded on a question of law, and the relevant court should have heard the appeal. Despite these preconditions, the court had discretion to decide if it was appropriate for the Attorney-General to authorise a payment under the Costs Act to each party. Given that Mr Hakim was substantially unsuccessful in his appeal, particularly in his attempt to set aside the obligation to pay $100,000 to Ms Salim, the court found it inappropriate to grant him a costs certificate. Consequently, the court dismissed Mr Hakim's application for a costs certificate.

In contrast, the court considered it appropriate to grant Ms Salim a costs certificate. This decision was based on the submissions made on her behalf, which the court accepted. The court granted Ms Salim a costs certificate, finding that it would be appropriate for the Attorney-General to authorise a payment under the Costs Act to her in respect of the costs incurred in relation to the appeal.

The court's final orders were that Mr Hakim's application for a costs certificate was dismissed, and Ms Salim was granted a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 (Cth). These orders reflect the court's assessment of the parties' success in the appeal and the appropriateness of public funding for their respective legal costs.

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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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

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

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