Hao and Lan
[2016] FamCAFC 74
•27 April 2016
FAMILY COURT OF AUSTRALIA
| HAO & LAN | [2016] FamCAFC 74 |
| FAMILY LAW – COSTS – Costs Certificates – Where the appeal was finalised by consent – Where the Full Court satisfied itself, upon reading the appeal record, that an appealable error had been established – Whether the Full Court had “heard the appeal” for the purposes of granting each of the parties a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs certificates granted. |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| B & B (Costs Certificates) (2007) FLC 93-339 Ball & Ball (Cost Certificates) [2007] FamCA 1252 Cramer & Davies (1997) 72 ALJR 146 |
| APPELLANT: | Mr Hao |
| RESPONDENT: | Ms Lan |
| FILE NUMBER: | SYC | 4184 | of | 2013 |
| APPEAL NUMBER: | EA | 5 | of | 2016 |
| DATE DELIVERED: | 27 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Strickland & Kent JJ |
| HEARING DATE: | 27 April 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 December 2015 |
| LOWER COURT MNC: | [2015] FamCA 1149 |
REPRESENTATION
| FOR THE APPELLANT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Michael Conley Lawyers |
Orders
It is Ordered by Consent:
Leave be granted to the appellant to appeal against Order 2 of the orders made by Justice Stevenson on 18 December 2015.
Appeal EA5 of 2016 filed 24 December 2015 against Order 2 be allowed.
Order 2 made by Justice Stevenson on 18 December 2015 be discharged.
The respondent’s Application in a Case filed 23 December 2014 and the appellant’s Application filed 27 March 2015 be remitted to a single Judge of the Family Court of Australia other than Justice Stevenson.
It is Ordered:
There be no order as to the costs of the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court, would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect to the costs incurred by him in relation to the appeal.
The Court grants to the 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 would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect to the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hao & Lan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 5 of 2016
File Number: SYC 4184 of 2013
| Mr Hao |
Appellant
And
| Ms Lan |
Respondent
REASONS FOR JUDGMENT
May J
By way of Notice of Appeal filed 24 December 2015, Mr Hao (“the husband”) appeals interim orders made by Stevenson J on 18 December 2015 in property proceedings. The husband and Ms Lan (“the wife”) were involved in litigation in both Australia and China regarding the division of assets held in both countries. The wife filed an application in a case on 23 December 2014 seeking to restrain the husband from litigating in China. The husband filed an application in a case on 7 September 2015 seeking security for costs.
The orders made by the primary Judge, the subject of the appeal are as follows:
…
(2)That pending final determination of all proceedings […] in the Family Court of Australia at Sydney, including any appeal, the husband […] is restrained from taking any further step in proceedings […], [in] China, other than to discontinue those proceedings.
The reasons of Stevenson J dealt with the husband’s application for security for costs in comprehensive detail, but do not, it seems, deal with the wife’s application to restrain the husband from litigating in China. Despite the lack of reasons, Order 2 of the Orders restrains the husband from taking any further steps in proceedings in China.
The following grounds of appeal were contained in the notice of appeal:
1.That her Honour erred in failing to afford the Husband natural justice in making submissions or providing him with an opportunity to be heard on the application in a case filed 23 December 2014.
2.That her Honour erred in determining the anti suit application filed by the Wife on 23 December 2014 in circumstances where the application was not listed or agitated for hearing by the parties on 16 November 2015.
On 16 March 2016, the solicitors for the husband caused a letter to be sent to the appeals registry where it was explained as follows:
The notice of appeal was filed as a consequence of Order 2 of the orders made by Justice Stevenson on 18 December 2015. Order 2 is an Order made by her Honour in relation to an application in a case filed 23 December 2014. It is a consent position that her Honour erred in determining the anti-suit application filed by the wife on 23 December 2014 in circumstances where the said application was not listed or agitated for hearing by the parties on 16 November 2015. Neither party made submissions to her Honour in relation to the application, nor did her Honour provide either party an opportunity to be heard in relation to the said application.
Accordingly, on the basis of her Honour’s error, the [husband] seeks a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act (Cth) (“Act”). The [wife] seeks a costs certificate pursuant to Section 6 of the Act.
To date, our client’s costs of the appeal are $7,208.99.
There being no issue that her Honour apparently proceeded to hear and determine an application not listed, there being no issue or contention that the husband was denied procedural fairness, we are satisfied that the appeal should be allowed by reason of an error of law.
Enclosed with the letter was a copy of the proposed consent orders. Before we make those consent orders, it is necessary to refer to the application also being the granting of costs certificates. It should be noted that on 21 April 2016, after the signing of the consent orders, the solicitors for the husband filed a notice ceasing to act, and they do not appear before the Full Court today; however, the solicitors for the wife do appear.
Costs Certificates
In relation to costs certificates, the husband filed his Notice of Appeal on 24 December 2015, well within the time after the orders were made on 18 December 2015. The draft appeal index was filed by the husband on 21 January 2016 pursuant to rule 22.13(2) of the Family Law Rules 2004 (Cth). The parties then advised the Appeals Registry that the matter had settled, and a procedural hearing was conducted on 4 February 2016. No orders were made in the procedural hearing as the parties advised that draft consent orders would be filed. As noted above, the consent orders were sent to the appeal registry on 14 March and the matter was then listed for hearing today.
The draft orders ask that each of the husband and wife receive costs certificates in respect of the appeal pursuant to ss 9 and 6, respectively, of the Federal Proceedings (Costs) Act1981 (Cth). As is now well known, in order to grant a costs certificate, it is necessary for the Full Court to hear the appeal, even when consent orders are obtained.
The Full Court decision in B & B (Costs Certificates) (2007) FLC 93-339 and Ball & Ball (Costs Certificates) (2007) affirmed the decision of Kirby J in Cramer & Davies (1997) 72 ALJR 146, finding that “a ‘hearing’ means no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way.”
The appeal had not yet progressed to a final stage, and no material had been filed other than the draft appeal index.
In view of the nature of the error of the primary judge, there should be no order as to costs as between the parties. As there is no order as to costs, and in view of the circumstances in this case, they should each be granted a costs certificate.
Strickland J
I agree with the reasons of the presiding Judge and have nothing to add.
Kent J
I too agree with the reasons of the presiding Judge and have nothing to add.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 April 2016.
Associate:
Date: 27 April 2016
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