Jacob and Lawrence (No 2)

[2013] FamCA 544

FAMILY COURT OF AUSTRALIA

JACOB & LAWRENCE (NO 2) [2013] FamCA 544

FAMILY LAW – COSTS – application for costs by the respondent to the substantive proceedings – whether the circumstances justify the making of a costs order – consideration of s 117(2A) factors – orders that the applicant pay the respondent’s costs of and incidental to the proceedings before Justice Macmillan from the date the proceedings were initiated to the date of delivery of judgment.

FAMILY LAW – COSTS – where each party sought a costs certificate with respect to the hearing before another judicial officer that was aborted due to that judicial officer’s disqualification from further determination of the proceedings – where the Court was satisfied that it was appropriate to grant costs certificates to each party – each party granted costs certificates pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) for the costs of the aborted hearing date.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Calderbank v Calderbank (1975) 3 All ER 33
Penfold v Penfold [1980] FLC 90-800
Brown v Brown [1998] FLC 92-822
Pollo & Pollo (No. 2) [2007] FamCA 385 (23 April 2007)
Honan & Nouse (No. 2) [2007] FamCA 1691 (29 September 2007)
Salah & Aharat [2008] FamCA 19 (16 January 2008)
Reisner & Reisner(Costs) [2010] FamCA 588 (15 July 2010)

APPLICANT: Ms Jacob

RESPONDENT: Mr Lawrence

FILE NUMBER: MLC 2295 of 2012

DATE DELIVERED: 23 July 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 18 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tynan

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Ms Swart

SOLICITOR FOR THE RESPONDENT: Rudstein Kron Lawyers

Orders

1. That on or before six calendar months from the date on which the parties agree the quantum of the costs, or, in the absence of agreement, upon a taxation of costs, the applicant is to pay the entirety of the respondent’s costs of and incidental to the proceedings before Justice Macmillan from the date the proceedings were initiated to the date of delivery of judgment.

2. That the quantum of costs be agreed or taxed on a party-party basis.

3. The Court grants to the applicant a costs certificate pursuant to the provisions of Section 10(3) 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 applicant in respect of the costs incurred by her in relation to the hearing before Justice Macmillan on 12 July 2013.

4. The Court grants to the respondent a Costs Certificate pursuant to the provisions of Section 10(3) 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 respondent in respect of the costs incurred by him in relation the hearing before Justice Macmillan on 12 July 2013..

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacob & Lawrence has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 2295 of 2012

Ms Jacob

Applicant

And

Mr Lawrence

Respondent

REASONS FOR JUDGMENT

introduction

1.By way of initiating application filed on 16 March 2012, Ms Jacob[1] sought orders to Part VIIAB of the Family Law Act 1975 (Cth) concerning property and spousal maintenance arising out of the dissolution of her relationship with Mr Lawrence [2].

[1] Whom I will refer to as “the applicant”, though she is the respondent to this application in a case.

[2] Hereafter referred to as “the respondent.”

2.The substantive orders sought by the applicant were in the following terms:-

(1)That the respondent authorise the sum of $65,000 currently held in the J Partners Trust Account to be paid to the applicant.

(2)That the respondent pay periodic maintenance to the applicant in the sum of $1,000 per week commencing seven days after the date of this order and be payable for 5 years.

(3)That maintenance under this order shall be paid by deposited into the applicant’s Account Number … at the National Australia Bank.

(4)That within 30 days of the date of these orders (“the settlement date”) the applicant and the respondent do all acts and sign all documents as are necessary to transfer to the respondent at the expense of the respondent all of the applicant’s rights, title and interest in the property situate at K Street, C suburb in the State of Victoria.

(5)In consideration and exchange for the transfer referred to paragraph 6 hereof the applicant shall pay to the respondent on the settlement date a sum to be determined by this Honourable Court.

(6)…

(7)…”

3.The substantive orders sought by the respondent were in the following terms:-

(1)That the applicant’s initiating application filed 16 March 2012 be dismissed.

(2)A declaration pursuant to Section 90RD of the Family Law Act 1975 (FLA) that the applicant and the respondent lived together in a de facto relationship between the period 3 October 2010 and 14 October 2011.

(3)A Declaration that the application has made not any, or any substantial contributions of the kind referred to in Section 90SM (4) (a), (b) or (c) of the FLA that would entitle her to any entitlement of a Declaration of property rights in the assets of the parties pursuant to Section 90SL of the FLA or to any property adjustment pursuant to Section 90SM of the FLA or to any maintenance pursuant to Section 90SE of the FLA for Declarations pursuant to Section 90RD of the FLA that the respondent has made substantial contributions of the kind referred to in Section 90 SM (4) (a), (b) and (c) of the FLA and in particular:-

(4)…

(5)…

(6)…

(7)…

(8)…

(9)That the applicant pay the respondent’s costs.”

4.By amended initiating application filed 23 January 2013, the applicant sought the following further amended orders namely:-

(1)A declaration pursuant to Section 90RD of the Family Law Act 1975 that the applicant and the respondent live together in a de facto relationship for 2 years.

(2)In the alternative:-

(i)A declaration that the applicant has made substantial contributions of the kind referred to in Section 90SM (4) (a), (b) or (c) of the Family Law Act 1975; and

(ii)A declaration pursuant to Section 90SB of the Family Law Act 1975, that a failure to make the declaration sought by the applicant and the property orders sought by her would result in a serious injustice to the applicant.

5.By amended response filed 4 February 2013 the respondent discontinued reliance upon orders 1 – 8 and in lieu thereof sought the following order:-

(1)The applicant’s application for orders as sought in the amended initiating application filed on 23 January 2013 be dismissed for want of jurisdiction.

6.Whilst it is apparent that the amended response directly focused on the issue of jurisdiction, it could not be said that the initial response gave any comfort to the applicant that there was anything other than a challenge to the requirement needed to satisfy Section 90RD of the Act namely that the parties lived together in a de facto relationship for 2 years, or indeed any concession that the applicant had made “substantial contributions of the kind referred to in Section 90SM (4) (a) (b) or (c) of the Family Law Act”.

7.On 27 March 2013 Macmillan J dismissed the application of the applicant for want of jurisdiction (see the judgment generally at [2013] FamCA 188).

8.Consistent with order 9 as sought by the respondent in the amended response, the respondent filed an application in a case on 22 April 2013 (Document 32) seeking for the costs incurred by the respondent in the aforementioned proceedings to be paid by the applicant.

9.The quantum of costs incurred by the respondent is $68,857.32.  Counsel for the respondent properly conceded that the quantum as incurred was on a solicitor-client basis and it was conceded that a proper assessment of the respondent’s costs should he be successful in his application should be on the basis of party-party costs.  It was a conceded position that if costs were awarded there should be an opportunity for the costs to be agreed but in the absence of same then as may be taxed.

The Law

10.The general rule in proceedings under the Family Law Act 1975 is that each party should bear their own costs (Section 117 (1) of the Act.

11.Subsections 117(2)–(2A) of the Act provide an exception to that general rule. Those subsections read:

(2)    If, in proceedings under this Act, the court is of opinion that there    are circumstances that justify it in doing so, the court may,              subject to subsections (2A), (4), (4A) and (5) and the applicable      Rules of Court, make such order as to costs and security for                costs, whether by way of interlocutory order or otherwise, as the        court considers just.”

(2A) In considering what order (if any) should be made under                    subsection (2), the court shall have regard to:

(a)      the financial circumstances of each of the parties to the   proceedings;

(b)      whether any party to the proceedings is in receipt of   assistance by way of legal aid and, if so, the terms of the   grant of that assistance to that party;

(c)      the conduct of the parties to the proceedings in relation to   the proceedings including, without limiting the generality   of the foregoing, the conduct of the parties in relation to   pleadings, particulars, discovery, inspection, directions to   answer questions, admissions of facts, production of   documents and similar matters. 

(d)      whether the proceedings were necessitated by the failure   of a party to the proceedings to comply with previous   orders of the court;

(e)      whether any party to the proceedings has been wholly   unsuccessful in the proceedings;

(f)       whether either party to the proceedings has made an offer   in writing to the other party to the proceedings to settle   the proceedings and the terms of any such offer;

(g)      such other matters as the court considers relevant.”

12.In respect to the obligation created under s 117(2A), in Brown & Brown (1998) FLC 92-822 Kay J said at 85,346:

the obligation under Section 117 (2A) is that the court should have regard to the various matters set out thereunder.  This is in contrast to the previous provisions under which costs were made, namely under the Family Law Regulations and in particular Regulation 173 which required that the court may in making an order take into account various matters.  The movement from a discretionary consideration to a mandatory consideration is a matter in my view of some substance.

13.To further highlight the interplay between s 117(1) and s 117(2), but in particular as to the extent to which judicial discretion is to be exercised, the judgment of the High Court in Penfold v Penfold [1980] FLC 90-800 at 75,053-4 is informative:

It is an accurate description of Section 117 (1) to say that it expresses a general rule provided that it is firmly understood that the sub section is not paramount to Section 117 (2).  As sub section 1 is expressed to be subject to Section 2, the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order.  Beyond this there is nothing in the subject matter or in the inter-relationship of the two provisions which impose any additional or special onus on an applicant for an order for costs.

Consequently, with respect to Their Honour’s in the Family Court, we do not agree with the suggestion made in the judgment under appear that an order can only be made under Section 117 (2) in a “clear case”.

Subsection (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order….judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue.  The absence of reasons or findings does not, in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellant court in the position of examining the circumstances and of determining for itself whether the circumstances show the discretion was erroneously exercised.

Matter to be considered

14.The parties’ submissions focussed on the considerations in subsection 117 (2A) that are applicable to the determination of what, if any, order for costs should be made pursuant to Section 117 (2).

117(2A)(a) – Financial circumstances of the parties

15.The respondent admits that he is in a “stronger financial position” than the applicant.

16.The applicant, in her written submissions, claims to have substantial debts including credit card debts of $232,364. These debts, combined with her comparatively modest income of $892 per week provide the basis for the claim by the applicant that she has “no funds” to pay any costs order. In fact the applicant goes further and at paragraph 4 of her affidavit filed 11 July 2013 (Document 35) she says:

4. I have no funds to pay a costs order.  If costs are ordered against me I will be compelled to file for bankruptcy.  I am barely managing to avoid doing so at present.  The involvement of a trustee in bankruptcy in ongoing proceedings would in all likelihood incur further costs for both [Mr Lawrence] and me.

17.Ms Tynan for the applicant was challenged by me as to whether the matters raised in paragraph 4 of the said affidavit were without equivocation or condition.  The further submissions of Ms Tynan were to the effect that the extent to which the applicant would be compelled to file for bankruptcy would be dependent upon the extent of any costs order that I might make and the terms and conditions that might apply to such an order.

18.I am not convinced that there is the level of inevitability of bankruptcy as would appear to be the case as presented by reference to the affidavit filed on behalf of the applicant.

19.With respect to the applicant, the most recent financial statement as filed on 12 December 2012 (document 20) does not assist in providing clarity as to the applicant’s financial position.

20.The financial statement lists the “total value of property” owned by the applicant as $1,280,000 of which $1,250,000 is comprised of a 100 per cent share in the C suburb property in which the applicant is currently living.

21.The written submissions of the parties advise that proceedings are on foot in the Supreme Court of Victoria concerning the ownership of the C suburb property.  I am aware of the matters pleaded in the respondent’s statement of claim and in a general sense the he is seeking declaratory relief which would see the applicant transfer her legal interest in the C suburb property to him with the further consequence that she would vacate the said property and deliver the premises up to the respondent.

22.The proceedings are referred to in paragraph 18 of the affidavit of the applicant filed 11 July 2013 as follows:

I refer to paragraph 17.  I agree that I continue to live in the [C suburb] property.  I have nowhere else to live.  The property is registered in my name.  [Mr Lawrence] was issued a writ in the Supreme Court on 9 May 2013.  Annexed hereto and marked with the letter CKJ5 is a true copy of that writ.  I have no choice but to defend the legal action.  I am impecunious and nowhere else to live.  Unless the matter resolves by consent I will have to do whatever I can to defend the applicant’s writ.  I have therefore filed a defence and counter claim on 18 June 2013.

23.Whilst I have seen the statement of claim filed by the respondent (plaintiff) in those proceedings, I have not seen the defence and/or counter claim of the applicant.

24.In her submissions, Ms Tynan advised the court that the applicant was genuine in her intention to both defend the claim of the respondent in the Supreme Court of Victoria but also to pursue a counter claim.

25.I am not able to make any comment in respect of the likely outcome of those proceedings and indeed it would not be proper to do so.  I am entitled however to bring to account the existence of the proceedings and the clear and unequivocal intention of the applicant to both defend the proceedings and seek her own remedy whether that be a settlement sum or a confirmation of her current legal interest in the C suburb property.

26.The respondent has successfully lodged a caveat over the house that prevents the property from being sold. Clearly if the applicant is successful in her defence and counter-claim her financial circumstances could not be considered as “parlous” or “desperate”.  Following the submissions of Ms Tynan I have formed the view that the wife’s financial circumstances should be considered at worst as “uncertain”.

27.A consideration of the respondent’s most recent financial statement filed 24 September 2012 (Document 17), indicates that the disparity between the two parties’ financial circumstances would be relatively modest if the applicant is successful in her claim that she is her proper owner of the C suburb property.  The respondent’s financial statement lists his total property at $2,686,000 of which $1,250,000 is comprised by the value of the C suburb property which he brings to account as his property.

28.I accept that but for the claim made by the applicant in respect of the ownership of the C suburb property there would be a significant disparity in the financial circumstances of the parties.  Nonetheless, the wife continues to assert “as is her proper right” that she is the legal and equitable owner of the C suburb property.

29.Determination of the parties’ financial circumstances for the purposes of Section 117(2A)(a) of the Act does not require me to attempt to foretell the future as to how the proceedings currently joined in the Supreme Court of Victoria will be determined and resolved.  The applicant may well be successful in her claim.  Equally she may fail.  What I am able to determine is that as at the time of this hearing, and taking into account the continued assertion of the wife as to her interest in the C suburb property, it cannot be said that the applicant and the respondent are in a markedly different financial position to the point that it would in and of itself influence any decision that I would make as to costs.

30.The applicant further claims that the respondent has “obfuscated” his true financial position.  This hearing is not an appropriate forum to determine issues of contested fact.  Macmillan J made no findings as to the adequacy or otherwise of the respondent’s disclosure in her judgment.  If anything she took issue with the credibility of the applicant.

31.In respect of Her Honour’s findings on credibility I refer to paragraphs 24 and 25 of the judgment delivered on 27 March 2013:-

24. That being said I do, insofar as the parties’ version of the events differ, prefer the respondent’s evidence.  I found the applicant’s evidence and her demeanour in the witness box somewhat dramatic and she appeared to tailor her evidence not only to fit her perception of the relationship but also her sense of injustice about that relationship and what she perceived to be her entitlements subsequent to the breakdown of that relationship based upon what was said she was promised by the respondent.

25.  The respondent’s evidence on the other hand was more direct and measured and he readily made concessions about his hopes for and expectations of the applicant and the relationship, his conduct during the relationship, the expectations he may have given the applicant and how he felt about the applicant and their relationship.  In summary where there was a conflict on the evidence as presented to Her Honour, the evidence of the respondent was to be preferred.

32.In any event the issue due for determination by Macmillan J was set out by Her Honour in paragraph 7 of the said judgment, namely:-

7. The issues I must determine in this case re:-

(a)      Whether by 14 October 2009 the parties had having regard to all of the circumstances commenced a relationship “as a couple living together on a genuine domestic basis.”.

(b)     In the event that I find that they were not in a relationship “as a couple living together on a genuine domestic basis” by at least 14 October 2009 and am therefore not satisfied that the period of their relationship was at least 2 years then I must determine whether I am satisfied that the applicant made substantial contributions to the relationship and that the failure to make the orders sought by her would result in a serious injustice to the applicant.”

33.Put simply, the proceedings at first instance focussed on the question of jurisdiction not the extent of any claim for property settlement.

34.Other than the bald submission of Ms Tynan on the topic, there was no evidence before me as to the adequacy or otherwise of the respondent’s obligation to make full and frank disclosure.  I decline to bring to account the complaint of the applicant in that regard.

Section 117(2A)(b) – Whether any party is legally aided

35.No party is in receipt of any legal aid throughout the duration of the proceedings.

Section 117 (2A) (c) – Conduct of the parties

36.The respondent claims by reference to Section 117 (2A) (c) of the Act that the arguments put forward by the applicant concerning the invocation of jurisdiction were “clearly not supported by the evidence” and that the applicant’s case was weak.  This submission is said in order to support an order for costs against the applicant.

37.In response, the applicant claims that she was “advised by her lawyers and verily believed that the law in relation to jurisdiction in de facto cases is fluid and still evolving” and that she believes “that there was significant contribution (made by the applicant) in the context of (the parties’) relationship and in the context of (the applicants’).”  As such she contends that her case was “arguable”.

38.The submission on behalf of the applicant is that the respondent fundamentally changed his approach to the litigation by filing the amended response on 4 February 2013.  The suggestion was that the applicant was entitled to draw a conclusion from the orders sought by the respondent in his initial response filed 20 April 2012 that in some way the question of jurisdiction was either not an issue or it was then it was not the only issue but would be considered along with the general dispute between the parties as to property settlement.  The submissions of  Ms Tynan were to the effect that the applicant was taken by surprise in the filing of the amended response in that it appeared to crystallize the approach then taken by the respondent namely to focus entirely on the question of jurisdiction.

39.I do not accept that proposition and I find it difficult to accept that a reading of orders 1, 2, 3 and 4 of the final orders sought by the respondent in his initial response filed 20 April 2012 could be seen as anything other than a challenge to jurisdiction.

40.Nothing about the respondent’s initial response, in particular the orders as described above should or could have given the applicant any comfort that she was able to proceed unimpeded with her claim for spousal maintenance or property settlement.  The initial response clearly sets out that the respondent does not think that the applicant is entitled to anything.

41.In summary, I am uncertain as to how the amended response would have altered the applicant’s approach to the proceedings given the initial declaration sought by the respondent pursuant to Section 90RD of the Act namely that a de facto relationship existed between the periods 3 October 2010 and 14 October 2011 brought into sharp focus the fundamental issue pertaining to the period of cohabitation.

42.Similarly, the respondent’s position as and from the filing of his initial response is that the applicant has not made any substantial contribution pursuant to Section 90SM of the Act.

43.The applicant also claims that the respondents’ behaviour in the home “became increasingly aggressive and ultimately physically violent”.  Once again, this is not an appropriate application to determine contested issues of fact.  No such matters were raised in the judgment of Macmillan J.  To some extent it would be difficult to see how a claim such as that being suggested by the applicant in terms of the behaviour of the respondent towards her would or could impact upon a determination which focused on jurisdiction.  Even if these claims were substantiated, violence between the parties or more generally their conduct during the relationship and before the commencement of the proceedings is unlikely to be a relative factor pursuant to Section 117 (2A) (c) of the Act.  A cursory examination of the provision suggests Section 117 (2A) (c) requires consideration of the parties approach to the proceedings themselves.

Section 117 (2A) (d) – Whether the proceedings were necessitated by a parties’ non-compliance with orders of this court

44.I have received no written or oral submissions concerning any non compliance with any orders of this court.  As such, this consideration is not relevant to the determination of this application.

Section 117 (2A) (e) – Whether any party to the proceedings was wholly unsuccessful

45.Importantly the applicant admits in her written submissions that she was “wholly unsuccessful” in the proceedings in the meaning of Section 117 (2A) (e) of the Act.  In the circumstances of this case I consider this factor to be significant in terms of whether I should exercise my discretion towards costs and if so to what extent.

Section 117 (2A) (f) – Offers of settlement

46.The respondent sent four offers of settlement to the applicant, on 19 December 2011, 8 August 2012, 20 August 2012 and 25 September 2012 (see annexures ZR-1, ZR-2, ZR-3 and ZR-4 of document 33).  The letters dated 8 August 2012 and 20 August 2012 specifically refer to the principles relevant to offers of settlement and costs as outlined in the case of Calderbank v Calderbank (1975) 3 All ER 33.

47.I do not propose to repeat the terms of each of the offers of settlement but it is noteworthy that they were not ungenerous and if accepted by the applicant would have provided her with a significant financial advantage and the very real saving to each of the parties of the substantial legal fees incurred by them in the prosecution of these proceedings.

48.I accept that the applicant also made offers of settlement on 14 September 2012 and 26 September 2012 (see annexure CKJ-4 OF Document 35).  Those offers however whilst establishing that there were reasonable attempts by both parties to settle the matter the outcome of the proceedings was always going to result in absolute success for either the applicant or the respondent.  As such, I do not consider that the offers of settlement made by the applicant in any way diminish the significant weight that I give to the offers of settlement made by the respondent in circumstances where he was ultimately wholly successful.

Section 117 (2A) (g) – Other relevant matters

49.The respondent claims that it is a relevant matter for the purposes of Section 117 (2A) (g) that the applicant continues to live in the C suburb property which was wholly funded by the respondent which has required him to issue proceedings  in the Supreme Court of Victoria to have the property transferred to him.  The respondent brings to account that the applicant pays no rent but has paid “some rates and her own utility costs”.

50.In response to this submission, the applicant contents that she has “nowhere else to live” and that she has “no choice but to defend the legal action”.

51.The respondent’s submission with regards to this subsection appears to seek the have the applicant punished through a costs order as a result of her conduct following the conclusion of the substantive proceedings.  I do not consider that this is a finding that I can make.  Nor do I consider that it is necessarily relevant matter for the purposes of Section 117 (2A) (g) of the Act.  Whilst it is true that the parties are now put to the further expense of litigation in another place, it is not a matter for me to comment upon the merit of the claim by the respondent or the counter claim of the applicant.  It is however relevant that the said proceedings are on foot and that the applicant is genuine in her desire to defend the proceedings and to seek her own remedy and relief by way of counter claim.

Conclusion

52.For the reasons as set out herein I propose to make an order that the applicant is to pay the entirety of the respondent’s costs of the proceedings as and from the date the proceedings were initiated by the applicant, such costs to be assessed on a party-party basis in an amount to be agreed and failing agreement as taxed or assessed.

53.I am however minded to consider the financial circumstances of the parties in order to consider the time that should be allowed for the applicant to pay the respondent’s costs as ordered.

54.Until the proceedings in the Supreme Court of Victoria are resolved, and noting that the respondent has placed a caveat over the C suburb property to stop the applicant dealing with it in the interim, it is unlikely given the significant credit card and other liabilities that the applicant currently demonstrates that she would be able to meet a costs order in the short term.  Although there were no submissions made by either party as to time for payment I do consider that it would be reasonable in all the circumstances to give the applicant 6 months to pay the respondent’s costs, with time to run from either the date on which the parties agree the quantum of costs, or in the absence of agreement, from the date of the assessment or taxation of costs.

The issue of costs of the hearing before Macmillan J on 12 June 2013

55.When the application was called on Ms Tynan, made an oral application that I consider whether orders should be made pursuant to the Federal Proceedings (Costs) Act 1981 (“the Costs Act”) arising out of the hearing before Macmillan J on 12 July 2013 when Her Honour disqualified herself from further hearing the matter and it was then subsequently relisted before me.

56.Subsections 10(2) and 10(3) of the Costs Act allow me on application from a party or parties, to grant the requesting party a “costs certificate in respect of the proceedings”.

57.The costs certificate may be granted under Section 10 (2) and Section 10 (3) of the Costs Act, namely, “is a certificate stating that, in the opinion of the court it would be appropriate for the Attorney General to authorise a payment under that Act to a party in respect of such part as the Attorney General considers appropriate of any costs incurred by that party in relation to those proceedings” (Section 10 (4) of the Costs Act).

58.The power to grant a costs certificate is enlivened; “where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with or give judgment in, the proceedings.” The power to grant a costs certificate pursuant to Section 10 (3) of the Costs Act is enlivened where “the hearing of any proceeding in a court to which this section applies is discontinued and a new hearing is ordered” and “the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings.

59.Counsel for the respondent claims that by reason of her decision to disqualify herself from hearing the matter, Macmillan J became “unable to continue with, or give judgment in the proceedings”.

60.Judges of this court have historically been willing to grant costs certificates pursuant to Section 10 (3) of the Costs Act where a judicial officer has been rendered disqualified from hearing a matter through to completion with the said disqualification obviously not being “attributable to the neglect, default or improper act of any party to the proceedings”.[3]

[3] Pollo & Pollo (No. 2) [2007] FamCA 385 (23 April 2007) (Finn J); Honan & Nouse (No. 2) [2007] FamCA 1691 (29 September 2007) (Burr J); Salah & Aharat [2008] FamCA 19 (16 January 2008) (Stevenson J); and Reisner & Reisner(Costs) [2010] FamCA 588 (15 July 2010) (May J).

61.Accordingly, I propose to make an order pursuant to ss 10(3) of the Costs Act that a costs certificate be granted to both parties, 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 parties in respect of the costs incurred by them in relation to the aborted hearing before Justice Macmillan on 12 July 2013.

I certify that the preceding sixty one paragraphs (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 July 2013.

Associate:

Date:  23 July 2013