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

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

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

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 Jacob and Lawrence (No 2)

Details

AGLC: Jacob and Lawrence (No 2) [2013] FamCA 544
Case: [2013] FamCA 544
Decision Date: 23 July 2013

CaseChat Overview and Summary

In *Jacob and Lawrence (No 2)*, Berman J considered applications for costs made by both the applicant and the respondent in family law proceedings. The dispute involved an application by the respondent for an order that the applicant pay the respondent's costs of the proceedings before Justice Macmillan, from their initiation to the delivery of judgment. Additionally, each party sought a costs certificate concerning a hearing that was aborted due to the disqualification of the presiding judicial officer.

The court was required to determine whether the circumstances justified making a costs order against the applicant in favour of the respondent for the proceedings before Justice Macmillan, considering the factors outlined in section 117(2A) of the relevant legislation. Furthermore, the court had to assess whether it was appropriate to grant costs certificates to each party for the costs incurred in relation to the aborted hearing date, pursuant to section 10(3) of the *Federal Proceedings (Costs) Act 1981* (Cth).

Berman J reasoned that the respondent was entitled to an order for costs in respect of the proceedings before Justice Macmillan, finding that the circumstances warranted such an order. Regarding the aborted hearing, the court was satisfied that it was appropriate to grant costs certificates to both the applicant and the respondent, acknowledging the unusual circumstances of the disqualification.

Consequently, the court ordered that the applicant pay the respondent's costs of and incidental to the proceedings before Justice Macmillan, from the initiation of the proceedings to the delivery of judgment, with the quantum to be agreed or taxed on a party-party basis. The court also granted costs certificates to both the applicant and the respondent pursuant to section 10(3) of the *Federal Proceedings (Costs) Act 1981* (Cth) for the costs incurred in relation to the aborted hearing date.

Orders

Orders of the court

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.

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

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.

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..

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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