Jets and Maker (Costs)
[2010] FamCAFC 185
•17 September 2010
Family Court Of Australia
| JETS & MAKER (COSTS) | [2010] FamCAFC 185 |
| FAMILY LAW - APPEAL – Costs of the appeal – Where the Mother has established a justifying circumstance – Where the Father was wholly unsuccessful in the proceedings – Section 117(2A)(e) of the Family Law Act1975 (Cth) – Where the Federal Magistrate made errors of law – Where the Mother had to prosecute the appeal because it was resisted by the Father – Where the Father did not concede the errors made by the Federal Magistrate – Where some aspects of the way the hearing was conducted on behalf of the Father before the Federal Magistrate was troubling – Where no order for costs should be made – Mother’s application for costs dismissed FAMILY LAW - COSTS CERTIFICATES – Where the Federal Magistrate made errors of law – Costs certificates granted to both parties in respect of the appeal – Costs certificates granted to both parties in respect of the new trial – Application granted |
| Fennessy & Gregorian (2009) FLC 93-399 Penfold v Penfold (1980) 144 CLR 311 |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 (Cth) |
| APPLICANT: | MS JETS |
| RESPONDENT: | MR MAKER |
| FILE NUMBER: | MLC | 493 | of | 2009 |
| APPEAL NUMBER: | SA | 83 | of | 2009 |
| DATE DELIVERED: | 17 September 2010 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O’Ryan J |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam1046 |
Representation
| COUNSEL FOR THE APPELLANT: | Mr Salamanca |
| SOLICITOR FOR THE APPELLANT: | MW Law |
| COUNSEL FOR THE MOTHER: | Mr Arnold |
| SOLICITOR FOR THE MOTHER: | Meier Dennison Guymer |
Orders
The Mother’s application for costs be dismissed.
The Applicant Mother is granted 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, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Mother in respect of the costs incurred by the Mother in relation to the appeal.
The Respondent Father is granted 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 Father in respect of the costs incurred by the Father in relation to the appeal.
Both parties are granted a costs certificate pursuant to the provisions of s 8 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 both parties’ in respect of the such part as the Attorney-General considers appropriate of any costs incurred by both parties in relation to the new trial granted by the orders made on 26 March 2010.
IT IS NOTED that publication of this judgment under the pseudonym Jets & Maker (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA |
Appeal Number: SA 83 of 2009
File Number: MLC 493 of 2009
| MS JETS |
Applicant
And
| MR MAKER |
Respondent
Reasons For Judgment
Introduction
On 3 March 2010 I heard an appeal by Ms Jets (“the Mother”) against orders made by Federal Magistrate O’Dwyer in relation to a contravention application brought by Mr Maker (“the Father”).
On 26 March 2010 I delivered judgment allowing the appeal. I made an order that the orders of the Federal Magistrate be discharged and that the matter be remitted for rehearing.
In written submissions filed on behalf of the Mother it was stated that the Father’s contravention application was mentioned before Federal Magistrate Walters and directions were made for the hearing of the application on 27September 2010 as a matter taking up to two days.
On 26 March 2010 I also made the following procedural orders in relation to any costs application made by the Mother or the Father:
4. Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by the Appellant by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other parties within 28 days of the date hereof.
5. Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other parties.
6. Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other parties within a further seven days.
7. Each party endorse on the cover sheet of any submissions filed pursuant to orders 4, 5 and 6, the date upon which a copy of that submission was served on the other parties.
On 22 April 2010 the Mother filed written submissions in relation to costs. On 23 April 2010 the Father filed written submissions in reply.
The Mother seeks an order that:
[The Husband] pay her costs of and incidental to the Appeal on an indemnity basis, alternatively lawyer and client basis, or in the event that she is unsuccessful in such applications, on a party-party basis. Further and in the alternative, pursuant to Sections 8 and 9 respectively of the Federal Proceedings (Costs) Act 1981, the Appellant seeks a cost certificate for a new trial of the proceedings, and/or a cost certificate with respect to the Appeal.
The Mother seeks payment of $28,461.53.
The Father seeks an order that both parties receive costs certificates pursuant to ss 6(1), 6(3)(a) and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Federal Proceedings Costs Act”). The Father also seeks a costs certificate pursuant to s 8(1) of the Federal Proceedings Costs Act with respect to the new trial.
Background
On 20 May 2009 final parenting orders were made by consent.
On 11 August 2009 an application was filed by the Father in which he contended that the Mother contravened order 3(b)(i) of 20 May 2009 in that at about 4.00pm on 7 August 2009 the Mother removed the child from the Pre-School and Child Care Centre thereby “preventing [the Father] from collecting the child at 4.30pm”. In support of the application the Father affirmed a short affidavit on 10 August 2008. The return date of the application was 25 August 2009.
On 25 August 2009, being the first return date of the application, the matter came before the Federal Magistrate. In my reasons I said at [37] that: “Given the nature of the complaints made by the Mother about the conduct of the hearing before the Federal Magistrate I propose to take the unusual course of setting out significant parts of the transcript. What the Mother contends requires careful consideration of what happened and what was said during the hearing”.
On the same day the Federal Magistrate heard the application. The contravention proceedings related to an occasion on 7 August 2009 when the Mother failed to present the child to spend time with the Father. The Mother contended that she had a reasonable excuse for refusing to deliver the child to the Father on that day.
The Federal Magistrate did not accept the Mother’s contention and made the following orders:
UPON the allegation of a breach of the orders made by consent on 20 July 2009 being proved, the Court orders that:
1. The mother enter into a bond to be of good behaviour pursuant to section 70NEC of the Family Law Act 1975 for a period of 24 months.
2. The mother provide, as agreed, the following make-up time by 25 October 2009:
i.two periods of 48 hours; and
ii.one period of 24 hours
on the same days and hours as applies under extant orders, but in addition to those already stipulated.
3. The question of the father’s costs is reserved.
In an amended notice of appeal there were five grounds of appeal and very detailed particulars provided in support of each ground. I observed at [109] that “Consideration of each of the grounds and supporting particulars reveals that there is a considerable overlapping of the matters complained of in the grounds of appeal and the particulars”.
I also said at [103] that I did not propose, as I indicated in discussion, and it was not traversed, to deal seriatim with each of the grounds of appeal and each complaint set out in the particulars provided in support of each ground. I also said that I did not propose to deal with each matter argued for in the written and oral submissions of each party.
However, I did at [104] briefly summarise some of the contentions of the Mother as they were indicative of the nature of the complaints made by her. On behalf of the Mother it was submitted that the Federal Magistrate manifested prejudice against and/or prejudged relevant evidence proposed to be called on behalf of the Mother. It was also submitted on behalf of the Mother that on any objective consideration of the addresses and exchanges between the Federal Magistrate, counsel for the Father and solicitor for the Mother, that the Federal Magistrate clearly manifested that he had determined that the Mother did not have a reasonable excuse in not allowing the child to spend time with the Father on 7 August 2009 before any evidence was called at the hearing.
In my reasons I said:
106. This is a difficult case and at the outset I record that I am troubled about the way the hearing was conducted. However, I am of the view that the appeal can be readily disposed of.
107. There are a number of obvious fundamental errors made by the Federal Magistrate that do not require much elaboration. In my view, a number of the errors are readily apparent from consideration of what I have set out above which was said and happened during the hearing.
108. In my view, there is considerable merit in the complaints made by the Mother. Overall, I accept the submissions on behalf of the Mother and observe that there are a number of complaints made which, in my view, are well established. I am satisfied that there were a number of appealable errors made by the Federal Magistrate and that there was a miscarriage of justice.
I then at [109] to [121] briefly outlined my reasons for reaching this conclusion.
I also found at [123] that the Federal Magistrate should not have relied upon evidence contained in previous reports of two experts.
I also found at [124] that “the Federal Magistrate, on any fair reading of the transcript of the hearing before him, either prejudged significant issues, or at the very least, said things that would create an apprehension of predetermination”.
I observed at [125]:
I have read all the material and I have no doubt that even before the Father commenced his case, a fair-minded lay-observer might reasonably apprehend that the Federal Magistrate might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide. In fact, I am of the opinion that the Federal Magistrate had formed a view about whether or not the Mother would be able to establish a reasonable excuse.
I also said at [126] that I was “of the view that in relation to a number of matters, including the orders made the Federal Magistrate failed to give adequate reasons”.
It was agreed that in the event the appeal succeeded that the matter should be remitted for rehearing by a Federal Magistrate other than Federal Magistrate O’Dwyer and independently of this concession, I agreed that the hearing should be remitted.
Relevant Principles
Section 117 of the Family Law Act 1975 (Cth) deals with costs of proceedings under the Act.
Section 117(1) of the Family Law Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
Section 117(2) of the Family Law Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
Section 117(2A) of the Family Law Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g): see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 per the Full Court (Kay, Warnick and Boland JJ).
As to the relationship between s 117(1) and s 117(2) of the Family Law Act and the nature of the hearing of an application pursuant to s 117 see Penfold v Penfold (1980) 144 CLR 311 per Stephen, Mason, Aickin and Wilson JJ at 315- 16.
There are various relevant machinery provisions in Part 19 of the Family Law Rules 2004 (Cth) (“the Rules”). Rule 19.08 provides:
(1) A party may apply for an order that another person pay costs.
(2) An application for costs may be made:
(a)at any stage during a case; or
(b)by filing an Application in a Case within 28 days after the final order is made.
(3) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
Note 1 The court may make an order for costs on its own initiative (see rule 1.10).
Note 2 A party may apply for an order for costs within 28 days after the filing of a notice of discontinuance by the other party (see subrule 10.11 (4)).
Note 3 A party may apply for an extension of time to make an application (see rule 1.14).
(4) In making an order for costs, the court may set a time for payment of the costs that may be before the case is finished.
Rule 19.11 of the Rules provides:
(1) Before making an order for costs against a lawyer or other person who is not a party to a case, the court must give the lawyer or other person a reasonable opportunity to be heard.
(2) If a party who is represented by a lawyer is not present when an order is made that costs are to be paid by the party or the party’s lawyer, the party’s lawyer must give the party written notice of the order and an explanation of the reason for the order.
Part 19.5 of the Rules deals with the calculation of costs. Rule 19.18 provides:
(1) The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Example
For paragraph (1) (c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.
(2) If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
(3) In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
Rule 19.19 of the Rules provides:
(1) This rule sets out the maximum amount of party/party costs a person may recover:
(a) if the court orders that costs are to be paid and does not fix the amount; and
(b) if a person is entitled to costs under these Rules.
(2) The maximum amount of costs that a person may recover under this rule is as follows:
(a) for fees — an amount calculated in accordance with Schedules 3 and 4;
(b) for an expense mentioned in Schedule 4 (other than item 101) — the amount specified in Schedule 4 for that expense;
(c) for any other expenses — a reasonable amount.
The Family Court has jurisdiction to make orders for indemnity costs. In Stephens & Stephens & Ors (Enforcement) (Costs) [2010] FamCAFC 172 said at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2002) 109 FCR 77 per Lindgren J at [53] to [90].
Statutory Considerations
Very extensive written submissions were made on behalf of the Mother in relation to the relevant statutory considerations.
In relation to the s 117(2A)(a) of the Family Law Act, being the financial circumstances of each of the parties to the proceedings, on behalf of the Mother it was submitted that she has minimal assets and earns a modest income. It was submitted that the Father has assets and operates his own business. It was submitted that the parties entered into a property settlement on 17 September 2009 whereby the Mother received $36,000.00, and the Father received a residence at suburb A and all the contents. It was submitted that the financial circumstances of the parties are such that an order can and should be made against the Father for payment of the Mother’s costs, and that the Father is capable of satisfying such an order.
In relation to s 117(2A)(b) of the Family Law Act neither party is in receipt of a grant of legal aid.
In relation to s 117(2A)(c) of the Family Law Act being 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 it was submitted on behalf of the Mother that whilst the Federal Magistrate erred in the conduct of the contravention proceedings, that the Father “conducted his case in a manner which substantially contributed to such conduct”.
On behalf of the Mother it was submitted that in numerous instances, the Father objected to materials sought to be relied upon by the Mother, and/or made submissions which resulted in a denial of natural justice and/or a miscarriage of justice, which were adopted by the Federal Magistrate.
On behalf of the Mother it was submitted that the Father initiated and/or participated in the ventilation of numerous matters including evidence proposed to be called on behalf of the Mother, in circumstances where objection was taken to the admission of such evidence by the Father, and ultimately it was not admitted.
On behalf of the Mother it was submitted that the Father invited and/or participated in the erroneous procedure, in the conduct of the hearing of the contravention application.
On behalf of the Mother it was submitted that the Father referred to the Mother’s affidavit, which included the report of Ms S, psychologist, and thereafter objected to its admissibility into evidence.
On behalf of the Mother it was submitted that the Father required the Mother’s witnesses to be placed on affidavit prior to being permitted to give evidence in the contravention application proceedings.
On behalf of the Mother it was submitted that the Father raised the issue of the evidence proposed to be called on behalf of the Mother and the Federal Magistrate embarked upon an investigation as to the substance of the evidence to be called, thereby leading to a miscarriage of justice.
On behalf of the Mother it was submitted that the Father submitted that the report of Ms S was in breach of s 102(A) of the Family Law Act, objected to its admission into evidence, and submitted that Ms S should not be in a position to give evidence unless she swore an affidavit. It was submitted that the submission was accepted by the Federal Magistrate, which lead to a miscarriage of justice.
On behalf of the Mother it was submitted that the Father opposed the Mother’s applications for adjournments inter alia on the basis that she had not caused affidavits to be prepared on behalf of the witnesses that she proposed to call. It was submitted that the Federal Magistrate accepted such submissions, thereby leading to a miscarriage of justice.
On behalf of the Mother it was submitted that the Father supported the interpretation of the Federal Magistrate, that the Mother’s position was that, “the child should never see the father again without supervision, I presume,” in circumstances where, on all of the available evidence and having regard to the Mother’s proposal for a suspension of time, was not reasonably open to the Father and/or the Federal Magistrate.
On behalf of the Mother it was submitted that the Father effectively invited the Federal Magistrate to comment upon the relative merits of the contravention application before him, thereby leading to a miscarriage of justice.
On behalf of the Mother it was submitted that the Father conducted the contravention application proceedings in an opportunistic manner, where inter alia he amended the penalty that he sought to be imposed upon the Mother, and the amount of make-up time required by him, thereby leading to a miscarriage of justice. It was submitted that this occurred after the Federal Magistrate sought information as to whether the Father had spent time with the child after the alleged contravention.
On behalf of the Mother it was submitted that the Father contended that the report of Ms S was in breach of s 102(A) of the Family Law Act, in that it allegedly purported to provide evidence of the consultation with an assessment of the child. It was submitted that this submission was accepted by the Federal Magistrate, in circumstances where the report was relevant, “to the contention of the mother that she had a reasonable excuse.” It was submitted that his Honour’s refusal to admit the report into evidence constituted a miscarriage of justice.
On behalf of the Mother it was submitted that the Father inadvertently misled the Federal Magistrate in submitting that the witnesses, including alleged professional witnesses, were required to be placed on affidavit in order for the Mother to rely upon same. It was submitted that this submission was accepted by the Federal Magistrate, and lead to a miscarriage of justice.
On behalf of the Mother it was submitted that the Father inadvertently misled the Federal Magistrate in quoting selectively from the report of Ms S, and thereafter objecting to the admissibility of the balance of such report. It was submitted that his Honour relied upon the selective quotation, which thereby caused a miscarriage of justice.
On behalf of the Mother it was submitted that the Father sought, and was permitted to provide, evidence in relation to issues raised by the Mother in her affidavit sworn on 25 August 2009, prior to her giving any evidence, resulting in a miscarriage of justice.
On behalf of the Mother it was submitted that many of the grounds of appeal were successful. It was submitted that on an objective basis, it should have been clear to the Father that at least one or other of the grounds would have been successful and result in a new hearing. It was submitted that the response to the appeal by the Father lacked conviction and merit. It was submitted that the Father’s grounds were on occasion spurious and on others, untenable. It was submitted that the Father should not have resisted the appeal until at least a point in time when he received the initial grounds of appeal. Further, the process was so fundamentally flawed on the hearing date that an attempt should have been made at that stage to adjourn or abort the hearing.
In relation to s 117(2A)(e) of the Family Law Act, being whether any party to the proceedings has been wholly unsuccessful in the proceedings, on behalf of the Mother it was submitted that the manner in which the hearing of the contravention application was conducted lead inexorably to the setting aside of the orders of the Federal Magistrate. It was submitted that the result was that each of the grounds was upheld and accordingly the Father was wholly unsuccessful in resisting the Appeal.
In relation to s 117(2A)(f) of the Family Law Act, being 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, on behalf of the Mother it was submitted that her position as enshrined in her appeal has consistently been that the decision of the Federal Magistrate was fundamentally flawed. It was submitted the Mother was placed in a position by the Father whereby she was forced to expend substantial time and funds in order to properly present her arguments, in circumstances where the Father knew or ought to have known that the appeal was likely to succeed.
In relation to s 117(2A)(g) of the Family Law Act, being such other matters as the court considers relevant, it was submitted that in the event that I considered the submissions made in relation to s 117(2A)(c) to not necessarily properly fall within that consideration, then they fall within s 117(2A)(g). It was submitted that given the confusing and unwieldy manner in which the hearing was conducted, whereby there were lengthy exchanges between the Federal Magistrate and the legal practitioners prior to the hearing formally commencing, and after the conclusion of the evidence, the transcript and the pleadings required comprehensive scrutiny.
On behalf of the Mother it was submitted that the scrutiny produced numerous instances of grounds of appeal. It was submitted that the comments of the Federal Magistrate both prior to the hearing of the contravention application and subsequent thereto, were so prejudicial that the Mother had no alternative but to embark upon an appeal in order to attempt to rectify the record. It was submitted that given the general difficulties that the Mother has experienced as a result of the May 2009 orders, it was in the child’s best interests that an appeal be pursued, so as not to allow the appellation of “a no access mother” to be applied to the Mother.
On behalf of the Mother reference was made to the decision of Lindemeyer J in Telfer and Telfer (1996) FLC 92-688 and also JJT & Ors; ex parte Victoria Legal Aid (1998) FLC 92-812. It was submitted that this court has a broad discretion pursuant to s 117 of the Family Law Act, which should not be fettered providing that the court has regard to the matters in s 117(2A) so far as they are relevant. It was submitted that all factors are required to be taken into account and balanced to determine whether the overall circumstances justify the making of an order for costs. It was submitted that the overriding contention is that the Father should not be the beneficiary of an order which was obtained in a manner which was fundamentally flawed, and to which he contributed to the procedure, and acquiesced in its making.
Submissions were then made on behalf of the Mother in support of her contention that any costs be assessed on an indemnity basis. Reference was made to the decision of the Full Court (per Coleman, Boland and Thackray JJ) in Fennessy & Gregorian (2009) FLC 93-399, where the considerations relevant to awarding lawyer/client costs as opposed to indemnity costs were canvassed. It was submitted that inter alia where the court determines that substantial time was “properly spent on the case” by the Appellant’s legal advisers, such criteria was supportive of an order for lawyer/client costs, pursuant to r 19.18(3)(e) of the Rules.
On behalf of the Mother it was submitted that in the event that I was not persuaded to make an order for indemnity or lawyer/client costs, that the criteria for awarding party/party costs has been satisfied.
On behalf of the Mother it was submitted that in the event that her submissions with respect to the cost applications against the Father are unsuccessful, then pursuant to s 9(1)(a) and (b) of the Federal Proceedings Costs Act, this is an appropriate matter for a costs certificate to be granted to her in respect of the appeal. The Mother also sought a certificate pursuant to s 8(1) or (2) of the Federal Proceeding Costs Act for the costs of and incidental to the new hearing or trial of the Father’s contravention application.
On behalf of the Father it was submitted that the appeal succeeded on questions of law.
On behalf of the Father it was submitted that he conceded to the Federal Magistrate that a short adjournment of the hearing would not prejudice him.
On behalf of the Father it was submitted that the Federal Magistrate fell into errors of his own making including, but not limited to, his attitude to the mother; reading reports not in evidence; attempting to resolve matters not before him; and otherwise each party had culpability in terms of responsibility for other matters in which the Federal Magistrate fell into error.
Conclusion
Notwithstanding the length of the written submissions of the Mother, and also my previous reasons for judgment, I am of the view that this application can be shortly disposed of. However, the issue that is raised is a difficult one.
In my view, an important consideration is s 117(2A)(e) of the Family Law Act. In my opinion, the Mother has established a justifying circumstance, namely the Father was wholly unsuccessful in the proceedings.
Section 9(1) of the Federal Proceedings Costs Act provides that the court may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal. However, there are two pre conditions. First, s 9(1)(a) provides that the appeal must succeed on a question of law. Second, s 9(1)(b) provides that in accordance with s 117 of the Family Law Act each party to the appeal bears his or her own costs. In other words, not only must the appeal succeed on a question of law but in accordance with s 117 of the Family Law Act, the circumstances are such that the costs of the successful appeal would not lie with the unsuccessful respondent.
Section 6 of the Federal Proceedings Costs Act provides that where a Federal appeal succeeds on a question of law the court may grant to the respondent to the appeal a costs certificate in respect of the appeal.
In this case the Federal Magistrate did make errors of law. Thus, the first condition of s 9 of the Federal Proceedings Costs Act is satisfied, as is the requirement of s 6 of the Act.
As to the second condition of s 9 of the Federal Proceedings Costs Act, the Mother has established a justifying circumstance. The question that I have to consider is whether notwithstanding the Mother has established a justifying circumstance, having regard to the matters in s 117(2A) of the Family Law Act, I am persuaded that the general rule in s 117(1) of that Act should apply, namely that each party bear their own costs of the appeal proceedings.
The Father simply submitted that the Federal Magistrate fell into errors of his own making. No submissions were made by the Father in relation to the matters in s 117(2A) of the Family Law Act, however, I infer that his contention is that it was all the fault of the Federal Magistrate and that may be a matter that is relevant under s 117(2A)(g) of the said Act.
Section 9 of the Federal Proceedings Costs Act clearly contemplates a circumstance where an appeal succeeds on a question of law but an order is made that the unsuccessful respondent pays the costs of the appeal.
I also observe that, in an appropriate case, the court may make an order that an unsuccessful respondent pays the costs of an appeal but both the appellant and the respondent are granted a certificate pursuant to s 8 of the Federal Proceedings Costs Act in relation to a retrial.
I am not dealing with any issue of costs of the proceedings before the Federal Magistrate but the costs of the appeal proceedings heard and determined by me. The Mother had to prosecute the appeal because it was resisted by the Father. The Father did not concede the errors made by the Federal Magistrate.
I am satisfied that there is merit in some of the matters raised by the Mother in relation to the conduct of the proceedings by the Father. For example, I was troubled by some aspects of the way the hearing was conducted on behalf of the Father before the Federal Magistrate. However, overall the Federal Magistrate had responsibility for the way in which the hearing proceeded before him and he made rulings in relation to various matters raised on behalf of the Father. I need not repeat what I said in my reasons for judgment in relation to the appeal. However, it should be apparent that I was very concerned about how the hearing was conducted. In all the circumstances, I am persuaded that no order for costs should be made and the general rule in s 117(1) of the Family Law Act will apply.
In the circumstances, the second condition in s 9(1)(b) of the Federal Proceedings Costs Act has been satisfied. I therefore propose to grant the Mother a certificate pursuant to s 9 of the Federal Proceedings Costs Act and also grant the Father a certificate pursuant to s 6 of that Act.
There are then the costs of the further hearing. Section 8(1) of the Federal Proceedings Costs Act provides that where, in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial the court may, on the application of a party, grant to the party a costs certificate in respect of the new trial.
I propose to grant to each party a costs certificate in respect of the new trial.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 17 September 2010.
Associate:
Date:17 September 2010
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