Keenon and Keenon (No. 2)
[2008] FamCAFC 80
•19 June 2008
FAMILY COURT OF AUSTRALIA
| KEENON & KEENON (NO 2) | [ 2008] FamCAFC 80 |
| FAMILY LAW - COSTS – Where parties had appealed against, inter alia, costs order made by Federal Magistrate – Where appeal upheld – Where submissions sought on question of remission for re hearing or re-exercise of the discretion in relation to costs order - Where both parties sought matter be remitted to Federal Magistrate – Matter remitted to Federal Magistrate for determination of costs thrown away as a result of adjournment of the hearing - Where parties sought certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for appeal – Certificates granted for appeal. |
Federal Proceedings (Costs) Act 1981 s 6, s 9
| APPELLANT: | Ms Keenon |
| RESPONDENT: | Mr Keenon |
| FILE NUMBER: | SYC | 2291 | of | 2007 |
| APPEAL NUMBER: | EA | 119 | of | 2007 |
| DATE DELIVERED: | 19 June 2008 |
PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | Written Submissions |
| LOWER COURT JURISDICTION: | Federal Magistrate’s Court |
| LOWER COURT JUDGMENT DATE: | 12 September 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 811 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Pagani |
| SOLICITOR FOR THE APPELLANT: | Miller Harris Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hodgson |
Orders
That the issue of costs of the hearing on 12 September 2007 before Federal Magistrate Kemp and the costs thrown away as a consequence of the adjournment of the hearing be remitted for rehearing by Federal Magistrate Kemp.
That the Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Keenon & Keenon (No 2) is approved 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 119 of 2007
File Number: SYC 2291 of 2007
| Ms Keenon |
Appellant
And
| Mr Keenon |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 May 2008 I delivered reasons for judgment and published orders in this matter. Orders 3 and 4 of my orders were as follows:
3.That appellant wife file and serve on or before 12 May 2008 brief written submissions as to whether the matter should be remitted for rehearing before Federal Magistrate Kemp, or in the event that it is sought that the discretion be re-exercised, setting out particulars of orders sought.
4.That the respondent husband file and serve on or before 19 May 2008 brief written submissions as to whether the matter should be remitted for rehearing before Federal Magistrate Kemp, or in the event that it is sought that the discretion be re-exercised, setting out particulars of orders sought.
On 28 May 2008 further written submissions in respect of the rehearing were filed on behalf of the wife. At the time of filing those submissions the wife’s solicitors wrote to the Appeal Registrar in the following terms:
We refer to our letter dated 20 May 2008, requesting an extension.
We confirm the appeals registry advised that submissions could be extended provided the other side consented to the extensions.
We sent an email on 20 May 2008 requesting Mr Hodgson agree. However, we have not heard from Mr Hodgson as to whether he consents or not to the extension.
…
Submissions were received on behalf of the husband on 18 June 2008. Mr Hodgson of counsel on behalf of the husband supported the wife’s submissions.
In her written submissions, counsel for the wife noted that at the commencement of the appeal:
…it was submitted on behalf of the wife that the question of the costs of the adjournment (the subject of the appeal) be reserved to the trial judge or Federal Magistrate hearing the s.79A substantive matter. That remains the submission of the wife…
(Wife’s submissions, paragraph 1)
The wife then set out further orders sought, including an order for the provision of costs certificates.
The wife further noted:
2.The matter has now proceeded to hearing, and written submissions have been filed by the wife. The husband’s response to those submissions is due to be filed by 10 June 2007, and the wife’s reply by 17th June.
3.The Federal Magistrate now has before him all of the financial material filed by the parties, and has had the benefit of observing the parties in the witness box, and subjected to cross-examination. It is submitted that the Federal Magistrate, upon his determination of the substantive matter, will be apprised of much, if not all, of the evidence necessary to enable him to determine the issues of costs, not only arising out of the substantive hearing, but of the matters preceding the adjournment application.
4.The parties have now tendered, as part of their evidence, financial documents and other material setting out their respective financial circumstances. They have also given oral evidence of these matters, and been cross-examined on financial issues.
5.It is submitted that the parties’ costs would be minimized by remitting the matter of costs of the adjournment and first day of hearing back to the Federal Magistrate, to be determined at the same time as any costs applications which may flow from his final decision.
(Wife’s submissions, paragraphs 2-5)
I accept the cogency of the matters set out in the wife’s written submissions and propose to remit the question of the costs of and incidental to the adjourned hearing to the Federal Magistrate.
Both parties asserted, as there had been an error of law, that certificates should be granted pursuant to the Federal Proceedings (Costs) Act1981 (Cth). Mr Hodgson submitted a certificate should also be granted for the rehearing. I accept error of law was established by the wife in her appeal, and that certificates should be granted for the appeal. In the circumstances of this case, where the Federal Magistrate will be dealing with costs issues arising from the substantive proceedings, I do not find it is appropriate to grant a certificate for the rehearing.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
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