Koldsjor and Addington (Costs Certificates)

[2009] FamCAFC 170

FAMILY COURT OF AUSTRALIA

KOLDSJOR & ADDINGTON (COSTS CERTIFICATES) [2009] FamCAFC 170

FAMILY LAW – APPEAL – APPLICATION FOR AN EXTENSION OF TIME – Where the mother had been given leave to apply for costs certificates – Where the mother’s solicitors had applied to the wrong court for the certificates – Extension of time granted
FAMILY LAW – APPLICATION FOR COSTS CERTIFICATES – Costs certificates granted

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPELLANT: Ms Koldsjor

RESPONDENT: Mr Addington

FILE NUMBER: SYF 4035 of 2006

APPEAL NUMBER: EA 39 of 2008

DATE DELIVERED: 16  September 2009

PLACE DELIVERED: Perth

JUDGMENT OF: Coleman, Boland & Thackray JJ

HEARING DATE: By way of written application

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 7 March 2008

LOWER COURT MNC: [2008] FamCA 143

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Musgrave Lister Family Lawyers

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket Family Lawyers

Orders

1. That the time within which the appellant had to seek costs certificates pursuant to the orders made on 12 February 2009 be extended to 11 August 2009. 

2. That the Court grants to the appellant a costs certificate pursuant to the provisions of 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.

3. That the Court grants to the appellant a costs certificate pursuant to the provisions of s 8 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 new trial ordered.

IT IS NOTED that publication of this judgment under the pseudonym Koldsjor & Addington (Costs Certificates) 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 39  of 2008
File Number: SYF 4035  of 2006

Ms Koldsjor

Appellant

And

Mr Addington

Respondent

REASONS FOR JUDGMENT

1. On 12 February 2009 we delivered reasons in relation to an appeal by Ms Koldsjor (“the mother”).  The appeal was allowed (by majority) and the matter was remitted for rehearing.

2. Mr Addington (“the father”) had applied for and was granted costs certificates pursuant to the Federal Proceedings (Costs) Act1981 (Cth).

3. The mother had not formally applied for costs certificates.  We therefore made an order in the following terms: 

   That the appellant mother have leave to apply for costs certificates pursuant to ss 8 and 9 of the Federal Proceedings (Costs) Act1981, such leave to be exercised within 28 days of the making of these orders. 

4. The application we are now called upon to determine is that filed by the mother on 11 August 2009 in which she seeks costs certificates and leave to make the application out of time. 

Background

1. In her affidavit filed in support of the application, the mother’s solicitor advised that an application for costs certificates was filed on 11 March 2009 (i.e. within the 28 day time period allowed); however, the application was filed in the Federal Magistrates Court.  The solicitor said the application was filed in that Court “in accordance with the recommendations of the Full Court”.  This was a reference to the majority judgment of Boland and Thackray JJ, in which the following statement was made at [121]:

   We therefore conclude that the matter should be remitted for hearing.  … Given the nature of the dispute it may be considered appropriate for the matter to be ultimately determined by a Federal Magistrate.

2. The mother’s solicitors were advised that the application for costs certificates arising out of the appeal and the re-hearing ordered should not have been filed in the Federal Magistrates Court, as only the Full Court of the Family Court of Australia had authority to grant such certificates.    

3. For reasons sought to be explained in the affidavit of the mother’s solicitor, it took until 11 August 2009 for the present application to be made to the Full Court. 

4. The father does not oppose the application.   

The law

1. The Family Law Rules 2004 permit a party to apply for an extension of a time period. Rule 1.14 provides:

   (1)A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.

   (2)A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.

   …

2. The Court may grant an extension of time where it is satisfied that the justice of the case requires it: Gallo v Dawson (1990) 93 ALR 479 at 480.

Discussion

1. As the appeal succeeded on a question of law, and as no order for costs was made, the mother was entitled to apply for costs certificates.  Such certificates can only be granted on request being made, which is why we gave the mother leave to make an application.  The mother instructed her solicitors to make the appropriate application within the time we proposed but the solicitors erred in filing the application in the wrong court. 

2. The error of the mother’s solicitors should not be visited upon her.  The interests of justice would be served by the extension of time being granted to 11 August 2009, which is the date on which the application was filed.  For the same reasons we granted costs certificates to the father, we consider costs certificates should be granted to the mother. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate:     

Date:              16 September 2009