Konig & Konig
[2008] FamCAFC 124
•16 June 2008
FAMILY COURT OF AUSTRALIA
| KONIG & KONIG | [2008] FamCAFC 124 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – costs certificate – appeal finalised by consent – whether appropriate to grant costs certificates – whether appeal succeeded on a question of law – whether Court “heard” the appeal – costs certificates granted. |
| Brown v Brown (2002) FLC 93-098 S and S [2005] FamCA 852 |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 3(1)(ja), 6 & 9 |
| APPELLANT: | Ms Konig |
| RESPONDENT: | Mr Konig |
| FILE NUMBER: | DNM | 484 | of | 2006 |
| APPEAL NUMBER: | NA | 33 | of | 2008 |
| DATE DELIVERED: | 16 June 2008 |
| PLACE DELIVERED: | Darwin |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 16 June 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 March 2008 |
| LOWER COURT MNC: | [2008] FMCAfam213 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Story |
| SOLICITOR FOR THE APPELLANT: | David Story & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Black |
| SOLICITOR FOR THE RESPONDENT: | Cecil Black Family Lawyers |
Orders
That the Court grants to the appellant wife a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant wife in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent husband a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent husband in respect of the costs incurred by the respondent in relation to the appeal.
That the oral application for costs certificates be removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Konig & Konig 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 DARWIN |
Appeal Number: NA 33 of 2008
File Number: DNM 484 of 2006
| MS KONIG |
Appellant
And
| MR KONIG |
Respondent
EX TEMPORE REASONS
This is an appeal from orders made by Federal Magistrate Lucev on 14 March 2008. The appeal was listed to be heard by me today however the matter was brought forward and I heard it on 27 May 2008 when I was informed that the parties had reached agreement and consent minutes of order were presented to me finalising the appeal.
An oral application was also made for each party to have a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981. I raised with counsel though whether it is appropriate for me to grant a costs certificate given that the appeal was not proceeded with and was finalised by consent. I heard argument about that and this matter was adjourned to today to finalise this issue.
In relation to the costs certificates the relevant sections are respectively Section 9 for the appellant and Section 6 for the respondent. There are effectively three requirements emanating from each of those sections for there to be a costs certificate. Firstly there needs to have been a Federal appeal, secondly the appeal has to have succeeded on a question of law and thirdly the Court being asked to grant the certificate should have heard the appeal.
As to the first requirement there is no issue. This is a Federal appeal and I refer to Section 3(1)(ja) of the Act.
As to the second requirement, initially I had some concerns about whether it is satisfied in this case but I have been referred to certain authorities which assuage those concerns. They are Brown v Brown (2002) FLC 93-098, an unreported Full Court decision of Shears v Shears delivered on 25 July 2005 with the Full Court comprising Deputy Chief Justice Faulks and Finn and Boland JJ, and thirdly, a decision of the Full Court comprising Finn, May and Boland JJ in B v B (costs certificates) (2007) FLC 93-339 delivered on 28 September 2007.
I will not refer in detail to all of those decisions but in summary they are examples of where the Full Court has granted a costs certificate in circumstances like this where the appeal was resolved by consent and upon being called on by the Full Court consent orders have been made. In relation to this requirement, namely whether the appeal has been successful on a question of law the Full Court in B v B (costs certificates) referred to the difficulty of being satisfied about that where the appeal had not proceeded to a full hearing at paragraph 49:
In some cases an error of law asserted by the grounds of appeal may be clear on the face of the orders or the reasons for judgment of the trial Judge. In other cases there maybe some indication given by the trial Judge subsequent to the making of his or her orders, that there is an error in those orders or in the supporting reasons for judgment which cannot be remedied by an application of the slip rule and would amount to an error of law. In other cases it may be necessary to consider the orders or supporting reasons for judgment in light of the written outline of argument of the appellant, and if available, that of the respondent (in which, it is always possible, the error of law may be conceded).
In this case the error of law is conceded and I have been referred to the judgment of the Learned Federal Magistrate. In the context of the Notice of Appeal and the grounds of appeal identified therein, and considering the terms of the consent order it is quite apparent from the orders and reasons of the Learned Federal Magistrate that there was an error of law and that has led to the consent order being made.
I should mention that as I understand it the Learned Federal Magistrate was requested to amend at least one part of his order by way of the slip rule. That would have been a simple way of dealing with this matter but the Learned Federal Magistrate did not think it appropriate.
The third requirement is that the Full Court should have heard the appeal. That has also troubled the appeal courts in the past but that has also been dealt with in the three decisions that I have referred to. There are arguments for and against, and they are set out quite succinctly in a decision of Justice Kirby which is referred to in B v B (costs certificate) in part in paragraphs 34-36. In summary his Honour was considering arguments in favour of a narrow construction and a broad construction and his Honour opted for a broad construction and I am wanting to do the same here. This is open where the appeal proceedings have continued beyond the initial directions hearing, where there are orders made for the purposes of the appeal hearing, and then the appeal is compromised with a concession by the respondent.
In any event this matter was called on on 27 May 2008 when I dealt with the matter and I received consent minutes of order and made orders in terms of those minutes.
I note that in the case of B v B (costs certificate) the Full Court also adopted the broader interpretation of the requirement that the Court concerned should have heard the appeal. Indeed what the Full Court took from Justice Kirby’s adoption of the broader construction, was that it meant no more than having the matter listed before the Court so that it could be disposed of in a public and formal way.
For those reasons I am satisfied that there is a proper basis here for the granting of costs certificates.
I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 16 June 2008.
Associate
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