Kuriakin and Kuriakin
[2011] FamCAFC 199
•16 September 2011
FAMILY COURT OF AUSTRALIA
| KURIAKIN & KURIAKIN | [2011] FamCAFC 199 |
| FAMILY LAW – APPEAL – Where no transcript of the proceedings before the Federal Magistrate available – Where both parties agree that the orders made by the learned Federal Magistrate involved mathematical errors which were agreed to have been material to the exercise of the Federal Magistrate’s discretion – Where both parties asserted that the exercise of discretion by the Federal Magistrate had further miscarried in ways not specifically referable to mathematical errors – Where, although not agreed as to the nature and impact of the errors, both parties conceded that appealable error could be demonstrated if it needed to be – It would not be sensible to require parties to agitate an appeal simply so as to enliven the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Orders for settlement of property made by the Federal Magistrate set aside, the proceedings for settlement of property remitted for re-hearing and both parties granted costs certificates. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Mrs Kuriakin |
| RESPONDENT: | Mr Kuriakin |
| FILE NUMBER: | SYC | 5463 | of | 2008 |
| APPEAL NUMBER: | EA | 157 | of | 2010 |
| DATE DELIVERED: | 16 September 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 12 & 16 September 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 January 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 40 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Givney |
| SOLICITOR FOR THE APPELLANT: | Marsdens Law Group |
| COUNSEL FOR THE RESPONDENT: | Mr Reeve |
| SOLICITOR FOR THE RESPONDENT: | MacElbing Mednis & Associates |
Orders
That the time within which to lodge an appeal against orders made by Federal Magistrate Wilson on 22 January 2010 be extended to 5 pm on 15 December 2010.
That, by virtue of order 1 hereof, the Notice of Appeal filed on 15 December 2010 is deemed to have been filed on time.
That the orders for settlement of property made by Federal Magistrate Wilson on 22 January 2010, being orders 1, 2 and 3, be set aside.
That the proceedings for settlement of property be remitted to the Federal Magistrates Court for re-hearing.
That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s.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 that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.
That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s.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 that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s.8 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 that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kuriakin & Kuriakin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 157 of 2010
File Number: SYC 5463 of 2008
| Mrs Kuriakin |
Appellant
And
| Mr Kuriakin |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This appeal came before the Court on Monday 12 September 2011, at which time Mr Givney of counsel appeared for the respondent and Mr Reeve appeared as counsel for the appellant. The matter had previously been before the Court for directions, during the course of which it became apparent that there was no transcript of the trial of the hearing of the proceedings before Wilson FM in late 2009. The Court then expressed its concern, as did counsel for both parties, as to the impact of the absence of transcript.
The reference to absence of transcript is not just a reference to an absence of a transcription of the proceedings before the learned Federal Magistrate, but rather that inquiries have revealed that there was no sound recording of the proceedings by reference to which the transcription service could prepare a transcript. Thus, there was, and was never going to be, a transcript of the proceedings on 15 October 2009.
The matter was complicated by the fact that the learned Federal Magistrate whose judgment of 22 January 2010 gave rise to the appeal to this Court had retired. A slip rule application was subsequently agitated before another Federal Magistrate, as it needed to be, Wilson FM having retired and thus being unable to entertain the slip rule application. The slip rule application, for reasons which are now of no significance, was dismissed by the Federal Magistrate before whom it was agitated.
On Monday 12 September 2011, albeit in different respects and with assertedly quite different implications, counsel for both parties placed on the court record two matters. The first was that the orders made by the learned Federal Magistrate involved mathematical errors. The impact of those errors was not agreed upon, but the fact that there had been errors made was. The errors were agreed to have been material to the exercise of discretion of Wilson FM.
The second matter which counsel for both parties placed on the court record, again with assertedly quite different implications, was that the exercise of discretion by the learned Federal Magistrate had miscarried in ways not specifically referable to mathematical errors.
The position is thus that on both sides of the record there were concessions that appealable error could be demonstrated if it needed to be, with respect to matters of significance, the first being material errors of fact, the second being the miscarriage of the exercise of discretion.
Although the Court does not need to express an opinion about it, were it necessary to do so the absence of a transcript, by reference to which the correctness or otherwise of the decision of the learned Federal Magistrate could be tested, would be a matter which would weigh heavily in this Court’s approach to determining the appeal as an intermediate appeal court conducting appeals by way of rehearing, as this Court undoubtedly does. The interests of justice would not appear to be well served by having a subordinate Court decision which could not be tested due to the absence of a record of the proceedings in that Court.
There are, it is readily apparent, two bases upon which, had this appeal been agitated, it would have been successful, and potentially a third relating to the absence of a record of the trial.
Justice Kirby addressed this issue some years ago and concluded that in such circumstances it would not be sensible to require parties to agitate an appeal simply so as to enliven the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). His Honour’s opinion in that regard has been followed on a number of occasions by this Court and, the Court understands, the Full Court of the Federal Court. There is logic in his Honour’s opinion, as is readily apparent.
To put the issue rhetorically, where success on appeal is conceded, albeit for different reasons, to be inevitable why should the Court’s resources be tied up in hearing an appeal and producing a judgment when that is agreed and the parties and their lawyers are similarly inconvenienced? For the litigants, the inconvenience has a monetary element, given that any costs certificate would not recoup the full expense visited upon each party of running an appeal purely in order to enliven the Federal Proceedings (Costs) Act 1981 (Cth).
In the circumstances of this case, and as discussed with counsel for the parties on 12 September 2011, the Court proposes making a series of orders, the terms of which were traversed with counsel for both parties on 12 September 2011. Counsel for both parties agreed that the orders this Court should make would be in the terms which follow.
It perhaps should be recorded that the reason the case was not disposed of in the manner indicated on 12 September 2011 was that at that time the Court was not in possession of a delegation of jurisdiction to a single Judge by the Chief Justice pursuant to the relevant section of the Act. The Court now has the delegation from the Chief Justice and thus has jurisdiction to make the orders proposed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 16 September 2011.
Associate:
Date: 28.09.11
0
2