Lummis & Lummis - [2008] FMCAfam 1274

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUMMIS & LUMMIS

[2008] FMCAfam 1274

FAMILY LAW – Costs – proceedings adjourned when judicial officer before whom proceedings listed unexpectedly absent – application for costs certificate under Federal Proceedings (Costs) Act.

Federal Proceedings (Costs) Act 1981 s.10(2)

Lindner & Lindner (1985) FLC 91-638
Redshaw & Redshaw (1989) FLC 92-053, (1989) 13 Fam LR 495
W & S (2005) FLC 93-229, (2005) 33 Fam LR 546

Applicant:

MS LUMMIS

Respondent:

MR LUMMIS

File Number:

PAC 3114 of 2007

Judgment of:

Halligan FM

Hearing date:

10 July 2008

Date of Last Submission:

10 July 2008

Delivered at:

Parramatta

Delivered on:

10 July 2008

REPRESENTATION

Counsel for the Applicant:

Ms DeVere

Solicitors for the Applicant:

Champion Legal

Counsel for the Respondent:

Mr Batey

Solicitors for the Respondent:

Hugh Byrne Solicitor

IT IS NOTED that publication of this judgment under the pseudonym Lummis & Lummis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 3114 of 2007

MS LUMMIS

Applicant

And

MR LUMMIS

Respondent

REASONS FOR JUDGMENT

These property settlement proceedings were initially listed for hearing before me on Thursday, 5 June 2008. Due to a serious illness in my family I was unable to attend to the matter on that date. No other Federal Magistrate being available, the matter was adjourned not reached until today. In the event, the parties have been able to resolve the matter ultimately and consent orders have been made. However, both parties have now made application for a certificate under

sub-s.(2) of s.10 of the Federal Proceedings (Costs) Act.
In support of that application, counsel for the husband has referred me to two authorities being decisions of judges of the Family Court of Australia, namely Lindner & Lindner (1985) FLC 91-638, a first instance decision of Purdy J, and Redshaw & Redshaw (1989)

FLC
92-053, (1989) 13 Fam LR 495, a first instance decision of Mullane J. I have also looked briefly at a first instance decision of Guest J of the Family Court in the matter of W & S (2005) FLC 93-229, (2005) 33 Fam LR 546.
In that latter decision his Honour considers a number of decisions in relation to applications for costs certificates under s.10, both sub-s.(2) and sub-s.(3), although the majority have been under sub-s.(3). His Honour does refer to the two decisions cited by counsel for the husband in the course of that judgment. Ultimately his Honour has summarised the position from the Federal Court and Family Court decisions that he reviewed at para. 25 by suggesting that:
“The approach (to s.10(3)) has varied, notwithstanding that the facts underpinning each decision bear modest dissimilitude. However, in the result, it is the language of the Act itself that will govern the success or otherwise of an application pursuant to s.10(3) of the Act.”
The same may well be said of an application under sub-s.(2) of that Act.
The decision of Purdy J in Lindner & Lindner

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Lummis & Lummis [2008] FMCAfam 1274
Case: [2008] FMCAfam 1274
Decision Date: 10 July 2008

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ms Lummis brought property settlement proceedings against Mr Lummis. The matter was initially scheduled for hearing on 5 June 2008. However, the Federal Magistrate assigned to the case was unable to attend due to a serious family illness. Consequently, the proceedings could not be commenced, and the matter was adjourned until 10 July 2008. Both parties subsequently resolved their dispute and consented to orders. Nevertheless, they both applied for a costs certificate under section 10(2) of the Federal Proceedings (Costs) Act 1981. The court had to determine whether the application for a costs certificate was applicable in this case.

The court considered the relevant legal authorities, including Lindner & Lindner and Redshaw & Redshaw, and noted that the critical words in section 10(2) of the Act were "The person before whom the proceedings are being conducted" and "becomes unable to continue with or to give judgment in the proceedings." The court concluded that the proceedings had not commenced before the Federal Magistrate, as the judge was not present when the matter was listed. Therefore, the application for a costs certificate under section 10(2) should be refused.

The court distinguished the matter from Redshaw & Redshaw on the basis that there was no docket system in place at the time of Redshaw. However, the court did not find this to be a relevant point of distinction. The court found that the subsection applied where a step in the proceedings commenced before a particular judicial officer, and that judicial officer became unable to complete that step, necessitating the matter or that step in the matter being recommenced before another judicial officer.

In this case, the court was available to proceed with the hearing within about five weeks after the original date. Therefore, the court did not consider the matter to fall within section 10(2), and declined to issue the certificates for which application had been made.

The court's final orders were that the applications for a costs certificate under section 10(2) of the Federal Proceedings (Costs) Act 1981 were dismissed.

Orders