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 was one in relation to an application for a costs certificate under s.10(3). That was a matter where it seemed his Honour was overlisted. There were insufficient settlements to enable all matters listed to be dealt with on the day. His Honour mentioned the matters that were left and made a decision as to which would proceed and which would not. The matter that did not resulted in the application his Honour dealt with. His Honour held that albeit he had called the matter on for the fairly limited purpose of the legal representatives outlining to his Honour the background of the case so his Honour could assess the relative urgency of the matters before him, he considered that the matter had commenced and thus had been discontinued within the meaning of that term in s.10(3).
As I have said, the application before me is not under that subsection. It is under sub-s.(2).
Mullane J in Redshaw & Redshaw was dealing with an application for a costs certificate that seems to have been based at least in part on s.10(2). That was a case where a matter listed for hearing could not be heard because the judge scheduled to sit in the Newcastle Registry for the relevant week became ill and there was no other judge to replace him or her. In those circumstances, referring to s.10(2), his Honour suggested that the critical words in sub-s.(2) were-
“The person before whom the proceedings are being conducted”
And-
“becomes unable to continue with or to give judgment in the proceedings.” (FLC at 77,600, Fam LR at 496).
His Honour went on and said (Ibid):
“These words of course import a requirement that the hearing must have commenced. This is the plain meaning of the words and indeed it is the intended interpretation adopted by the learned Mr Pesce in his work ‘Costs and Taxations in Family Law (The Law Book Company 1988). That interpretation appears at p. 156 of the book.
If that view is correct (and my view is that it is) then the application under subsec.10(2) should be refused.”
This matter appears to be on all fours with the matter of Redshaw. I became unable to attend to the matter on the day it was listed due to serious illness in the family. There was no other Federal Magistrate available to take the matter and it was adjourned. I cannot readily distinguish the matter from the decision in Redshaw.
Counsel for the husband, as I understand it, sought to do so on the basis of the docket system applying in this Court, and I take judicial note of the fact that no docket system was operating relevantly at the time of Redshaw & Redshaw. I therefore proceed upon the basis that it is an arguable point of distinction. However, I do not accept that it is a relevant point of distinction. The fact that I was not present meant that I could not have commenced the hearing. This seems to be the significant point of the decision in Redshaw & Redshaw leading to the decision that that the matter was not covered by sub-s.(2).
There is another point of course that flows from the wording of the subsection. The subsection provides relevantly:
“The person before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings –“
These are the circumstances in which a certificate may be issued by the Court. The phrase "or otherwise becomes unable to continue with, or to give judgment in, the proceedings" must in my view be read in light of the preceding words. What is contemplated by the subsection, in my view, is proceedings being conducted before a judicial officer. As Mullane J indicated in Redshaw, that connotes a commencement of a step in the proceedings before the particular judicial officer. As I have said, the hearing in my view had not started before me.
In my view the subsection applies where a step in the proceeding commences before a particular judicial officer and that judicial officer becomes unable to complete that step at all or within an acceptable period of time, necessitating the matter or that step in the matter being recommenced before another judicial officer. That in my view is the clear connotation of sub-s.(2). It is consistent with sub-s.(3). It is also consistent with the title before this particular section reference, although of course it is not part of the substantive enactment, "Costs certificates-incomplete proceedings."
I was available to proceed to hear this matter within about five weeks after the date originally fixed. It is in those circumstances also that in my view the matter does not fall within sub-s.(2).
In those circumstances I must decline to issue the certificates for which application has been made.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 25 November 2008