Madin & Palis (Costs)

Case [2016] FamCAFC 25

FAMILY COURT OF AUSTRALIA

MADIN  & PALIS (COSTS) [2016] FamCAFC 25

FAMILY LAW – APPEAL – COSTS – where the Full Court ordered that each party bear their own costs of the appeal – where the Full Court found that an offer for settlement relied on by the applicant for costs could not be relied on because it impliedly purported to confer jurisdiction on the Court – where although the respondent was ultimately wholly unsuccessful the main appeal raised a novel issue to which there was no existing authority – where the Full Court reiterated that orders for indemnity costs would only be made in the most extreme cases, because the primary rule in this jurisdiction is that each party bear their own costs – no orders for costs.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
APPELLANT: Mr Madin
RESPONDENT: Ms Palis
FILE NUMBER: BRC 130 of 2013
APPEAL NUMBERS: NA
NA 		52
66 		of
of 		2014
2014
DATE DELIVERED: 24 February 2016
PLACE DELIVERED: Canberra
JUDGMENT OF: Finn, May & Strickland JJ
HEARING DATE: By way of written submissions
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 28 January 2014
23 May 2014
LOWER COURT MNC: [2014] FCCA 118
[2014] FCCA 1029

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Bertone
SOLICITOR FOR THE APPELLANT: Leishman Legal
COUNSEL FOR THE RESPONDENT: Ms McLennan
SOLICITOR FOR THE RESPONDENT: Allan R De Brenni & Company

Orders

  1. There be no order for costs in relation to the appeals against the orders of the Federal Circuit Court of Australia made on 28 January 2014 and 23 May 2014.

  2. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 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 respondent in respect of the costs incurred by the respondent in relation to the appeals.

  3. There be liberty to the appellant to apply to the Full Court of the Family Court of Australia by letter to the Northern Region Appeals Registrar for a certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Madin & Palis (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 52 of 2014; NA 66 of 2014
File Number: BRC 130 of 2013

Mr Madin 

Appellant

And

Ms Palis

Respondent

REASONS FOR JUDGMENT

  1. On 28 January 2014 Judge Howard of the Federal Circuit Court of Australia dismissed an initiating application by Mr Madin (“the appellant”) in which he sought declarations under s 90RD of the Family Law Act 1975 (Cth)


    (“the Family Law Act”) that a de facto relationship existed (in the


    period…

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Madin & Palis (Costs) [2016] FamCAFC 25
Case
[2016] FamCAFC 25
Decision Date

CaseChat Overview and Summary

Madin & Palis involved an appeal concerning the costs incurred by both parties in relation to decisions made by the Federal Circuit Court of Australia. The appeal centred around the allocation of costs between the parties, specifically in light of a settlement offer that the applicant attempted to use as a basis for their costs claim. The Full Court was tasked with determining whether the offer could be considered and if the applicant was entitled to costs based on the respondent's failure to accept the offer. The court also needed to address the broader issue of whether the appeal raised a novel issue of law, and if so, whether this justified any costs order.

The legal issues before the court were whether the offer for settlement could be used to determine costs and if the appeal raised a novel issue of law that would justify a costs order. The court found that the offer for settlement could not be relied on because it impliedly purported to confer jurisdiction on the court, which was not permissible. Furthermore, the court determined that the main appeal raised a novel issue, but this alone did not warrant an order for costs. The Full Court emphasised that indemnity costs would only be awarded in the most extreme cases, as the primary rule is that each party bears their own costs.

In conclusion, the Full Court found that no order for costs should be made in relation to the appeals against the orders of the Federal Circuit Court of Australia. The court granted the respondent a costs certificate under the Federal Proceedings (Costs) Act 1981, allowing the Attorney-General to authorise a payment to the respondent for costs incurred in the appeals. The appellant was also given liberty to apply for a certificate under section 9 of the same act.

Orders

Orders of the court

1.

There be no order for costs in relation to the appeals against the orders of the Federal Circuit Court of Australia made on 28 January 2014 and 23 May 2014.

2.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 respondent in respect of the costs incurred by the respondent in relation to the appeals.

3.

There be liberty to the appellant to apply to the Full Court of the Family Court of Australia by letter to the Northern Region Appeals Registrar for a certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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