Manolis & Manolis (Costs)

[2011] FamCAFC 146

FAMILY COURT OF AUSTRALIA

MANOLIS & MANOLIS (COSTS) [2011] FamCAFC 146

FAMILY LAW - APPEAL – Costs of the appeal – Non compliance with orders facilitating the filing of written submissions as to costs – No order as to costs made – Application dismissed. ­­

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT & CROSS RESPONDENT: Mr Manolis

RESPONDENT & CROSS APPELLANT: Mrs Manolis

FILE NUMBER: BRC 7940 of 2008

APPEAL NUMBER: NA 85 of 2010

DATE DELIVERED: 7 July 2011

PLACE DELIVERED: Brisbane

JUDGMENT OF: Coleman, May & Ainslie-Wallace JJ

HEARING DATE: 1 April 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 17 June 2010

LOWER COURT MNC: [2010] FMCAfam 573

REPRESENTATION

COUNSEL FOR THE APPELLANT & CROSS RESPONDENT: Mr Page SC

SOLICITOR FOR THE APPELLANT & CROSS RESPONDENT: Family Law Solutions

COUNSEL FOR THE RESPONDENT & CROSS APPELLANT: Mr Galloway

SOLICITOR FOR THE RESPONDENT & CROSS APPELLANT: Jones Mitchell Lawyers

Orders

1. There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Manolis & Manolis (Costs) 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 BRISBANE

Appeal Number: NA 85 of 2010
File Number: BRC 7940 of 2008

Mr Manolis

Appellant and Cross Respondent

And

Mrs Manolis

Respondent and Cross Appellant

REASONS FOR JUDGMENT

Introduction

1. On 13 May 2011 the court allowed both the appeal and the cross appeal from the orders of Federal Magistrate Demack made 17 June 2010.

2. In their respective notice of appeal and notice of cross appeal, both the husband and the wife sought that the other party pay their costs of and incidental to the appeal.

3. At the conclusion of the hearing of the appeal and the cross appeal both the husband and the wife were asked to make submissions regarding the costs of the appeal. It was submitted on behalf of both parties, that given the circumstances of the case, it was difficult to make submissions as to costs before the judgment was received.

4. Under the section characterised as “Costs” we said:

   80.It can be seen that our conclusion is that the appeal be allowed and the discretion be re-exercised. We have reached the same percentage division as the Federal Magistrate, however we have identified an error of law as asserted in the cross appeal. Each party would thus be entitled to a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). It is appropriate however in the circumstances of this case that each party be permitted to file written submissions should they wish to do so including any application for a certificate.

5. Consequently, an order was made allowing for the filing of written submissions as to costs. That order, order 4 provided:

   The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:

   (a)      On behalf of the husband within 21 days of the date hereof;

   (b)      On behalf of the wife within 21 days thereafter;

   (c)      On behalf of the husband in reply within seven days thereafter, and;

   (d)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

6. The husband’s written submissions were due to be filed on 3 June 2011. No submissions were filed on or before this date. We are informed that the Registry telephoned the solicitors acting for the husband on both 6 June 2011 and 7 June 2011 to enquire whether the husband intended to file submissions as to costs. No response was received.

7. By letter dated 15 June 2011 the solicitors for the wife wrote to the Registry which said that the wife “does not wish to proceed with an Application for costs”.

8. Given that the husband has not filed written submissions in relation to costs, and given that the wife does not wish to file costs submissions no order for costs will be made.

9. The appeal proceedings are now at an end.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Ainslie-Wallace JJ) delivered on 7 July 2011.

Associate: 

Date:  7 July 2011