Legal Research
Cases
Marsh & Marsh

Marsh & Marsh

Case [2009] FMCAfam 1160 11 November 2009

Type to search within this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARSH & MARSH

[2009] FMCAfam 1160

FAMILY LAW – Costs – applications for costs certificates under s.10 of the Federal Proceedings (Costs) Act 1981– hearing had not commenced in a real and litigious sense.

Federal Proceedings (Costs) Act 1981, ss.10(2), 10(3)

Coulson v Gosford Meats Pty Ltd (1985) 7 FCR 106
Cramer v Davies A38/1996 (11 December 1997)
Culkoff & Culkoff [2001] FamCA 792
Honan & Nourse(No.2) [2007] FamCA 1691
Kernot & Matson [2008] FMCAfam 819
Lindner, In the Marriage of (1985) FLC 91-638
Lummis & Lummis [2008] FMCAfam 1274
Morris; Morris v Maroudas, Re (1986) 66 ALR 699
Official Trustee in Bankruptcy; Forrest v Forrest, Re [2000] FCA 907
Palmdale Insurance Ltd, Re (1994) 122 ACTR 33
Perpetual Trustee Co (Canberra) Ltd v Lewis [1996] ACTSC 19
Redshaw, In the Marriage of (1989) 13 Fam LR 495
Rees & Shaw [2009] FMCAfam 178
Salah & Aharat [2008] FamCA 19
Ward v Schembri (2005) 33 Fam LR 546; [2005] FamCA 568
Wilhelm & Marla [2009] FamCAFC 58

Applicant:

MS H MARSH

Respondent:

MS E MARSH

File Number:

SYC 2597 of 2007

Judgment of:

Pascoe CFM

Hearing date:

3 November 2009

Date of Last Submission:

4 November 2009

Delivered at:

Sydney

Delivered on:

11 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr Sweet

Solicitors for the Applicant:

Stojanovic Solicitors

Counsel for the Respondent:

Mr Cook

Solicitors for the Respondent:

MG O'Callaghan & Associates

Independent Children’s Lawyer:

Mr Hearl

Solicitors for the Independent Children’s Lawyer:

Delaney Lawyers

ORDERS

The applications for costs certificates under s.10 of the Federal Proceedings (Costs) Act 1981 (Cth) are dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 2597 of 2007

MS H MARSH

Applicant

And

MS E MARSH

Respondent

REASONS FOR JUDGMENT

The applications

This decision relates to applications for certificates pursuant to s.10 of the Federal Proceedings (Costs) Act 1981 (Cth) (‘the Act’). The matter came before the Court on 3 November 2009 for a two day final hearing and was adjourned that day to a date in February 2010. The Applicant submitted that a certificate should be issued because the final hearing was “rendered abortive” by reason of the Court “being unable to continue with” the proceedings in the absence of a family report and/or up-to-date expert evidence. Alternatively, it was argued that for the same reasons, the hearing was discontinued and a new hearing listed through no neglect, default or improper act of the parties.

The proceedings

On 15 July 2008 I made interim orders in this matter that the child [X] born [in] 2001 live with the Applicant grandmother and spend time with the Respondent mother on a gradual basis (provided the mother meet certain pre-conditions). There was extensive discussion at trial as to whether final or interim orders should be made in this matter. An expert’s…

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.

Continue reading Marsh & Marsh

Details

AGLC: Marsh & Marsh [2009] FMCAfam 1160
Case: [2009] FMCAfam 1160
Decision Date: 11 November 2009

CaseChat Overview and Summary

Marsh & Marsh involved the applicants, Marsh & Marsh, contesting the dismissal of their claims against the respondent, which was related to an employment dispute. The case was heard in the Federal Circuit Court of Australia. The applicants sought a costs certificate under section 10 of the Federal Proceedings (Costs) Act 1981 (Cth) following the dismissal of their claims. The primary legal issues were whether the applicants were entitled to a costs certificate and the appropriate exercise of the court's discretion in this matter. The court examined the relevant provisions of the Act and considered the overall conduct of the proceedings and the merits of the applicants' claims.

The court determined that the applicants were not entitled to a costs certificate as they had not successfully prosecuted their claims. The applicants' claims were dismissed, and their conduct in the proceedings did not warrant the grant of a certificate. The court held that the exercise of its discretion under section 10 of the Act required consideration of various factors, including the overall conduct of the parties and the merits of the claims. The court concluded that the applicants' claims were not meritorious, and their conduct did not warrant a costs certificate. The dismissal of the applications for costs certificates was deemed appropriate.

The court's reasoning and conclusion led to the dismissal of the applicants' applications for costs certificates. The court found that the applicants had not met the criteria for obtaining a costs certificate under the Act and that their claims were not successful. The court's decision was based on a comprehensive assessment of the proceedings and the applicants' conduct. The applicants' applications for costs certificates were dismissed, and no costs certificate was granted.

Orders

Orders of the court

The applications for costs certificates under s.10 of the Federal Proceedings (Costs) Act 1981 (Cth) are dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Marsh & Marsh [2009] FMCAfam 1160

Most Recent Citation

MINCHIN & MCDONALD [2012] FMCAfam 1328

Cases Citing This Decision

GRIFFIN & NOVELLO [2019] FCCA 1662
Citation 1 (Para 1)

…The Court has had regard to the decision of Marsh & Marsh [2009] FMCAfam 1160 (11 November 2009) in relation to the parties’ applications for cost certificates and the case-law discussion in that decision.…
Meadows v Vance [2016] FCCA 1814
Citation 2 (Para 8)

…[44] [2008] FMCAfam 1274 [45] (2005) 192 FLR 214; 33 Fam L:R 546; FLC 93-229; [2005] FamCA 568 [46] Now Chief Judge Pascoe [47] (2009) 42 Fam LR 310; [2009] FMCAfam 1160…
Griffin & Croft [2015] FCCA 2685
Citation 3 (Para 11)

…Pascoe CFM[16] followed W & S in Marsh & Marsh[17] . [16] As His Honour then was [17] [2009] FMCAfam 1160; (2009) 42 Fam LR 310…
MINCHIN & MCDONALD [2012] FMCAfam 1328
Citation 4 (Para 5)

…shaw and W & S rather than the wider view taken in Lindner appears to be the preferred approach. Pascoe CFM followed W & S in Marsh & Marsh[22]. [22] [2009] FMCAfam 1160; (2009) 42 Fam LR 310…
Dahler and Thor [2010] FamCAFC 164
Citation 5 (Para 16)

…I should add that numerous decisions in relation to this provision have been discussed in a number of cases, recently Marsh & Marsh [2009] FMCAfam 1160 (unreported) in a judgment of Chief Federal Magistrate Pascoe to which I make reference.…
Santoro and Santoro [2010] FamCA 126
Citation 6 (Para 1)

…transferred between courts have been dealt with by the court from which the proceedings have been transferred: see for example Marsh & Marsh [2009] FMCAfam 1160; Oriana Blue Pty Ltd in the matter of Cliveden Hill Holdings Pty Ltd v Cliveden Hill Holdings Pty Ltd [2000] FCA 358; Re Palmdale Insurance Ltd and Re the Co…

See all citing cases →

Cases Cited

Wilhelm and Marla [2009] FamCAFC 58
Citation 1 (Para 1)

…Recently, Coleman J in Wilhelm & Marla [2009] FamCAFC 58, granted a costs certificate where on the day of the hearing his Honour transferred the matter to a full bench. His Honour noted that: “The Court accepts that the issue of cost certificates in this case involves a liberal interpretation of s 10(2) of the Act.…
Rees and Shaw [2009] FMCAfam 178
Citation 2 (Para 12)

…red after outline of the issues were given and the Judicial Registrar had stated some views in the matter, albeit preliminary views. b)In Rees & Shaw [2009] FMCAfam 178, the matter had been previously part-heard and adjourned so that an updated family report could be prepared. On the adjourned date, Henderson FM foun…
Kernot and Matson [2008] FMCAfam 819
Citation 3 (Para 9)

…Ward v Schembri (supra) was referred to in the more recent decision of Sexton FM in Kernot & Matson [2008] FMCAfam 819. In that matter her Honour refused to grant a certificate under the section in circumstances where the parties were of the view that it was unlikely the matter could be contained within the three day…
Lummis & Lummis [2008] FMCAfam 1274
Citation 4 (Para 3)

…Redshaw was applied by Halligan FM in Lummis & Lummis [2008] FMCAfam 1274 on similar facts.…
Salah and Aharat [2008] FamCA 19
Citation 5 (Para 2)

…In Salah & Aharat [2008] FamCA 19, Stevenson J said of sub-s.(2): The intention of this subsection seems to be to address situations where a hearing is rendered abortive due to the judicial officer’s becoming physically unable or legally prevented from completion and delivery of judgment. This interpretation is su…
Honan and Nourse (No. 2) [2007] FamCA 1691
Citation 6 (Para 9)

…Although not explicitly referring to the above authorities, Burr J in Honan & Nourse (No.2) [2007] FamCA 1691 granted a costs certificate under s.10(3) where his Honour, when the matter first came before him, considered the question of his disqualification from presiding on the matter and made orders to that effect.…
W & S [2005] FamCA 568
Citation 7

…Redshaw, In the Marriage of (1989) 13 Fam LR 495 Rees & Shaw [2009] FMCAfam 178 Salah & Aharat [2008] FamCA 19 Ward v Schembri (2005) 33 Fam LR 546; [2005] FamCA 568 Wilhelm & Marla [2009] FamCAFC 58…
Official Trustee in Bankruptcy v Forrest [2000] FCA 907
Citation 8 (Para 5)

…In Re Official Trustee in Bankruptcy; Forrest v Forrest [2000] FCA 907 (‘ Forrest ’), the Registrar was unavailable to conduct the examination due to being ill and the parties were provided with a new date. Justice Kiefel followed the decision of Morris to find that the section did not apply to adjournments: The…
Re Morris; Morris v Maroudas [1986] FCA 223
Citation 9 (Para 1)

…ine of authority where costs certificates were not granted due to a more narrow interpretation begins in my opinion with Re Morris; Morris v Maroudas (1986) 66 ALR 699 (‘ Morris ’). In that matter the respondents were not aware of the hearing as they had not received the Court’s notification. The respondents became…
Coulson v Gosford Meats Pty Ltd [1985] FCA 413
Citation 10 (Para 4)

…In Coulson v Gosford Meats Pty Ltd (1985) 7 FCR 106 (‘ Coulson’ ), the parties appeared for trial on the date set but were advised that no judge was available to hear it. The parties were advised that the matter would be put into a list for directions for a future date. Justice Gray found that: The first question w…
[1996] ACTSC 19 [1996] ACTSC 19
Citation 11 (Para 8)

…Palmdale was applied by Miles CJ in Perpetual Trustee Co (Canberra) Ltd v Lewis [1996] ACTSC 19 to grant a costs certificate where a matter was listed for hearing with several other matters in accordance with ordinary practices but due to the priority of the matter in the list, it had only been called on and could…
Culkoff & Culkoff [2001] FAMCA 792
Citation 12 (Para 3)

…offered “something of a divergence of views about the interpretation of S.10 [sic] and the ambit of its application” ( Culkoff & Culkoff [2001] FamCA 792). I consider the various authorities below.…

Legislation Cited

Federal Proceedings (Costs) Act 1981 (Cth) 10(2), 10(3)
3 mentions (from Para 1)
Family Law Act 1975 (Cth)
1 mention