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Melnik v Melnik

Melnik v Melnik

Case [2005] FCAFC 207 23 September 2005

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FEDERAL COURT OF AUSTRALIA
Melnik v Melnik [2005] FCAFC 207
COSTS CERTIFICATE - issue of costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) where a Federal appeal succeeds on a question of law
Federal Proceedings (Costs) Act 1981 (Cth) s 6(1), 6(3)
Bankruptcy Act 1966 (Cth) ss 58(3)(b), 60(1)(b)
Family Law Act 1975 (Cth) s 112AD
Bullock v Federated Furnishing Trades Society of Australasia (No. 2) (1985) 58 ALR 373 referred to
Richards v Faulls Pty Ltd [1971] WAR 129 cited
JOSEPH MORRIS MELNIK v AMANDA CATHERINE MELNIK
No QUD 209 of 2004
SPENDER and FINN JJ
23 SEPTEMBER 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 209 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

JOSEPH MORRIS MELNIK
APPLICANT

AND:

AMANDA CATHERINE MELNIK
RESPONDENT

JUDGES:

SPENDER and FINN JJ

DATE OF ORDER:

23 SEPTEMBER 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS:
1.The Court grants to Amanda Catherine Melnik, the respondent in Federal appeal QUD 209 of 2004, a costs certificate in respect of that appeal, the certificate to state that, in the opinion of the Federal Court of Australia, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of:
(a) the costs incurred by the respondent in relation to the appeal, and
(b) any costs incurred by the appellant in relation to that appeal that have been, or are required to be, paid by the respondent to the appellant in that appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 209 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

JOSEPH MORRIS MELNIK
APPLICANT

AND:

AMANDA CATHERINE MELNIK
RESPONDENT

JUDGES:

SPENDER and FINN JJ

DATE:

23 SEPTEMBER 2005

PLACE:

BRISBANE

REASONS FOR JUDGMENT

On 16 August 2005, a Full Court of the Federal Court (Spender, Hill and Finn JJ) allowed an appeal from orders made by Federal Magistrate Baumann on 3 February 2004, and set aside those orders. The Court further ordered:
‘3.Any legal process which would or may have the effect or purpose of committing the appellant to imprisonment under the order of Carmody J in the Family Court of Australia of 21 October 2004, including the issue of any warrant of commitment thereunder, be stayed.’
The Court further declared that:
‘1.It was not competent for the respondent to commence contravention proceedings in the Family Court of Australia on 26 August 2003 in respect of the non-payment of $79,000 ordered to be paid by Jerrard J on 23 August 2000, nor to take the further steps taken by her in those proceedings.’
When judgment was pronounced on 16 August 2005, the Court initially ordered that:
‘4.The respondent pay the appellant’s costs of this application, to be taxed if not agreed.’
The solicitor for the…

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 Melnik v Melnik

Details

AGLC: Melnik v Melnik [2005] FCAFC 207
Case: [2005] FCAFC 207
Decision Date: 23 SEPTEMBER 2005

CaseChat Overview and Summary

In the case of Melnik v Melnik, the Federal Court of Australia was called upon to determine whether a costs certificate should be granted to the respondent, Amanda Catherine Melnik, following a successful appeal on a question of law. The appeal, which was allowed by a Full Court of the Federal Court on 16 August 2005, related to orders made by Federal Magistrate Baumann on 3 February 2004, concerning contravention proceedings initiated by Amanda in the Family Court of Australia regarding non-payment of a sum of $79,000. The Full Court set aside the orders and declared that it was not competent for Amanda to commence those proceedings.

The legal issues before the Court were whether a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) could be granted to Amanda, and if so, under what circumstances. The Court noted that the appeal had indeed succeeded on a question of law, which qualified Amanda for a costs certificate under s 6(1) of the Act. The Court exercised its discretion to grant the certificate, considering the wide-reaching significance of the issues determined in the appeal and their importance beyond the private interests of the parties.

The Court found that the appeal involved the proper interpretation of sections 58(3)(b) and 60(1)(b) of the Bankruptcy Act 1966 (Cth), in the context of bringing contravention proceedings after a person had been made bankrupt. Given the public interest implications of the appeal's outcome, the Court deemed it appropriate to grant the costs certificate. Consequently, the Court ordered that Amanda Catherine Melnik be granted a costs certificate in respect of the appeal, stating that it would be appropriate for the Attorney-General to authorize a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to her for the costs incurred by her in relation to the appeal and any costs incurred by the appellant that have been or are required to be paid by her to the appellant.

Orders