MINCHIN & MCDONALD
[2012] FMCAfam 1328
•12 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINCHIN & MCDONALD | [2012] FMCAfam 1328 |
| FAMILY LAW – Costs – costs certificate – application for costs certificate – where hearing could not proceed due to counsel having to seek leave to withdraw – no fault of the parties – whether proceedings “discontinued” – where counsel withdrew due to having accepted a judicial appointment – where hearing had commenced on two separate occasions – where hearing had not been discontinued on two separate occasions – purpose of the Federal Proceedings (Costs) Act 1981 (Cth) not to grant costs to party who was prevented from attending court due to a requirement to attend other court proceedings. |
| Family Law Act 1975 (Cth), s.117 Federal Proceedings (Costs) Act 1981(Cth) ss.4, 10, 13 Federal Magistrates Court Rules 2001 r.17.02 |
| Kernot & Matson [2008] FMCAfam 819 Kudelka and Kudelka (1986) 10 Fam LR 762; FLC 91-719 Lindner and Lindner (1985) FLC 91-638 Lummis & Lummis [2008] FMCAfam 1274 Marsh & Marsh [2009] FMCAfam 1160; (2009) 42 Fam LR 310 Minchin & McDonald [2011] FMCAfam 681 Re Official Trustee in Bankruptcy; Forest v Forest [2000] FCA 907 Redshaw and Redshaw (1989) 13 Fam LR 495; FLC 92-053 In the Marriage of Tyson (No 2) (1993) 16 Fam LR 795; FLC 92-401 W & S [2005] FamCA 568; (2005) 33 Fam LR 546; FLC 93-229 |
| Applicant: | MS MINCHIN |
| Respondent: | MR MCDONALD |
| File Number: | WOC 675 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 November 2011 |
| Date of Last Submission: | 21 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor |
ORDERS
The Applicant is granted a costs certificate under the provisions of sub-section 10(3) of the Federal Proceedings (Costs) Act 1981 in respect of the discontinued hearing on 18 June 2010.
The Respondent is granted a costs certificate under the provisions of sub-section 10(3) of the Federal Proceedings (Costs) Act 1981 in respect of the discontinued hearing on 18 June 2010.
All other Applications under the Federal Proceedings (Costs) Act 1981 are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Minchin & McDonald is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 675 of 2009
| MS MINCHIN |
Applicant
And
| MR MCDONALD |
Respondent
REASONS FOR JUDGMENT
Application
By her Application filed on 6th July 2011, the Applicant sought several Orders, some of which have already been determined and are not relevant to the matters which the Court has still to decide. The Applicant seeks an order for costs under the Family Law Act 1975 and an Order for Costs Certificate under the Federal Proceedings (Costs) Act 1981.
The Applicant has made an Application for costs against the Respondent for his failure to attend Court on 3rd November 2010 when the parties’ parenting and property proceedings were listed for final hearing. This application, which is under s.117 of the Family Law Act 1975, depends on its own facts and will be dealt with as a separate question under the provisions of Rule 17.02.
The Applicant has made an Application for a costs certificate under the Federal Proceedings (Costs) Act 1981, claiming that the hearing of the parties’ case could not proceed on 17th and 18th June 2010, due to the fact that counsel for the Applicant was unable to appear, having been offered a judicial appointment the evening before.
The Respondent has filed a Response seeking, in effect, a costs certificate under the Act in respect of the proceedings on:
a)17th June 2010;
b)18th June 2010;
c)3rd November 2010; and
d)14th December 2010.
Background
The Application arises from a lengthy hearing between the parties involving contested parenting and property orders (Minchin & McDonald[1]). The proceedings were listed for final hearing for two days, on 17th and 18th June 2010, but, as it turned out, some 9 hearing days were required.
[1] [2011] FMCAfam 681
The Applicant claims that she should be entitled to a costs certificate in respect of 17th and 18th June 2010, when her counsel was obliged to seek leave to withdraw on the second day, due to her accepting a judicial appointment.
Orders Sought
The Applicant, by her Application in a Case filed on 6th July 2011, sought several Orders, three of which were dealt with on 1st August 2011 and are not relevant to this Application. The Application for an order for costs against the Respondent will also be dealt with separately.
The Applicant also seeks this Order:
5. That all costs associated with the aborted hearing of 17 and 18 June 2010 be paid by the State. The case could not proceed because Barrister Margaret Cleary was appointed a Judge in the Family Court on 18 June 2010.
In his Response, filed on 18th November 2011, the Respondent seeks these Orders:
1. That all costs incurred by (the Respondent) in relation to the aborted hearing of 17 June 2010 be paid by the State.
2. That all costs incurred by (the Respondent) associated with the aborted hearing date of 18 June 2010 be paid by the State.
3. That all costs associated with the aborted set court hearing date of 3 November 2010 be paid by the State.
4. That all costs associated with the aborted, full day, hearing date of 14 December 2010 be paid by the State.
Evidence and Submissions
The Applicant relied on her affidavit filed on 14th September 2011.
The Respondent relied on two affidavits:
a)filed on 7th October 2011; and
b)filed on 18th November 2011.
Neither party gave oral evidence. Each party made submissions.
The Applicant deposed that the final hearing of the parties’ parenting Application was listed for hearing on 17th and 18th June 2010. She attended Court with her solicitor, Mr Davies, and her barrister, Ms Cleary.
In respect of 17th June 2010, the Applicant deposed that:
3. The proceedings were stood down in the court list because an urgent case had taken precedence in the morning.
4. Associate Professor Q was to be available for initial evidence at 2pm on the 17th. Instead, my father was cross examined that afternoon.
5. Proceedings were then adjourned to recommence on 18 June...[2]
[2] Affidavit of Ms Minchin 14.9.2011 at [3]-[5]
The Applicant described the events of 18th June 2010 in this way:
6. On the morning of 18 June, Margaret Cleary had been contacted by the Commonwealth Attorney General and the Chief Judge of the Family Court and she accepted an appointment as a Judge of the Family Court of Australia.
7. Arising from the protocol in that regard which dictates that Ms Cleary be precluded from continuing to appear before any Court following the acceptance of an appointment to be a Judge, the hearing could not continue and then the Court was sought for her to withdraw. This leave was granted.
8. The matter was stood down in the Courts list and then fixed for further hearing on 19, 20 and 21 October.
9. I appointed a new barrister…[3]
[3] Affidavit of Ms Minchin 14.9.2011 at [6]-[9]
The Applicant then described the events of 3rd November 2010. She attended Court with her solicitor and her counsel, Ms Hausman. She stated that the Respondent did not attend Court on 3rd November.
The Applicant deposed:
13.Federal Magistrate Scarlett ordered Mr McDonald’s[4] barrister (David Alexander) to confirm Mr McDonald’s whereabouts, as not even his legal team were aware that Mr McDonald would not be attending Court that day.
14.Mr Alexander confirmed that Mr McDonald was still in Queensland and would not be attending Court that day. Mr McDonald had gone to Queensland to give evidence in a murder trial.
15.Mr Alexander made an application that the hearing be adjourned arising from Mr McDonald’s non-attendance.
16.My barrister opposed that application and gave three alternatives available to the Court for the hearing to continue. The ICL barrister also made a submission as to a further alternative available to the Court.
17.The proceedings were stood down and Federal Magistrate Scarlett directed Mr Alexander to make contact with
[4] The Respondent
Mr McDonald and to provide an explanation for his failure to attend Court.
18.When we returned, Mr Alexander explained that even though Mr McDonald had finished giving evidence in the Supreme Court at Brisbane on Monday 1 November, two days prior, the police were not prepared to make a change to Mr McDonald’s flight arrangements so that he could return to Sydney in time for our hearing.
19. My solicitor checked flight availability and found that both Jetstar and Virgin Blue had available seats on numerous flights from Brisbane to Sydney between the time that Mr McDonald had finished his evidence on Monday afternoon and Wednesday morning. Mr McDonald could have easily returned to Sydney by Monday evening.[5]
[5] Affidavit of Ms Minchin 14.9.2011 at [13]-[19]
The Applicant claims an amount of $29,009.10 for her costs for 17th and 18th June and 3rd November 2010.
In his affidavit of 7th October 2011 the Respondent took issue with a number of the Applicant’s contentions in her affidavit. In particular, he claimed that the proceedings were stood down on 17th June 2010 because the Single Expert’s Report was not available until that morning. The matter was stood down so that the parties could read the Report and discuss it with their legal advisers. He deposed:
By 3pm when the legal parties were ready to proceed only enough time remained for the witness for Ms Minchin, Mr M, to be briefly heard.[6]
[6] Affidavit of Mr McDonald 7.10.2011 at [4]
The Respondent deposed that on the following day, after Ms Cleary of counsel sought leave to withdraw, his counsel requested that costs for both 17th and 18th June be reserved.
In support of his claim that he should receive a costs certificate to cover his costs of 3rd November 2010, the Respondent deposed that he had been subpoenaed to attend as a witness at a murder trial in Queensland and was unable to attend court in Sydney for that reason. He deposed that:
…the Queensland DPP’s trial strategy required my presence until the end of the subpoena until the end of the subpoena on Friday 5th November.[7]
[7] Affidavit of Mr McDonald 7.10.2011 at [15]
The Respondent seeks a costs certificate in respect of a further hearing date on 14th December 2010. He deposed in his affidavit of 18th November 2011:
In relation to the hearing date of December 14 2010. Upon arriving at the Federal Magistrates Court, Sydney I was informed by my assembled legal team that a list of ‘urgent’ matters had been listed before his Honour Scarlett FM to deal with and in deed there were a full 11 matters listed prior to us. Whereupon we were able to present ourselves before his Honour at approximately 1pm that afternoon. Prior to beginning his Honour necessarily informed us that he must rise from the bench to attend on an important prior appointment by 2pm. The matters before the court were to be lengthy and several new affidavits were to be submitted and several witnesses were in attendance. Due to the extreme restrictions on time only minor discussions could be held and mostly administrative and logistical items were discussed in preparation for the next hearing date. We were subsequently adjourned to reconvene at another time without any of the substance of the matter being able to be heard due to the extreme restrictions on his Honour’s time. The legal representatives’ expenses were still to be billed without their services being effectively employed.[8]
[8] Affidavit of Mr McDonald 18.11.2011 at [22]
The Applicant submitted that the Court should grant her a costs certificate in respect of the proceedings on 17th and 18th June 2010. She did not seek the grant of a costs certificate for either 3rd November or 14th December 2010.
The Respondent added a rider to each of the Orders that he sought in his Response which, collectively, should be considered as submissions.
In respect of his claim for costs certificate for the hearing on 17th June 2010, he submitted:
The matter could not proceed as the Single Expert engaged by the ICL Dr Q did not have the report prepared and completed prior to the hearing date and as such the hearing was unable to proceed as previously planned.
In respect of his claim for a costs certificate for the hearing on 18th June 2010, the Respondent submitted:
The hearing could not proceed because the Barrister for the Applicant Ms Minchin, Ms Margaret Cleary accepted an appointment to the bench of the Newcastle family court on the evening of 17 June 2010 and withdrew from the matter.
In respect of his claim for a costs certificate for the hearing on 3rd November 2010, the Respondent submitted:
This Court hearing date was tentatively set down in the prior knowledge that both the respondent and a key witness to the matter…would at this time be interstate under a 2 week subpoena. The date would coincide with the second week of a murder trial in the Queensland Supreme Court and it was hoped that the Respondent and his family would have completed and returned by that time. The Trial date was delayed and did not begin until Monday 1 November 2010 when Jury selection commenced and no return to meet the tentative 3 November 2010 date was viable.
In respect of his claim for a costs certificate for the hearing date of 14th December 2010, the Respondent submitted:
The matter did not and could not get a full day’s hearing as set down. The matter could not be properly heard on this day as 11 ‘urgent’ matters were listed before his Honour Scarlett FM prior to any time being available to bring this matter before his Honour. Further, due to important matters which required his Honour to leave the bench by 2pm on this day and only a 1 hour window of time became available before his Honour and such time was subsequently used for administration and logistical purposes in preparation for the next hearing date.
The Law to be Applied
The Federal Proceedings (Costs) Act 1981 makes provision for the limited reimbursement of costs incurred by a partying certain circumstances the Court can, at its discretion, provide a certificate stating the Court’s opinion that it would be appropriate for the Attorney-General to bear some part of a party’s costs.
The grant of a costs certificate is entirely discretionary. In the decision of In the Marriage of Tyson (No.2)[9] the Full Court of the Family Court held:
The grant or refusal of a costs certificate under the Act is purely discretionary, and the Act itself lays down no guidelines for the exercise of that discretion. Without intending to be exhaustive, matters such as the overall reasonableness or otherwise of the attitude adopted throughout the proceedings by the party applying for the certificate to the relief sought by the other, the financial resources of the applicant, and the likely quantum of that party’s total costs…all appear relevant for consideration by the court in the exercise of that discretion, as too is the fact that the funds to honour such a certificate must come from the public purse.[10]
[9] (1993) 16 Fam LR 795; FLC 92-402
[10] (1993) 16 Fam LR 795 at 796; FLC 92-401 at 80,111 per Nygh, Lindenmayer and Barry JJ
Section 10 of the Act states, relevantly:
(1)This section applies to the High Court, the Federal Court, the Federal Magistrates Act, the Family Court and a court of a Territory.
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(3) Subject to this Act, where:
(a)the hearing of any proceeding in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings,
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(4)The certificate that may be granted under sub-section (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings.
Subsection (3) deals with proceedings that are “discontinued” through no neglect, default or improper act of any party to the proceedings in which a new hearing has been ordered. Whilst litigants spend money preparing for proceedings which are aborted for one reason or another, not due to the fault of either of the parties, the subsection refers specifically to proceedings which are “discontinued and a new hearing is ordered”. There are different views as to how this should be interpreted.
Purdy J took a wide view in the 1985 case Lindner and Lindner[11], where a case was listed for hearing before a judge who was expected to have been appointed to replace a judge who had retired. Because the new judge had not been appointed, the case could not be heard. The parties were given leave to approach the Registrar for a new hearing date. Both parties applied for a certificate under s.10(3) of the Federal Proceedings (Costs) Act 1981.
[11] (1985) FLC 91-638
His Honour stated that two questions arose:
1. Have the present proceedings been discontinued?
2. Has a new hearing been ordered?
His Honour answered these questions by saying:
As to the first, the matter has been specially fixed for today by order of the r and the registrar and the matter has been called on by me. Counsel have announced their appearances and from the bar table have given me sufficient of the facts to enable me to make a decision whether this or the other case has priority…
In the present matter of course I did not call it on for trial I merely called it on for mention. Nevertheless, the second part of the sentence seems to apply as much if the matter is called on for mention as for trial, i.e. ‘it is then subject to the court’s control and directions.’
The enactment is obviously designed to enable litigants to recoup costs through no fault of their own and which would otherwise be thrown away…
Hence, I feel it right to conclude that case has commenced to a state capable of discontinuance when counsel have announced their appearance on a day notified to the parties unequivocally as a date for hearing.
As to the second question set out above, I have already given leave to approach the registrar to fix a new hearing date and in my view this is sufficient to constitute the ordering of a new hearing as required by the section.[12]
[12] (1985) FLC 91-639 at 80,154
A narrower view was taken by Mullane J in Redshaw and Redshaw[13], which was a case where a joint application had been made for a costs certificate under s.10 of the Federal Proceedings (Costs) Act 1981. The circumstances were that the proceedings between the parties had been listed for hearing on 4th and 5th July 1989, but the judge who was to hear the proceedings on those dates became ill on 29th June and as a result was unable to hear the matter on 4th and 5th July. The hearing did not commence on either day because there was no judge available to hear it.
[13] (198( 13 Fam LR 495; FLC 92-053
Mullane J refused the application, which had been brought under the provisions of s.10(2), which relates to circumstances where a judge retires or dies or becomes unable to continue with the proceedings due to a protracted illness. His Honour declined to grant the application on the basis that the hearing had not commenced.
Mullane J also considered the situation under s.10(3) and referred to the decision of Purdy J in Lindner and Lindner[14]. His Honour distinguished the decision in Lindner on the facts, noting that in the case before him:
…there was no appearance on the day fixed for the hearing. There was no judge to appear before. There is nothing which might constitute a commencement of the hearing in terms of the dicta in Lindner…[15]
[14] supra
[15] (1989) 13 Fam LR 495 at 497; FLC 92-053 at 77,601
Halligan FM specifically followed Redshaw and Redshaw in Lummis & Lummis[16]
[16] [2008] FMCAfam 1274
In W & S[17], Guest J considered an application for a costs certificate under s.10(3) of the Act in circumstances where a hearing could not proceed due to the absence of a party, had not received notice of the date due to an error in the Court Registry.
[17] [2005] FamCA 568; (2005) 33 Fam LR 546; FLC 93-229
Guest J declined followed the reasoning of Mullane J in Redshaw and Redshaw[18] and declined to follow the reasoning of Purdy J in Lindner and Lindner. His Honour said:
In my view, and with due respect to what Purdy J had to say in Lindner, a hearing cannot be said to have commenced in circumstances that merely addressed the issue of priority. The mere announcement by counsel of their appearances on the day notified for trial is insufficient to conclude that, for the purpose of s. 10(3) of the Act, the proceedings had commenced in the sense intended by statute.[19]
[18] supra
[19] (2005) 33 Fam LR 546 at 553 [27]; FLC 93-229 at 79,775 [27]
His Honour went on to say at [31]:
The provision of a certificate pursuant to the Act is a benefit provided by the statute, but on conditions and in circumstances whereby a hearing has been ‘discontinued’. It is plain that, for such an event to occur, it must have been commenced, in my view, in a real and litigious sense, and not just by way of mention by reason of a prior supervening event or discussion arising from judicial availability. I agree with Kiefel J[20] that the word ‘discontinuance’ does indeed have a ‘well established meaning’, namely that it ‘conveys something having commenced and then ceasing prior to its conclusion’.[21]
[20] See Re Official Trustee in Bankruptcy; Forest v Forest [2000] FCA 907
[21] (2005) 33 Fam LR 546 at 554 [31]; FLC 93-229 at 79,776 [31]
The approach taken in Redshaw 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
Similarly, Pascoe CFM held in Marsh that where a proceeding was adjourned because of a case management decision by the Court be4casue of a case management decision, s.10 of the Act does not apply (see also Kernot & Matson[23] per Sexton FM).
[23] [2008] FMCAfam 819
If the Court does exercise its discretion to grant a costs certificate to a party, s.4 of the Act provides that costs are ascertained as if they were costs as between party and party.
An appeal does not lie from a refusal of a court to grant a costs certificate (Federal Proceedings (Costs) Act 1981, s.13).
Consideration
The Applicant seeks a costs certificate in respect of the hearing dates of 17th and 18th June 2010.
The Respondent seeks a costs certificate in respect of the following:
a)17th June 2010;
b)18th June 2010;
c)3rd November 2010; and
d)14th December 2010.
The hearing dates will be considered separately.
The Hearing on 17 June 2010
The Applicant claims that the proceedings were stood down in the Court list because an urgent case had been given precedence during the morning.
The Respondent, by contrast, refers to the hearing as having been “aborted” because the Single Expert’s Report did not become available prior to the hearing date, and only became available at 11:30am that day. This required the matter to be stood down to enable the parties to read the report and discuss it with their legal representatives.
The Applicant and the Respondent agree that the Applicant’s father gave oral evidence during the afternoon.
The Court records show that there were five matters for mention before the Court on 17th June 2010 as well as the substantive matter between the parties, which was listed for final hearing. The parties’ counsel announced their appearances and, after a brief discussion, the Single Expert’s Report was released. The matter was stood down for further mention at 12:55pm.
The matter came back before the Court at 2:30pm. The Applicant’s father, who was a witness in her case, was called to the witness box. He was then cross-examined for the rest of the afternoon by the Respondent’s counsel, Mr Alexander.
The hearing was not aborted on 17th June as the Respondent submits. It was not discontinued. The fact that the Court did not hear evidence until the afternoon is of no significance. The hearing had “commenced, in a real and litigious sense”[24]. There is no basis for a costs certificate to be granted under the provisions of s.10(3) of the Act.
[24] Ward v Schembri (supra) at [31]
At the conclusion of the evidence of the Applicant’s Father on 17th June, the hearing was adjourned to the next day, which was the second day that had been allocated for the hearing.
The Hearing on 18 June 2010
The parties and their legal advisers attended Court the following morning. On that morning, the Applicant’s counsel, Ms Cleary, sought leave to withdraw from the proceeding. She told the Court that the previous afternoon or evening she had been offered and had accepted a judicial appointment. Hence, it was incumbent upon her to play no further part in the litigation.
The matter was stood down for a short time and some interim consent orders were prepared. The Court then adjourned the proceedings for hearing on 19th, 20th and 21st October 2010.
It is clear that the hearing on 18th June was a hearing that had commenced, as it had been adjourned part-heard from the day before. A new hearing was ordered to commence on 19th October.
It is equally clear that the hearing on 18th June was discontinued because the Applicant’s counsel was obliged to withdraw for a proper reason.
Further, the discontinuance and the new hearing were not in any way attributable to the neglect, default or improper act of any party to the proceedings.
Thus, in my view, a ground has been established to grant a costs certificate under s.10(3) the Act to both the Applicant and the Respondent.
Accordingly, a costs certificate will issue to each party stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorize a payment under the Federal Proceedings (Costs) Act 1981 to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred in relation to the proceedings.
The Hearing on 3 November 2010
It is only the Respondent who seeks a costs certificate in respect of the proceedings on 3rd November 2010, when the adjourned hearing did not proceed.
The Applicant seeks an order for costs against the Respondent, claiming that the hearing did not proceed due to the Respondent’s failure to attend Court. As mentioned in paragraph [2] above, this is a matter that will be decided separately. The application against the Respondent is to be decided according to s.117 of the Family Law Act.
The Respondent seeks a costs certificate because he was subpoenaed to appear for the prosecution in a murder trial in the Supreme Court of Queensland which was scheduled to run for two weeks. He claimed that the trial was delayed and did not commence until 1st November 2010. He claims that he was unable to return to Sydney in order to attend Court on 3rd November 2010.
The Respondent’s application contained in his Response is misconceived. Section 10 of the Federal Proceedings (Costs) Act is not intended to compensate a party for his inability to attend Court, even if it is, as he claims, due to the fact that he was under a subpoena to attend a hearing in another Court. As Asche J held in Kudelka and Kudelka[25] at 763:
…the object of the legislation seems clearly to provide for some amelioration of costs where a party (be he a respondent or an appellant) has suffered loss in costs through an error which ‘may ordinarily be attributed to a fault in the administration of justice rather than of the parties’.[26]
[25] (1986) 10 Fam LR 762; FLC 91-719
[26] (1986) 10 Fam LR 762 at 763; FLC 91-719 at 75,222
If, by his application, the Respondent is seeking an order that the Applicant should be granted a costs certificate on that basis, that application is also misconceived. The Respondent has no standing to make such an application on behalf of the Applicant.
The Court declines to grant a costs certificate under s.10 of the Act to the Respondent in respect of the hearing set down for 3rd November 2010.
The Hearing on 14 December 2010
The Respondent seeks an order that a costs certificate should be granted to him for the hearing on 14th December 2010, which he describes in his Response as an “aborted, full day, hearing date”. He submits that the matter could not be “properly heard” on that day as 11 ‘urgent’ matters were listed before the Court. He submits that “only a 1 hour window of time became available before his Honour and such time was subsequently used for administration and logistical purposes in preparation for the next hearing date”.
The Respondent’s submission does not accord with the Court Records. There were a number of twelve matters before the Court for mention on that date, but that, sadly, is not unusual in the family law jurisdiction of this Court in the second week in December.
However, it is clear that on that day counsel for the Applicant and the Independent Children’s Lawyer made submissions to the Court relating to proposed interim orders and, more significantly, oral evidence was taken from one Ms M, a psychologist.
In no way can it be said that the hearing on 14th December 2010 was discontinued. The hearing was not discontinued; it proceeded. Consequently, the requirement under paragraph 10(3)(a) has not been met.
Thus, the Court declines to grant a certificate under s.10 of the Act to the Respondent in respect of the hearing set down for 14th December 2010.
Conclusions
The Applicant and the Respondent have established a ground for the Court to exercise its discretion to grant a costs certificate under sub-section 10(3) of the Federal Proceedings (Costs) Act 1981in respect of the discontinued hearing on 18th June 2010.
All other applications under the Act will be dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 4 December 2012
Schedule
A.Costs Certificate granted to the Applicant.
B.Costs Certificate granted to the Respondent
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