MINCHIN & MCDONALD - [2012] FMCAfam 1328

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 6^th 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 3^rd November 2010 when the parties’…

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 MINCHIN & MCDONALD

Details

AGLC: MINCHIN & MCDONALD [2012] FMCAfam 1328
Case: [2012] FMCAfam 1328
Decision Date: 12 December 2012

CaseChat Overview and Summary

The case of Minchin and McDonald involved a dispute that was brought before the Federal Court of Australia. The Applicant, Minchin, sought a costs certificate under the Federal Proceedings (Costs) Act 1981 in relation to a hearing that was discontinued on 18 June 2010. The Respondent, McDonald, also sought a similar costs certificate for the same hearing. The court had to determine the validity and appropriateness of granting the costs certificates to both parties under the specified provisions of the Act.

The central legal issue before the court was whether the provisions of the Federal Proceedings (Costs) Act 1981 justified the granting of costs certificates to both parties for the discontinued hearing. This involved an interpretation of the Act and an assessment of the circumstances that led to the hearing being discontinued. The court had to balance the rights of both parties to seek costs against the principles of fairness and justice, particularly given that the hearing was discontinued.

The court found that the provisions of sub-section 10(3) of the Federal Proceedings (Costs) Act 1981 did indeed allow for the granting of costs certificates in the circumstances presented. The court considered the nature of the discontinued hearing and the procedural context, concluding that both parties were entitled to a costs certificate. The reasoning was based on the necessity for a fair outcome that recognised the efforts and resources expended by both parties in relation to the hearing. The court dismissed all other applications under the Act, focusing solely on the specific circumstances of the discontinued hearing.

In summary, the court granted the costs certificates to both Minchin and McDonald for the discontinued hearing on 18 June 2010. All other applications under the Federal Proceedings (Costs) Act 1981 were dismissed, leaving the specific relief sought in relation to the discontinued hearing as the sole focus of the court's decision.

Orders

Orders of the court

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.

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.