Naidoo and Farmer

[2012] FamCAFC 109

FAMILY COURT OF AUSTRALIA

NAIDOO & FARMER [2012] FamCAFC 109

FAMILY LAW ─ APPEAL ─ PROPERTY SETTLEMENT ─ Where the appeal was, for a variety of reasons, almost certain to have been allowed if it had been agitated to judgment ─ Where parties ought not in those circumstances be obliged to prosecute an appeal to judgment simply to be able to enliven the provisions of the Federal Proceedings (Costs) Act1981 (Cth) ─ By consent appeal allowed ─ Costs certificates issued to the parties for the appeal and the re-hearing.

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

Cramer v Davies (1997) 72 ALJR 146

APPELLANT: Mr Naidoo

RESPONDENT: Ms Farmer

FILE NUMBER: CAC 166 of 2009

APPEAL NUMBER: EA 119 of 2011

DATE DELIVERED: 27 June 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Coleman, May and Murphy JJ

HEARING DATE: 27 June 2012

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 14 September 2011

LOWER COURT MNC: [2011] FMCAfam 975

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Brzostowski SC

SOLICITOR FOR THE APPELLANT: Mazengarb Barralet

COUNSEL FOR THE RESPONDENT: Ms Haughton

SOLICITOR FOR THE RESPONDENT: Ray Swift Moutrage & Associates

Orders

1. That by consent the appeal be allowed.

2. That the orders made by Neville FM on 14 September 2011 and the amended orders of same date be set aside.

3. That the matter be remitted for re-hearing before a federal magistrate other than Neville FM.

4. That the Court grants to the Appellant Husband a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.

5. That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.

6. That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Naidoo & Farmer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 119 of 2011

File Number: CAC 166 of 2009

Mr Naidoo

Appellant

And

Ms Farmer

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

COLEMAN J

1. In my view this is an appeal which was, for a variety of reasons, as it developed during the course of the hearing of oral submissions earlier today, almost certain to have been allowed if it had been agitated to judgment. As Kirby J in Cramer v Davies (1997) 72 ALJR 146 recorded over a decade ago in not dissimilar circumstances, parties ought not in those circumstances be obliged to prosecute an appeal to judgment simply to be able to enliven the provisions of the Federal Proceedings (Costs) Act1981 (Cth). His Honour’s statement has been followed by this Court for at least a decade and in my mind it has application to this appeal.

2. Given the probable outcome of the appeal I would conclude that it is appropriate to issue costs certificates. With respect to the appeal and the          re-trial, I would simply add that had the appeal been agitated to judgment, and been successful, the reasons for the appeal succeeding would not have provided any basis for making a costs order inter partes, which is a pre-requisite to a costs certificate for an appellant. That requirement would, in my view, be met.

3. For my part I would readily agree that the appeal should be allowed, both sets of orders of 14 September 2011 be set aside, the proceedings remitted for             re-hearing by a federal magistrate other than Neville FM, and that each party have a costs certificate with respect to the appeal and the re-trial for those reasons.

may j

1. I agree that it was inevitable that this appeal be allowed for the reasons given already by the presiding judge. It was apparent from the notice of appeal and from the submissions provided to us by the appellant that that would be so. I also agree, in those circumstances, that the appeal should be allowed and that costs certificates for the appeal and for a re-hearing of this matter should be allowed to each party. Likewise, I would make the orders as described by the presiding judge.

murphy j

1. I agree with the orders proposed by Coleman J, and I would also respectfully agree with the reasons expressed by both his Honour and May J. I have nothing to add.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Murphy JJ) delivered on 27 June 2012.

Associate:

Date: 29.06.2012