Paul and Paul (Costs)

[2012] FamCAFC 110

FAMILY COURT OF AUSTRALIA

PAUL & PAUL (COSTS) [2012] FamCAFC 110

FAMILY LAW – APPEAL – COSTS CERTIFICATES – Costs of the appeal and rehearing – Where the appeal was allowed in part – Where it was held that the matter ought be remitted for rehearing in relation to one issue – Where no order for costs was sought – Costs certificates granted.

Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT: Mr Paul

RESPONDENT: Mrs Paul

FILE NUMBER: PTW 2735 of 2008

APPEAL NUMBER: WA 10 of 2011

DATE DELIVERED: 27 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: By way of written submissions

JUDGMENT OF: May, Thackray & Crisford JJ

HEARING DATE: 15 November 2011

LOWER COURT JURISDICTION: Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE: 1 April 2011

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Smith

SOLICITOR FOR THE APPELLANT: O'Sullivan Davies

COUNSEL FOR THE RESPONDENT: Mr Berry

SOLICITOR FOR THE RESPONDENT: Dwyer Durack

Orders

1. There be no order as to costs.

2. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 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 appellant in respect of the costs incurred by the appellant in relation to the appeal.

3. The Court grants to the respondent 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 in respect of the costs incurred by the respondent in relation to the appeal.

4. The Court grants to each of the parties 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 of the parties in respect of the costs incurred by the appellant and respondent in relation to the re-hearing of the application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paul & Paul (Costs) 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 PERTH

Appeal Number: WA 10 of 2011
File Number: PTW 2735 of 2008

Mr Paul

Appellant

And

Mrs Paul

Respondent

REASONS FOR JUDGMENT

1. Reasons for judgment in the substantive appeal, which was allowed in part, were delivered by the Full Court on 11 May 2012. No submissions as to costs were made by either party at the hearing of the appeal. At paragraph 112 of the reasons, we indicated our preliminary view towards no order for costs and that orders be made granting costs certificates for both the appeal and the rehearing under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”).

2. In the orders allowing the appeal, the parties were also granted liberty to make an application by way of written submissions in respect of costs, or in respect of costs certificates. The respondent wife filed brief submissions on

   
   

   31 May 2012. The wife seeks an order for costs against the appellant husband in respect of his unsuccessful grounds of appeal, should the husband seek and be successful in obtaining an order against her in respect of his successful grounds of appeal. The wife otherwise seeks a costs certificate for the appeal and for the rehearing pursuant to s 6(1) and s 8(1) respectively of the Act.

3. The appellant filed brief submissions himself on 17 July 2012, seeking a costs certificate for the appeal and confirming he was not seeking an order for costs against the respondent. Further submissions were then filed on 18 July 2012, apparently by the appellant’s solicitor, seeking additionally a costs certificate for the rehearing.

4. We do not need to consider the making of an order for costs in the absence of an application from the parties. We are satisfied however that it was reasonable for an appeal to be brought and that as this Court cannot re-exercise for the reasons we outlined in the substantive reasons for judgment, a rehearing is required. The rehearing will be restricted to a determination of the discrete adult child maintenance issue in which the appellant was successful. In these circumstances we will make no order as to costs and are prepared to grant each party a costs certificate in respect of the appeal and of the rehearing.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Crisford JJ) delivered on 27 July 2012.

Associate: 

Date:  27 July 2012