Perdicari & Perdicari
[2019] FamCAFC 147
•2 September 2019
FAMILY COURT OF AUSTRALIA
| PERDICARI & PERDICARI | [2019] FamCAFC 147 |
| FAMILY LAW – APPEAL – INJUNCTION – Appeal against interim orders – Leave to appeal – Exclusive occupation –Where the primary judge correctly determined the balance of hardship and the balance of convenience – Application to adduce further evidence – Had this evidence been adduced at first instance, the consideration of hardship in relation to the appellant’s ability to re-house would have been different – By reason of further evidence error demonstrated – Leave to appeal granted – Appeal allowed – Discretion re-exercised. FAMILY LAW – APPEAL – COSTS – Where an order for costs would not be appropriate – Costs certificates to issue for the appeal. |
| Family Law Act 1975 (Cth) ss 93A, 94AAA, s 114(1)(b) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 |
| Akston & Boyle [2010] FamCAFC 56 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v the King (1936) 55 CLR 499; [1936] HCA 40 In the Marriage of Sieling (1979) 24 ALR 357 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 |
| APPELLANT: | Mr Perdicari |
| RESPONDENT: | Ms Perdicari |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 8041 | of | 2017 |
| APPEAL NUMBER: | EA | 21 | of | 2019 |
| DATE DELIVERED: | 2 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 14 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 February 2019 |
| LOWER COURT MNC: | [2019] FCCA 832 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr G Kenny |
| SOLICITOR FOR THE RESPONDENT: | Bell Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the appellant have leave to adduce further evidence in the application for leave to appeal and the appeal, being Annexure ‘H’ to the affidavit of Mr Perdicari filed on 28 May 2019.
Other than as provided for in Order 1 above, the application to adduce further evidence be dismissed.
The appellant be granted leave to appeal Orders 1-6 (inclusive) dated 20 February 2019.
The appeal be allowed.
Orders 1, 2, 3, 4, 5 and 6 of 20 February 2019 be set aside.
Pending further order, within seven (7) days of the date of these orders (or within such further period as the lending authority requires), the parties shall do all acts and sign all documents necessary to cause a drawdown of $50,000 from funds held in the D Bank home loan account, account number: …01, and the parties shall thereafter cause that $50,000 to be deposited in an account held by the appellant.
Pending further order, that any additional interest charged against the D Bank home loan account referred to in the above order (Order 6), in relation to the abovementioned drawdown, be met by the respondent.
Pending further order, no later than twenty one (21) days from the date upon which the appellant receives the funds referred to in Order 6 above, he shall vacate the property at Suburb C (“Property A”) and remain away therefrom.
Pending further order, commencing twenty two (22) days from the date upon which the appellant receives the funds referred to in Order 6 above, the respondent shall have exclusive occupation of Property A.
Pending further order, upon the respondent taking occupation, she shall be responsible for paying the mortgage, statutory rates and charges, utilities, house and contents insurance and outgoings including water rates, council rates and the like in relation to repairs and improvements and any other sums due or accruing in respect of Property A.
Pending further order, the respondent shall be responsible for maintaining and keeping the property in a clean and presentable condition.
Pending further order, the respondent shall not remove any of the household contents unless otherwise agreed between the parties.
There be no order as to costs.
The Court grants to the appellant 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 in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 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 respondent in respect of the costs incurred by the respondent in relation to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Perdicari & Perdicari has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 21 of 2019
File Number: SYC 8041 of 2017
| Mr Perdicari |
Appellant
And
| Ms Perdicari |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 1 March 2019, Mr Perdicari (“the appellant”) seeks leave to appeal and, assuming leave is given, appeals against various interlocutory orders made by a judge of the Federal Circuit Court of Australia on 20 February 2019. The orders require the appellant to vacate what had been the family home at Suburb C (“Property A”) no later than 28 February 2019 (Order 1) and restrain him from re-entering (Order 6). Thereafter, Ms Perdicari (“the respondent”) is to have exclusive occupation of that property (Order 2), upon condition that she pay its outgoings (Order 3) and it is maintained in a clean and presentable condition (Order 4). The respondent seeks to uphold the orders. The Independent Children’s Lawyer filed a submitting notice and otherwise did not participate in the appeal.
On application by the appellant to the primary judge, the orders were stayed pending determination of his appeal.
In accordance with s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), the Chief Justice directed that the appeal be determined by a single judge. The application for leave to appeal and any consequential appeal were listed for hearing simultaneously. In order to secure leave to appeal, the appellant needs to establish that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by this Court and that substantial injustice would result if leave was refused (Medlow & Medlow (2016) FLC 93-692).
At the commencement of the appeal hearing, the appellant sought to adduce further evidence in the appeal, comprising an affidavit he swore on 27 May 2019 which was filed on 28 May 2019. For reasons which are not entirely clear, the appellant was unaware that his application to adduce further evidence and the supporting affidavit had not been accepted for filing until two days prior to the hearing. Although this provides a satisfactory explanation for the appellant’s failure to serve the affidavit by 29 May 2019 (as ordered on 15 May 2019), it does not explain his failure to serve the affidavit at all. The point being, that at the commencement of the hearing the appellant sought to adduce 140 pages of affidavit evidence (including annexures) which had not been served on the respondent.
For the respondent, it was argued that to permit the appellant to rely on his affidavit would be procedurally unfair to the respondent and further, be inconsistent with s 93A(2) of the Act, the approach to which is set out in CDJ v VAJ (1998) 197 CLR 172.
Although the appellant did not abandon his attempt to rely on his affidavit in its entirety, he emphasised the importance of correspondence between himself and the respondent’s solicitor concerning the family home (Annexure G), a medical report by Dr S concerning the appellant’s father, and email correspondence between the appellant and the insurance company, which also concerned the family home. The submission that the further evidence was controversial and, if admitted, would impermissibly blur the distinction between original and appellate jurisdiction, was accepted, and only the report of Dr S was received as further evidence. So that it is clear, the medical report post-dated the trial, in relation to which it is accepted, the appellant as a litigant in person, did not understand the significance of presenting evidence of that type in the Court below. Considered in this light, a generous approach was taken to the failure of the appellant to adduce similar evidence before the primary judge.
Background
So as to provide context to the appeal, a brief factual background is required. The parties married in 2004 and have three children; a son who was born in 2006 and two daughters, born in 2008 and 2013. At some point difficulties arose in the parties’ relationship and, on 6 May 2017 they separated. At separation, the respondent and the parties’ children moved into the appellant’s parent’s home. The appellant remained in the family home.
Some months later the respondent and the parties’ children moved into the respondent’s sister’s home where they remained until the respondent and the parties’ children moved into a two bedroom rented apartment.
Although the appellant wishes it were otherwise, he has not spent time with the parties’ children since July 2017.
Proceedings in relation to parenting arrangements for the children and property settlement were commenced in the Federal Circuit Court. An Independent Children’s Lawyer (“ICL”) was appointed to represent the children and a report was commissioned from a consultant psychiatrist.
On 11 May 2018, the parties entered into consent orders for the sale of the family home. Again, by consent, it was ordered that, pending settlement of the sale of the property, the appellant would be solely responsible for paying the mortgage, rates, utilities and other nominated outgoings in relation to that property (Order 7). He was also required to maintain the property in a clean and presentable condition (Order 8). Upon settlement of the sale, each of the parties was to receive $50,000 (Order 9).
The family home was listed for sale in August 2018. However, in November 2018, before the property was sold, it was extensively damaged by fire.
On 13 November 2018 the respondent filed an application seeking that the appellant vacate the family home and she have sole occupation. The application was opposed and in response, on 19 February 2019, the appellant applied for orders for the sale of the property and an equal division of the net proceeds of sale.
The primary judge heard and determined the competing applications on 20 February 2019.
On the application of the appellant, a stay of the orders was granted on 2 April 2019.
The reasons for judgment
It was common ground that the parties cannot live together and thus it was not possible or convenient for them to share occupation of the family home. It follows that the issue for the primary judge was which of them should live there to the exclusion of the other.
The application for exclusive occupation engaged s 114(1)(b) of the Act, in relation to which the primary judge correctly focused on where the balance of convenience lay and the balance of hardship (In the Marriage of Sieling (1979) 24 ALR 357). The primary judge was satisfied that the children’s living arrangements would be more stable if they were able to live with the respondent, in what had been the family home, rather than being subjected to “the vagaries of rental accommodation” [11]; and that the respondent would meet the outgoings for the property [22]. Although the mortgage had been pre-paid, the primary judge was concerned that while the appellant had been in sole occupation “no further mortgage payments had been paid now for a considerable period of time” and the council rates were in arrears of about $1,000 [22]. Given that the family home was the parties’ most valuable asset, these were weighty considerations [25].
The primary judge understood that the repairs required following the house fire had not been completed and that the appellant argued that for him to receive anything less than an equal share of the sale proceeds would be unfair. However, the question of the final distribution of the proceeds of sale would be addressed at a final hearing.
Her Honour was concerned about the consequences for the appellant, who was unemployed, in being required to vacate the property against his wishes. This was a “serious” consideration and it weighed heavily against the respondent’s claim for exclusive occupation [18]. However, based on the appellant’s ongoing contact with his parents and the extent to which they assisted the parties in the past, albeit inferentially, the submission of the respondent that the appellant could live with his parents and thus hardship to him would be ameliorated was accepted. That is, until the appellant was able to find another job, which, based on his history of employment was considered likely.
The application was determined against the background of the respondent’s desire to retain the family home whereas the appellant wanted it sold.
Ultimately the balance of convenience lay with the respondent and orders were made accordingly.
The grounds of appeal
It needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v the King (1936) 55 CLR 499 (“House”). A different view by an appellate court only as to matters of weight by no means justifies a reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513).
Considered in isolation, the grounds of appeal lacked the necessary particularity to establish House error. However, when the Notice of Appeal was read in conjunction with the appellant’s Summary of Argument, it was possible to clarify the gravamen of the appeal and immediately apparent that the grounds of appeal were repetitive and to a considerable degree misstated the trial reasons. Furthermore, there were numerous challenges made to submissions and evidence given at trial but which had not been adopted by the primary judge and thus did not form part of the reasoning process.
It is appropriate that no challenge was made to the legal principles by which the application was determined.
Before the grounds of appeal are discussed it is important to remember that this is an appeal against a judgment given ex tempore, immediately following the hearing. Reference to the trial transcript demonstrates that the primary judge had a sound command of the facts in issue and the arguments advanced by each of the parties. Appellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked. Such an approach is appropriate in this appeal.
Furthermore, I agree with Boland J in Akston & Boyle [2010] FamCAFC 56 at 28 that:
Recognition that an appellate court should not over critically scrutinise an ex tempore judgment given shortly after a hearing in the same manner as a reserved judgment delivered after some period is based on commonsense and practicality. As Mason P observed in Maviglia v Maviglia [1999] NSWCA 188 “[a]n ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them.” These comments are apposite to the caseload of Federal Magistrates in the Federal Magistrates Court (see also Porter v Byrne (2009) 40 Fam LR 644).
Failure to consider a material consideration – Ground 1
Under the rubric of Ground 1, the appellant identified four matters which he said required but did not receive consideration.
The first matter concerns the appellant’s evidence that the respondent falsified allegations of domestic violence for financial gain and to secure exclusive occupation of the family home. Both parties gave evidence of family violence, which was contentious in most respects and, given that the proceedings were concluded without cross-examination, about which findings could not be made. The appellant did not explain how, given the circumscribed nature of the hearing, the primary judge could permissibly have made the findings for which he contends. Even assuming that contentious findings were available (they were not), none of the matters identified at paragraphs 1.1 – 1.6 of the appellant’s Summary of Argument were relevant to the question of which of the parties should have exclusive occupation and no criticism should be made of the judge’s failure to refer to those matters.
The next issue concerns the state of the carport and the respondent’s and the parties’ children’s possession stored therein. At this juncture, it is appropriate to acknowledge that in the trial reasons, the carport was inaptly described as a garage. This is only mentioned because it received considerable attention from the appellant as demonstrating that the primary judge misunderstood the facts and aspects of the family home. It did not and is an irrelevancy. In any event, the appellant’s submissions then focussed on a prolonged dispute between the parties concerning the retrieval by the respondent of personalty from the family home, including possessions of the children. Once again there is a considerable volume of evidence about the issue, which is largely contentious. Quite properly, the primary judge did not attempt to resolve that controversy and rather, focussed on that which was uncontentious. Namely, photographs of items in the garage.
Her Honour found that “the garage was not in a clean state” and that “the manner in which items were left inevitably led to them deteriorating” [21]. This seems to be uncontentious. Importantly, no finding was made about the role played by either party in this state of affairs. Contrary to the submission of the appellant, the primary judge did not conclude that “leaves in an open carport”… “indicate that I do not maintain the matrimonial home” (paragraph 2.6 of the appellant’s Summary of Argument filed 4 June 2019). Indeed, at [22], the primary judge specifically disavowed the respondent’s contention that the photographs of items in the garage (carport) were corroborative of the poor state of the interior. Simply put, this challenge misstates the trial reasons.
The third matter concerns the decision of the primary judge “to move me into my parent’s house due to unemployment”. What follows in the appellant’s Summary of Argument is a narrative account of his parent’s relationship with the parties’ children and difficulties he says the respondent caused in the appellant’s family. The only aspect of this which was relevant concerns the appellant’s parents’ provision of accommodation to the respondent and children post-separation, which is correctly identified in the trial reasons.
At paragraph 3.6 of his Summary of Argument, the appellant correctly points out that the primary judge did not take into account evidence concerning his parent’s state of heath. As there was none, the failure to do so could not sound in error.
Notwithstanding the appellant’s contention that the primary judge could not use photographs of the carport to establish that the interior of the home was in a state of disrepair, by the final particular to this ground, the appellant argues that the primary judge failed to take into account that the home “is not habitable for more than [one] person.” As was mentioned earlier, the home was damaged by fire, in relation to which rectification works were being managed with an insurer. Although the appellant continued to live in the property, he contended that the property was unsuitable for occupation by the parties’ children. However, the primary judge was satisfied that the respondent, if she was able to resume occupation, would maintain the property in good condition. Given the evidence of the respondent of her intentions to do so, the finding was available.
Error as alleged by Ground 1 has not been established.
The decision was plainly unreasonable and unjust – Ground 2
In most respects, the submissions in support of Ground 2 replicate those advanced in support of Ground 1. It is not necessary to further consider those which have already been unsuccessful, and only those issues which are additional to those raised by Ground 1, will be discussed.
At paragraph 5.2 of the appellant’s Summary of Argument, he gives a narrative account of his evidence concerning the respondent’s abuse of the children. In addition to the orders made concerning the family home, the primary judge considered an application by the appellant for parenting orders. A single expert had been retained and it was understood that the expert’s report in relation to the family would shortly be provided. The primary judge determined that consideration of the parenting arrangements should await provision of that report and orders as sought by the appellant were not made. There is no appeal against that decision. It was undoubtedly appropriate for the primary judge to proceed on the basis that for the time being, the children would remain in the primary care of the respondent. The submissions advanced at paragraph 5.2 are incapable of establishing error.
Paragraphs 5.8 and 5.9 of the appellant’s Summary of Argument appear to challenge a finding to the effect that the respondent was in a position to re-finance the mortgage and meet ongoing mortgage payments. At [22], the primary judge was clearly concerned that while in occupation, the appellant had not made further mortgage payments and, although the mortgage had not fallen into arrears, periodic instalments were deducted by the mortgagee bank from the mortgage balance. The effect of this was to reduce the parties’ available capital. Further, that the appellant had failed keep council rates up to date and they were presently in arrears of about $1,000 ([22] and [25]).
At paragraph 5.8 the appellant argues that “[r]unning late on a payment is not a crime”. This is true, however her Honour’s point was that because “the former matrimonial home is the primary asset of the parties”, it was important that it be maintained and its expenses paid as and when they fell due [25]. No serious challenge can be made to this logic which was clearly relevant to the dispute as to occupation.
As to paragraph 5.9, the appellant contends that based on a conditional loan offer to advance $450,000 to the respondent, it was not open to the primary judge to be satisfied that the respondent could refinance the mortgage. This meant that it was not possible to be satisfied that the respondent would eventually be in a position to acquire his interest in the property. His point being that without evidence of the conditions, it was not possible to be satisfied that the respondent could fulfil the conditions. However, this was but one aspect of the evidence adduced by the respondent as to her capacity to raise funds, which included, for example, details of her salary and history of paying rent and other expenses. Given that this was an interim hearing, there was sufficient evidence to place some weight on the conditional loan offer and to the respondent’s ambition to retain the family home.
At paragraph 5.11 of the appellant’s Summary of Argument, it is submitted that the respondent misled the Court in relation to whether the parties’ son utilises one or more than one bus to get to school from the respondent’s rented accommodation and, if the respondent and children returned to the family home, the effect on their daughters of needing to travel further to school. It is accepted that at [9], the primary judge summarised the evidence given by the respondent concerning the children’s travel to and from school, and in relation to the parties’ son that he needed several bus changes to get to school. As [9] makes clear, the effect on the girls travel to and from school was not overlooked. However, the gravamen of her Honour’s decision (which is unchallenged) is that it was only a 5-10 minute drive between the family home and the girl’s school. In relation to travel, it is this finding that weighed in favour of the respondent’s claim for exclusive occupation and the error asserted is immaterial.
Error as alleged by ground 2 has not been established.
Remaining grounds
By Ground 3, it is argued that the primary judge erred on the facts. Ground 4 contends that the trial reasons are inadequate and by Ground 5, that the judge considered irrelevant matters. In support of these grounds, the appellant presented the same arguments and particulars raised pursuant to either Ground 1 or Ground 2. A good point need only be stated once and repetition of a weak or fallacious point does not make it stronger. The issues raised by Grounds 3 and 5 have already been considered and do not establish error.
Otherwise, as has already been demonstrated, her Honour’s reasons may be readily understood and, on the evidence available to her at the hearing, the result was within her broad discretion.
The remaining grounds have thus not been made good.
Application to adduce further evidence
It is necessary to consider the further evidence. The purpose of the doctor’s report was to demonstrate that the impecunious appellant could not re-house with his parents. The further evidence adduced in the appeal established that the appellant’s father has a serious cardiac condition. The medical evidence is to the effect that the appellant’s father should not be placed under stress and it was in the interests of his health that he continue to reside with his wife and nobody else. The submission by the appellant to the effect that, had this evidence been placed before the primary judge, the judge would not have been satisfied that the hardship caused to the appellant from being required to vacate the home would be ameliorated by being able to live with his parents should be accepted. Although this finding was not specifically made, on a fair reading of the judgment, it is the undoubted tenor and effect of the findings concerning hardship.
In a similar vein, had this evidence been available, as the appellant argues at paragraph 6.9, the primary judge would have considered that the earlier orders for the sale of the property made provision for the parties to each receive $50,000 from the proceeds of sale and considered whether, if the appellant was required to vacate, he required access to such a fund. The point being, this was an agreed sum which each party could use to re-house pending final property orders. The submission should be accepted.
The further evidence of the appellant, which is not seriously controversial, demonstrates that, although involving no error at the time it was made, to proceed on the basis that the appellant could reside with his parents can now be seen as erroneous. Based on that further evidence, the appellant has established that the orders of the primary judge are attended by sufficient doubt as to warrant them being reconsidered by this Court and further, that the appellant being in effect, rendered homeless, would occasion substantial injustice if leave to appeal was refused.
Thus, leave to appeal will be given and the appeal will be allowed. The orders made by the primary judge will be set aside.
Re-exercise
I agree with the primary judge that in relation to the respondent’s application for exclusive occupation, the balance of convenience strongly favours the respondent. The parties’ children reside with the respondent and since separation, they have lived in three properties. The respondent’s current tenancy is reasonably stable but as with any rental property, is less permanent than property which is owned. The rented apartment is small and the respondent and some of the children share a bedroom. Significant weight is attached to the fact that the family home is a two story dwelling which would provide greater and appropriate privacy for the respondent and the children. It is accepted that there are still significant repairs to be undertaken and parts of the property are not yet permanently habitable. However, the respondent and children are able to live around the damaged areas, as the appellant does.
The respondent is employed and has been able to pay rent with very limited child support paid by the appellant. She seeks to retain the family home and has the capacity to pay mortgage instalments, rates and necessary expenses for the property from income. Furthermore, she has secured conditional loan approval to refinance the mortgage and agrees that the appellant could receive $50,000 by way of draw down from the mortgage so as to re- establish himself independently.
The appellant on the other hand, would prefer to remain in occupation until the family home is sold. However, the parties have been unable to sell the family home and it is not possible to be confident that a sale could be achieved any time soon. While the appellant has been in sole occupation, he has overwhelmingly had exclusive use of the parties’ most valuable asset. It a sizeable dwelling and much larger than is needed for a person who lives alone. For this situation to continue indefinitely would be unreasonable to the other members of the family. Furthermore, the property has been damaged, ongoing mortgage payments have not been made and council rates fell into arrears. As the former is the result of an accident, it carries little weight, whereas the other matters deserve considerable weight. The point being, that unlike the situation with the respondent, I am not satisfied that if the appellant remains in occupation, the parties’ principal asset will be maintained financially and appropriately.
Provision of $50,000 from the equity in the family home will give the appellant an appropriate sum of money, indeed an amount he was previously satisfied would enable him to resettle elsewhere and rehouse. Rehousing will occasion some inconvenience but it does not equate to hardship. The balance of convenience strongly favours the orders proposed by the respondent and it is proper that they are made. Given the many allegations of family violence made by each of the parties and police involvement (including charges) against the appellant, so as to maintain peace between the parties, once the appellant has vacated the family home, he will be restrained from returning.
The appellant has been aware since February 2019 that there is a real possibility he may be required to vacate the family home. Although he may need to move with some alacrity, giving him three weeks from when he receives the $50,000 strikes the right balance between the respondent being able to take up occupation and him being able to make alternate arrangements.
Costs
This is not a case where an order for costs would be appropriate. Each of the parties secured a measure of success and there is no other factor which would justify an order for costs.
In the alternative, the parties seek a certificate under the Federal Proceedings Costs Act 1981 (Cth) (“the Costs Act”).
This is a federal appeal which has been allowed on the basis of an error of law. The parties are not wealthy and each put considerable effort into the conduct of the appeal. I am satisfied both are entitled to a certificate under the Costs Act for the appeal.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 2 September 2019.
Associate:
Date: 2 September 2019
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