Ramsey and Ramsey (Costs) - [2017] FamCAFC 117

FAMILY COURT OF AUSTRALIA

RAMSEY & RAMSEY (COSTS)

[2017] FamCAFC 117

FAMILY LAW – APPEAL – Appeal allowed by consent – Costs certificates issued for rehearing – Circumstances in which costs certificates may be issued under s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) considered.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) s 8

Alford & Alford [2015] FamCAFC 100

APPELLANT:

Mr Ramsey

RESPONDENT:

Ms Ramsey

FILE NUMBER:

SYD

1968

2008

APPEAL NUMBER:

202

2016

DATE DELIVERED:

5 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray J

HEARING DATE:

5 May 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 July 2016

LOWER COURT MNC:

[2016] FCCA 1894

REPRESENTATION

COUNSEL FOR THE APPELLANT:

No appearance

SOLICITOR FOR THE APPELLANT:

KHQ Lawyers

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Monardo Legal

Orders

BY CONSENT:-

The appeal be allowed.
The matter be remitted for rehearing in the Federal Circuit Court of Australia on a date to be fixed.
The Court grants to the appellant and the respondent pursuant to the provisions of s 8 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 each of them in respect of the costs incurred by them in relation to the rehearing of the issue remitted.

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 Ramsey & Ramsey (Costs) 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 202 of 2016
File Number: SYC 1968 of 2008

Mr Ramsey

Appellant

And

Ms Ramsey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the Court is an appeal from an order of the Federal Circuit Court made on 26 July 2016. The Notice of Appeal was filed on 3 February 2017 in accordance with leave granted by Ainslie-Wallace J on 31 January 2017.
The matter is listed today following the Court receiving a minute of consent orders signed by the solicitors for the appellant and the respondent. The proposed orders provide that the appeal be allowed, that the matter be remitted for rehearing in the Federal Circuit Court of Australia on a date to be fixed, and that each party be granted a costs certificate for the rehearing.
I am dealing with the matter in the parties’ absence to relieve them of further expense in the appeal. As the matter is proceeding by consent, I am also dealing with it as a single judge. In ordinary circumstances, I would have made the orders in chambers, but the fact the parties have agreed there ought to be cost certificates makes it important that the orders be made in open court.
The reason it is necessary to deal with the matter in open court arises from s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) which, inter alia, provides:
(1) Subject to this Act, where, in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party to the cause, grant to the party a costs certificate in respect of the new trial.
It can be seen three conditions must be satisfied before the discretion to grant a costs certificate is enlivened. Two of these are satisfied here: the appeal is properly characterised as “a Federal appeal” and, for reasons I will explain, it has succeeded on “question of law”. The third condition is more problematic: has a court “heard the appeal” given it has been resolved by consent?
This topic has been considered previously, most recently, to my knowledge, in Alford & Alford [2015] FamCAFC 100 where Murphy J gave an ex tempore judgment, with which May and Aldridge JJ agreed. In that case, the appeal was settled shortly prior to the matter coming before the Full Court and the issue also arose as to whether the appeal had been “heard”.
At paragraph 11 of his judgment, Murphy J said:
However, as emerges from the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146 and from the decisions of this Court in B&B (Costs Certificates) (2007) FLC 93-339 and Ball & Ball (Costs Certificates) [2007] FamCA 1252, ss 6 and 9 of the Act each require, in addition, that “the court concerned should ‘have heard the appeal’”. Kirby J held that a broad construction should be given to that expression. As the two decisions of this Court to which I have just made reference make clear, that approach has respectfully been adopted in this Court. The result is that the requirement for this Court to have “heard the appeal” within the meaning of the relevant sections “means no more than having the matter listed before the court so that it may dispose of the appeal in a public and formal way, hence the reason for me having listed the matter for hearing in this public and formal way”.
In the present case, the circumstances go beyond the appeal having been listed for hearing in a “public and formal way”. There was also the public hearing dealing with the application for an extension of time in which to appeal that came before Ainslie-Wallace J on 30 January 2017, as I mentioned earlier.
It is apparent from the reasons given by Ainslie-Wallace J that in the course of that argument consideration was given to the merits of the appeal. Indeed, on that occasion, counsel for the respondent acknowledged there was merit in the appeal. Although her Honour was not satisfied about the explanation for the delay which necessitated the application for an extension of time, she considered that the “undoubted merits of the appeal” were such that an extension of time should be granted. Given that background, it is unsurprising that the parties have come to an agreement about the outcome of the appeal.
Notwithstanding the appeal is being allowed by consent, I should say something briefly about the judgment that was the subject of the appeal. The issue at stake in the Court below was whether or not a binding child support agreement should be set aside. The matter came on for argument in April 2014 but regrettably the primary judge did not deliver his judgment until late July 2016. Ainslie‑Wallace J set out in her judgment the essential parts of his Honour’s reasons. The first 33 paragraphs might be seen as the background. The actual reasons for the decision, delivered more than two years after the hearing, are then given in two paragraphs.
As I have already said, Ainslie-Wallace J considered there was merit in the appeal, and so did counsel for the respondent when the matter was before her Honour. The parties have now provided an agreed statement about the merits of the appeal and the reasons why the matter needs to be remitted. I will read into the record their agreed position:
1.The Orders of his Honour Judge Scarlet of 26 July 2016 (the Orders) were made more than 2 years after the Final Hearing and in circumstances where his Honour’s retirement was imminent;
2. His Honour Judge Scarlet erred at law in failing to provide adequate reasons in the Judgment in order to discern either expressly or by implication, the path by which the result had been reached;
3. His Honour’s Reasons for Decision are inadequate in that he did not give any or any sufficient reasons to sufficiently explain the basis for any findings made in reaching his ultimate decision; and
4. The Reasons for Judgment of His Honour were manifestly inadequate.
These reasons properly reflect what is apparent on the face of the judgment of the primary judge. I therefore make orders in terms of paragraphs 1 and 2 of the minute of consent orders. The formal order, which I make in lieu of the terms proposed in paragraph 3 of the minute, will be as follows:
The Court grants to the appellant and the respondent pursuant to the provisions of s 8 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 each of them in respect of the costs incurred by them in relation to the rehearing of the issue remitted.
In making that third order, I recognise that the granting of a costs certificate is discretionary, even after all the preconditions have been satisfied. I do not have much information regarding the parties’ financial circumstances or indeed any other information to assist in determining whether it is appropriate for costs certificates to be issued. However, the parties have been put to unnecessary expense in pursuing this appeal. They will now have the expense of the matter being litigated all over again, some years after proceedings were commenced. They have mitigated the loss to the private and public purse by compromising the appeal on sensible terms. The least that can be done in those circumstances is that there be some modest compensation in the form of the costs certificates.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 5 May 2017.

Associate:

Date: 6/7/17