Reisner and Reisner (Costs)
[2010] FamCA 588
•15 July 2010
FAMILY COURT OF AUSTRALIA
| REISNER & REISNER (COSTS) | [2010] FamCA 588 |
| FAMILY LAW - COSTS – Application for costs certificates – Trial judge disqualified himself – New hearing necessary – Discontinuance not attributable to the neglect, default or improper act of any party to the proceedings – Certificates granted. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Cramer v Davies (1997) 72 ALJR 146 |
| APPLICANT: | Ms Reisner |
| RESPONDENT: | Mr Reisner |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 1065 | of | 2007 |
| DATE DELIVERED: | 15 July 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 15 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hogan |
| SOLICITOR FOR THE APPLICANT: | Barry & Nilsson Lawyers |
| SOLICITOR FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McMillan SC |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The Court grants to the mother a costs certificate pursuant to s 10(3) 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 payment under that Act to her in respect of such part as the Attorney-General considers appropriate of any costs incurred by her in relation to the discontinued proceedings.
The Court grants to the father a costs certificate pursuant to s 10(3) 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 payment under that Act to him in respect of such part as the Attorney-General considers appropriate of any costs incurred by him in relation to the discontinued proceedings.
The Court grants to the independent children’s lawyer a costs certificate pursuant to s 10(3) 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 payment under that Act to her in respect of such part as the Attorney-General considers appropriate of any costs incurred by her in relation to the discontinued proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Reisner & Reisner (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1065 of 2007
| Ms Reisner |
Applicant
And
| Mr Reisner |
Respondent
REASONS FOR JUDGMENT
This judgment concerns applications made by both of the parties and the independent children’s lawyer for costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for the costs incurred by them in discontinued proceedings before Justice Barry.
Background
The mother commenced proceedings on 18 April 2007.
The trial commenced on 20 October 2009 and was adjourned part heard on 23 October 2009.
The trial continued on 22 and 23 April 2010 and was adjourned until 28 April 2010.
On 28 April 2010, counsel for the independent children’s lawyer made an oral application that the judge be disqualified on the basis of apprehended bias. After hearing submissions from counsel for the independent children’s lawyer and the mother’s counsel (who supported the application) Barry J made orders disqualifying himself from further hearing of the matter and for a new hearing.
The father represented himself in the trial, although on the apprehended bias application a duty lawyer appeared who informed the Court that the father neither joined in nor opposed the application.
There had been six full days of hearing before the judge disqualified himself. The parties and the independent children’s lawyer are now seeking certificates in relation to the costs incurred by them.
The new hearing of the matter commenced this week.
The relevant legislation
Section 10 of the Costs Act relevantly provides:
10 Costs certificates – incomplete proceedings
(1)This section applies to the High Court, the Federal Court, the Family Court, the Federal Magistrates Court and a court of a Territory.
(2)Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(3) Subject to this Act, where:
(a)the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(4)The certificate that may be granted under subsection (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings.
Section 18(2) of the Costs Act provides that certificates granted pursuant to s 10(2) or s 10(3) are not limited to the “prescribed amount”, which in relation to Family Court proceedings is capped in the amount of $2,000. This is of some significance in this case as the costs said to have been incurred by the mother were $78,583.34, and those of the independent children’s lawyer were $31,539.
Costs of the independent children’s lawyer
A preliminary question which arises from the terms of s 10(3) is whether an independent children’s lawyer, not being a “party to the proceedings” can apply for such a certificate.
I am of the view that the independent children’s lawyer can apply. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) which speaks of the “parties to the proceedings” was amended to include provision for the costs of the independent children’s lawyer.
Rule 8.02 of the Family Law Rules 2004 (“the Rules”) provides that an independent children’s lawyer must “do anything required to be done by a party” and that the “parties must conduct the case as if the independent children’s lawyer were a party”. A notation to r 6.01 states that an “independent children’s lawyer is not a party to a case but must be treated as a party” (emphasis added).
Conclusion
I refer to the comments made by Kirby J in the decision of Cramer v Davies (1997) 72 ALJR 146 about the “general purpose” of the Costs Act. His Honour repeated a statement he had made as President of the New South Wales Court of Appeal in Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491 at 494:
The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application is the relief of litigants against the costs inevitably incurred when appeal review discloses an error of law requiring correction. The object is to ensure that litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow. (emphasis added)
I have had the benefit of reading the transcript of the proceedings before Barry J when the application was made that he be disqualified. I have also read his Honour’s reasons for judgment.
It is clear that the discontinuance of the proceedings and the requirement for a new hearing are not attributable to the “neglect, default or improper act” of either the parties or the independent children’s lawyer, to use the language of the Costs Act. It is clear there was no delay on their part in bringing the disqualification application.
Given the circumstances of the case, I am satisfied that it is appropriate for me to grant costs certificates in relation to both of the parties and the independent children’s lawyer pursuant to s 10(3) of the Costs Act.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May.
Associate:
Date: 15 July 2010
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