RG and JR

[2006] FamCA 859

FAMILY COURT OF AUSTRALIA

RG AND JR [2006] FamCA 859

APPLICATION – For extension of time to file application for costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Extension of time granted – Whether costs certificate should be granted – Applicant successful on only one ground in appeal and unsuccessful on all other grounds – Not appropriate to grant costs certificate – Application dismissed.

Family Law Act 1975 (Cth), s 117
Federal Proceedings (Costs) Act 1981 (Cth), s 9
Family Law Rules 2004, r 19.08

APPLICANT:  RG

RESPONDENT:  JR       

FILE NUMBER:  NCF 673 of 2000

APPEAL NUMBER:  EA 21 of 2002

DATE DELIVERED:  3 August 2006

PLACE DELIVERED:  Sydney

JUDGMENT OF:  Bryant CJ, Coleman and

Boland JJ

HEARING DATE:  3 August 2006

REPRESENTATION

APPLICANT:  In person

RESPONDENT:  In person via telephone

Orders

1. That the applicant be granted an extension of time until 25 May 2006 to file an application for a costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

2. That the applicant’s application for a costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EA 21 of 2002

FILE NUMBER: NCF 673 of 2000

RG

Applicant

And

JR

Respondent

EX TEMPORE REASONS FOR JUDGMENT

BOLAND J:

INTRODUCTION

1. On 27 April 2006 we delivered our reasons for judgment in respect of an appeal by RG (‘the father’) against orders made by Rose J on 31 January 2002.

2. In that appeal the father had originally relied on seven grounds of appeal, but before us argued four additional grounds of appeal.  We allowed the father’s appeal limited to one ground and discharged Order 9(b) of the trial judge’s orders.

3. On 22 June 2006 the father filed an application for special leave in the High Court of Australia, Sydney Registry.

4. The father has now filed a further application relevant to his appeal before us. The application is an Application in a Case filed 25 May 2006 in which he seeks the following orders:

‘1.     That the appellant father be given addition [sic] time to complete his cost application.

2. that the father and mother be granted cost certificates pursuant to the relevant section of the Federal Proceedings (Costs) Act 1981 being a certificate stating that in the opinion of this Court it would be appropriate for the Attorney-General to authorise a payment under the Act for the Appeal and portion of the original hearing.

3.    That the father’s appeal costs be paid in full due to errors of fact and law made in the Appeal judgment.’

1. The father’s application is not opposed by JR (‘the mother’) who appears before us today by telephone.  I note that the father has now confirmed before us that he is not seeking costs of the trial before Rose J but only costs associated with the appeal.

RELEVANT PROVISIONS OF THE FAMILY LAW ACT, FAMILY LAW RULES AND FEDERAL PROCEEDINGS (COSTS) ACT AND HIGH COURT RULES

1. Section 117 of the Family Law Act 1975 (Cth) (‘the Act’) provides that each party to proceedings under the Act shall pay his or her own costs of proceedings. However s 117(2) provides that if there are circumstances justify it doing so the Court may subject to subsections (2A), (4) and (5) of s 117 make such order for costs as the Court considers is appropriate.

2. Clearly, s 117 is not applicable to this application.

3. Rule 19.08 of the Family Law Rules 2004 (‘the rules’) provides as follows:

   ‘19.08 Order for costs

   (1)     A party may apply for an order that another person pay costs.

   (2)     An application for costs may be made:

   (a) at any stage during a case; or

   (b) by filing an Application in a Case (Form 2) within 28 days after the final order is made.

   (3)    A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

   …

   (4)    In making an order for costs, the court may set a time for payment of the costs that may be before the case is finished.’

4. The Act and the rules do not specify the time in which any application must be filed seeking a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) (‘the Costs Act’).

5. There is no provision in the Costs Act specifying the time in which an application under that Act shall be brought.

6. Section 9 of the Costs Act provides as follows:

   ‘Costs certificates—Federal appeals in family law proceedings

   (1)    Subject to this Act, and in particular without limiting section 6, where:

   (a) a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of “Federal appeal” in
   sub-section 3(1) succeeds on a question of law; and

   (b) in accordance with section 117 of the Family Law Act 1975, each party to the appeal bears his or her own costs,

   the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.

   (2)    The certificate that may be granted under sub-section (1) by a court to an appellant to a Federal appeal 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 the appellant in respect of the costs incurred by the appellant in relation to the appeal.’

EVIDENCE IN SUPPORT OF THE FATHER’S APPLICATION

1. The father’s application is supported by an affidavit affirmed by him on 25 May 2006.  In that affidavit the father deposes to his income being derived from Newstart unemployment benefit.

2. He also deposes to seeking procedural assistance with this application from the Appeals Registrar, but experiencing difficulties in contacting the Registrar at about the time of Registrar Jurd’s retirement from the Court.

3. The father deposes as follows:

   ‘I was in part successful in my appeal although it was not the substantive issue which was unsupervised contact.  Order 9(b) was overturned and there is no reference to costs in the judgment by the Bench although I did seek a cost certificate in the last amended application.’ (paragraph 4) and

   ‘I need further time to locate and identify the relevant legislation as to cost applications.  I belief [sic] there is significant merit in my application because (i) the amount is significant to me as I am on unemployment benefits only with no other regular form of income and (ii) the order 9(b) impacted on my mental and financial well-being for 4 years due to its nature …’ (paragraph 5).

4. He further says:

   ‘I need to locate previous documents and cost details as my records after 6½ years of court proceedings are incomplete and fragmented.’ (paragraph 6).

5. Thereafter the father set out matters relating to difficulties in his personal circumstances which I find not directly relevant to this application.  He also set out a number of matters contained in the Appeal Books which again I find have no relevance to this application.

6. The father does provide some details of his expenditure associated with the appeal although there is no evidence corroborating such expenditure.  He deposes to the appeal books containing 630 pages, numerous trips to Sydney and Newcastle, and the transcript of part of the hearing costing $1200.00.

ISSUES TO BE DETERMINED

1. I discern the father’s application requires determination of the following issues:

• Did the father apply for a costs certificate either in his Further Amended Notice of Appeal or in orders referred to in that Notice of Appeal?

• Do the rules prescribe a time limit to file an application for a certificate under the Costs Act?

• Should the father be granted an extension of time to either file or prosecute an application for a costs certificate?

• If time should not be extended, is it appropriate to grant a certificate under the Costs Act?

DISCUSSION

1. As set out in the judgment of the Court of 27 April 2006 at paragraph 3 the father relied on an Amended Notice of Appeal filed 10 December 2004.  There is no order sought in that document for a costs certificate nor is there any order sought in his submissions filed 3 October 2001.  The father’s draft minutes of proposed orders annexed to his submissions dated 26 September 2001 contain no order for a costs certificate. I am satisfied that the father is mistaken in his belief that his Amended Notice of Appeal contained an order seeking a costs certificate.

2. I turn then to the question of whether the rules provide a time limit to apply for an order for a costs certificate. I have already referred to r 19.08. Whilst it does not include a specific provision dealing with the Costs Act it appears to me that r 19.08(1) prima facie is wide enough to encompass such an application, particularly having regard to s 9(1)(b) of the Costs Act which refers to the general position under s 117(1) of the Act.

3. If I am wrong in my interpretation of r 19.08, I am satisfied that there is no appropriate provision in the High Court Rules 2004, and that any application for a certificate should be made at the hearing of the appeal or a reasonable time thereafter.

4. I am satisfied however that this matter does not require determination by me today because I would grant, for the reasons I will pronounce in a moment, such an extension of time.

5. The father’s application was filed one day late being filed 29 days after the delivery of the appeal judgment.

6. I accept the father may, particularly having regard to his geographical location, have had difficulties in obtaining procedural advice immediately after delivery of the judgment.  Having regard to the very short period, only one day, by which the father’s application was filed outside the rules, I would, if it is in fact necessary to do so, extend time to the father to make an application for a costs certificate.

7. I turn then to the substantive question, namely whether or not a costs certificate should be granted.  In considering this question I have already noted that the father’s material addresses a number of matters which appear to relate to costs of proceedings before Rose J rather than the costs incurred in the appeal and other matters which do not go to the matters I am required to consider in this application.

8. As the father himself has noted in his affidavit, he was unsuccessful in the appeal on the majority of his grounds which were directed to the question of contact (as it was described prior to the introduction of recent amendments to the Act). In the father’s amended grounds of appeal his essential challenge was to the trial judge’s orders for supervised contact being indefinite, and that the orders contained no mechanism for them to be reviewed, but at no time in his oral and written submissions did he challenge the trial judge’s orders which provided for the child of the parties to live with the mother.

9. I find that the father was successful on only one ground in relation to the appeal and unsuccessful on all of the other grounds, which in fact were the substantial grounds. In these circumstances I do not find it appropriate to grant a certificate to the father under the provisions of s 9 of the Costs Act, and I would dismiss the father’s application.

BRYANT CJ:

1. I agree with the reasons and the order enunciated by Boland J and have nothing further to add.

COLEMAN J:

1. I too agree with the order proposed by Boland J and the reasons for making such order and also have nothing to add.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 3 August 2006