Salah and Aharat

[2008] FamCA 19

FAMILY COURT OF AUSTRALIA

SALAH & AHARAT [2008] FamCA 19

FAMILY LAW – COSTS – Costs certificate

APPLICANT: Mr Salah

RESPONDENT: Ms Aharat

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: SYC 5502 of 2007

DATE DELIVERED: 16 January 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: STEVENSON J

HEARING DATE: 2 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweet

SOLICITOR FOR THE APPLICANT: Stojanovic Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Williamson Isabella

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

I make the following orders:

1. That the Court grants to the applicant, Mr Salah, a costs certificate pursuant to section 10(3) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to organise payment under that Act to him in respect of any such part as the Attorney-General considers appropriate of any costs incurred by him in relation to the discontinued proceedings and this review.

IT IS NOTED that publication of this judgment under the pseudonym Salah & Aharat is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 5502  of 2007

MR SALAH

Applicant

And

MS AHARAT

Respondent

APPLICATION FOR A CERTIFICATE PURSUANT TO THE FEDERAL PROCEEDINGS (COSTS) ACT 1981

the proceedings

1. This is a review by the father, Mr Salah, of an order dismissing his application for a certificate pursuant to the Federal Proceedings (Costs) Act 1981. His application was refused by Judicial Registrar Johnston on 31 July 2007. The father and Ms Aharat, the mother, were involved in litigation concerning their child, who was born in November 2001. On 24 July 2007 some form of interlocutory application came before Judicial Registrar Loughnan in a duty list. Apparently the Judicial Registrar indicated a view as to the probable outcome of part of the interlocutory proceedings, which related to the school which the child should attend, when the matter was initially mentioned before him. At this time the Judicial Registrar had read no affidavit evidence.

2. It seems that the matter was then stood down in the list to 2:15pm and ultimately re-mentioned at 3.53pm (exhibit 1).  An application was then made on behalf of the father that the Judicial Registrar disqualify himself.  This application was successful and the proceedings were then listed before Judicial Registrar Johnston on 31 July 2007.  On that day a number of interim parenting orders were made and the father’s application for a certificate was refused. 

3. The review came before me on 2 November 2007.  I was obliged to stand the matter down in the list to enable the father’s legal representative to obtain a transcript of the proceedings before Judicial Registrar Loughnan on 24 July 2007.  Without this transcript, the only evidence before me were the orders and judgment of Judicial Registrar Johnston of 31 July 2007.  Extensive written submissions were filed on behalf of the father, much of which had no evidentiary basis.  I indicated that I would not rely on the contents of this document, unless the assertions contained therein were supported by evidence.

CONSIDERATION AND CONCLUSION

1. It was submitted on behalf of the father that he is entitled to a certificate pursuant to either or both of subsections 10(2) or 10(3) of the Act.  Subsection 10(2) provides:

   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.

2. I have difficulty with the concept that the events which took place before Judicial Registrar Loughnan on 24 July 2007 fall within the parameters of subsection 10(2).  The intention of this subsection seems to be to address situations where a hearing is rendered abortive due to the judicial officer’s becoming physically unable or legally prevented from completion and delivery of judgment.  There were no such circumstances before Judicial Registrar Loughnan.

3. Subsection 10(3) provides:

   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. This subsection arguable captures the present situation.  The result, of course, is subject to the exercise of discretion.  It seems clear to me that the hearing had commenced before Judicial Registrar Loughnan when the matter was mentioned and an outline of the issues was apparently given by the legal representatives of the parties.  The proceedings were discontinued when the Judicial Registrar disqualified himself and a new hearing was ordered before Judicial Registrar Johnston one week later.  On the material available to me, nothing suggests that this discontinuance and the new hearing were attributable to the neglect, default or improper act of either of the parties. 

5. An authority which seems to be on point is the decision of Finn J in Polo & Polo [2007] FamCA 385. For reasons which it is not now necessary to canvas, Her Honour disqualified herself, which meant that the hearing of contested proceedings for property settlement was discontinued. A certificate pursuant to section 10(3) was granted to all of the parties to the proceedings.

6. It thus seems to me that the father has established the matters necessary to enliven the court’s discretion to award the certificate which he seeks. Reluctantly, I have decided to exercise my discretion in favour of an order that the father be granted a certificate pursuant to section 10(3).

7. My reluctance stems in part from doubts whether it was appropriate that an application be made on behalf of the father that the Judicial Registrar disqualify himself on the basis of an indication of a “preliminary” view expressed in a busy duty list.  The word “preliminary” was adopted by the father’s counsel when the matter was mentioned for the second time and the application for disqualification was made (exhibit 1).  It is not for me now to revisit this application or the disqualification.  I simply observe that it is not uncommon for a judicial officer to express preliminary views in the course of a busy duty list.  It may be that the very efficacy of these lists depends, to some extent, on the expression of such preliminary views.

8. Because counsel for the father made repeated mention to Judicial Registrar Loughnan of his “huge list”, I wish to make it clear that I would not have granted a certificate to the father on the basis solely that the interim proceedings were adjourned.  I respectfully agree with the views expressed by Kiefel J in Official Trustee in Bankruptcy v Forrest [2000] FCA 907 on this issue. Her Honour cited with approval a statement of Muirhead J in re Morris; Morris v Maroudas [1986] 66ALR 699 as follows:

   “Finally I comment that had the legislature intended to cover adjournments it would surely have inserted the words ‘or adjourned’, or ‘adjournment’ after the words ‘discontinued’ and ‘discontinuance’ respectively in section 10(3).”

   Kiefel J then added:

   “I respectfully agree with His Honour.  The word ‘discontinuance’ has a well established meaning with respect to court proceedings.  It conveys something having commenced and then ceasing prior to its conclusion.  As the title to the section notes, the proceedings are ‘incomplete’.  That is not the same as the adjournment of proceedings, which may be stood over prior to or after commencement.”

9. The father’s application included a request for an order “that the costs for this review be included in [the] certificate”.  As section 10(4) makes clear, it is not for me to give any indication as to the quantum of costs which the Attorney-General may, in his discretion, authorise as a payment to the father.  I leave the question of the father’s cost of this review for the Attorney-General to determine, in the exercise of his discretion. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              16 January 2008