Salah and Aharat

[2007] FamCA 774

FAMILY COURT OF AUSTRALIA

SALAH & AHARAT [2007] FamCA 774

FAMILY LAW – COSTS - Application for costs certificate

Federal Proceedings (Costs) Act 1981 (Cth) – s 10

APPLICANT: Mr Salah

RESPONDENT: Ms Aharat

FILE NUMBER: SYF 3490 of 2002

DATE DELIVERED: 31 July 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 31 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sweet

SOLICITOR FOR THE APPLICANT: Stojanovic Solicitors

COUNSEL FOR THE RESPONDENT: Ms Volk, solicitor

SOLICITOR FOR THE RESPONDENT: Williamson Isabella, Solicitors

Orders

1. That the parties’ respective applications for the granting of a certificate under the Federal Proceedings (Costs) Act 1981 are dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3490 of 2002

Mr Salah

Applicant

And

Ms Aharat

Respondent

REASONS FOR JUDGMENT

1. There are applications before the Court by each of the parties, Mr Salah and Ms Aharat for orders to the effect that a certificate be granted under the Federal Proceedings (Costs) Act 1981 stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the parties. 

2. This is in circumstances where these proceedings were in a duty list, that being a duty list presided over by my learned colleague Judicial Registrar Loughnan on 24 July 2007.  I understand that on that occasion my colleague commenced hearing the matter but then for reasons that are not apparent to me, decided to disqualify himself and to stand over the matter for hearing today.  In those circumstances, it is submitted by each of the legal practitioners for the parties that the earlier hearing was discontinued, and discontinued because the judicial officer became unable to continue with the proceedings in circumstances where he had disqualified himself.

3. My reading of s 10 of the Federal Proceedings (Costs) Act 1981 is that the provisions of that section give the Court discretion about whether to order the granting of a certificate under the section.  What has to be remembered, in my view, is that these interlocutory proceedings come into busy judicial duty lists and there is often uncertainty on the day about whether all of the matters in those lists will be able to be heard. 

4. I have no idea whether in fact my colleague might have been pressed for time on that occasion.  That might have played a part in his decision to list the matter before a different judicial officer.  In any event, in the exercise of my discretion, I do not regard the circumstances in these proceedings as being appropriate to order the granting of a certificate. 

5. I am most reluctant to bring about a situation where this sort of practice might become common place in duty lists which are already very onerous for the Court and in which it can be difficult to find time to deal with every case.  It is not uncommon for one or two matters to have to be adjourned for lack of hearing time on the day.  In all the circumstances I do not propose to exercise the Court’s discretion in favour of making such orders.

I certify that the preceding five (5) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar W P Johnston.

Associate:     ___________________

Date:              2 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SALAH & AHARAT