Santoro and Santoro

[2010] FamCA 126

FAMILY COURT OF AUSTRALIA

SANTORO & SANTORO [2010] FamCA 126

FAMILY LAW – COSTS – Application for certificates pursuant to s 10(2) and s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) – Application dismissed

Federal Magistrates Act 1999 (Cth) s 39
Federal Proceedings (Costs) Act 1981 (Cth) ss 10(2), 10(3)

Marsh & Marsh [2009] FMCAfam 1160
Oriana Blue Pty Ltd in the matter of Cliveden Hill Holdings Pty Ltd v Cliveden Hill Holdings Pty Ltd [2000] FCA 358
Re Palmdale Insurance Ltd and Re the Companies Ordinance 1962 [1994] ACTSC 108

APPLICANT: Ms Santoro  

RESPONDENT: Mr Santoro

INDEPENDENT CHILDREN’S LAWYER: Ross A. Clarke & Associates

FILE NUMBER: SYC 1574 of 2008

DATE DELIVERED: 25 February 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Watts

HEARING DATE: 9 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell

SOLICITOR FOR THE APPLICANT: Karras Partners  

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: York Family Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Barry

Orders

1. That the respective applications of the parties to these proceedings for costs certificates under the relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1574 of 2008

MS SANTORO

Applicant

And

MR SANTORO

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These were respective applications by both parties to obtain costs certificates under s 10(2) and s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) arising from when the matter was listed for finalisation before Federal Magistrate (FM) Altobelli. As suggested by counsel, I ordered the parties to file written submissions in respect of these applications by 30 September 2009. The written submissions of the applicant husband included copies of the transcripts of the proceedings before the trial magistrate on 9 and 10 March 2009. I have had the benefit of reading those transcripts.

2. It is submitted by both parties that, as a consequence of the way in which the learned Federal Magistrate handled the proceedings on 9 March 2009, the proceedings were rendered nugatory and were ultimately aborted.  It should be noted that the matter was transferred by FM Altobelli from the Federal Magistrates Court of Australia to the Family Court of Australia on 28 May 2009.  I have now delivered an interim Judgment with respect to the parenting proceedings (see Santoro & Santoro [2009] FamCA 812).

BACKGROUND

1. On 26 February 2009 after hearing submissions from all parties, FM Altobelli ordered that the parenting and property settlement proceedings of the parties be split and heard separately, with the parenting hearing to commence on 9 March 2009.  The matter proceeded on 9 March 2009 in circumstances revealed in the transcripts. 

2. Late on that day, an application was made by Mr Schonell, counsel for the wife, for the learned Federal Magistrate to disqualify himself.  His Honour delivered his Judgment ex tempore on 10 March 2009 (see Santoro & Santoro [2009] FMCAfam 212) where he dismissed the application. FM Altobelli then ordered that the matter be adjourned for the hearing of both the parenting and property matters over 9 days in September 2009.

3. There was a further mention before the learned Federal Magistrate on 8 May 2009 where he indicated that he would revise the number of hearing dates from 9 to 6 days to commence on 1 October 2009. A further mention occurred on 28 May 2009, where FM Altobelli sought submissions as to whether the proceedings should be transferred to the Family Court. Ultimately, FM Altobelli ordered the transfer to the Family Court pursuant to s 39 Federal Magistrates Act 1999 on that date.

4. The wife submits that her legal costs for counsel appearing on 9, 10 and 11 March 2009 (although I note no court event actually took place on 11 March 2009) and 8 and 28 May 2009 totalled $22,310.75 (inclusive of GST).  The husband has not stated in his submissions the relevant costs he has incurred. 

Relevant law

1. It should be noted that the granting of a costs certificate is a discretionary power and no appeal lies from the exercise of that power. 

2. Sections 10(2), 10(3) and 10(4) of the Federal Proceedings (Costs) Act 1981 (Cth) relevantly provide:

   (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. (emphasis added)

Discussion

1. It would appear that words emphasised in s 10(2) and s 10(3) require that the Court in which the hearing was initially aborted or discontinued is the court in which the application for a certificate should be heard. This is supported by the words I have emphasised “the court may”. If the Parliament intended for a court other than a court where the discontinuance occurred to hear and grant such an application for a certificate it would have specifically said “a court may”. I note this approach is supported by the fact that the limited number of decisions which have canvassed applications under s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) where a matter has been transferred between courts have been dealt with by the court from which the proceedings have been transferred: see for example Marsh & Marsh [2009] FMCAfam 1160; Oriana Blue Pty Ltd in the matter of Cliveden Hill Holdings Pty Ltd v Cliveden Hill Holdings Pty Ltd [2000] FCA 358; Re Palmdale Insurance Ltd and Re the Companies Ordinance 1962 [1994] ACTSC 108; W & W [2003] FMCAfam 472.

2. I conclude that I am precluded from considering the application by virtue of the terms of s 10 of the Federal Proceedings (Costs) Act 1981 (Cth).

3. In the event that such an application is made, a Federal Magistrate may need to decide as to whether what happened in the Federal Magistrates Court attracted the relief provided by s 10 of the Federal Proceedings (Costs) Act 1981 (Cth). It would be inappropriate to express a view as to the likely outcome of such an application in the Federal Magistrates Court.

4. For these reasons, I dismiss the applications.

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

Associate:

Date:  25 February 2010