Siegel and Danner (Costs)

[2009] FamCAFC 126

FAMILY COURT OF AUSTRALIA

SIEGEL & DANNER (COSTS) [2009] FamCAFC 126

FAMILY LAW - APPEAL – COSTS – No order as to costs – Error of principle – Costs certificate granted to the appellant

APPELLANT: MR SIEGEL

RESPONDENT: MS DANNER (CROFTON)

FILE NUMBER: BRC 3072 of 2008

APPEAL NUMBER: NA 1 of 2009

DATE DELIVERED: 11 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 11 June 2009

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 2 December 2008

LOWER COURT MNC: [2008] FMCAfam 1390

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Galloway

SOLICITOR FOR THE APPELLANT: Langehan Lawyers

RESPONDENT: Respondent appears on her own behalf

Orders

1. That the father be granted leave to appeal Orders 5 and 6 of the Orders of Federal Magistrate Cassidy made 2 December 2008.

2. That the appeal be allowed.

3. That Orders 5 and 6 of the Orders of Federal Magistrate Cassidy made 2 December 2008 be set aside.

4. That the Amended Application of the mother filed 6 August 2008 be remitted to the Federal Magistrates Court of Australia for rehearing by a Federal Magistrate other than Federal Magistrate Cassidy.

5. That there be no order as to costs.

6. The appellant is granted a certificate pursuant to s.9(1) of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 1  of 2009
File Number: BRC 3072  of 2008

MR SIEGEL

Appellant

And

MS DANNER (CROFTON)

Respondent

REASONS FOR JUDGMENT

1. The orders that I intend to make now are:

   ORDERS DELIVERED

   RECORDED  :  NOT TRANSCRIBED

2. I intend to make no order as to costs of the appeal, but I intend to grant to the appellant a certificate under the Federal Proceedings Costs Act.

3. Briefly, my reasons for those conclusions are, firstly, that I take no account of what happened or the reasons for what happened in relation to costs of the proceedings in the Court below.  Those matters do not, in my view, have any relevance to the question of the costs of the appeal, nor do I, in assessing the merits of the parties in relation to the appeal, take into account any view of the future of the application which has been remitted or the merits of its various components.

4. If I was otherwise minded to order costs in favour of the appellant, I would not be discouraged from doing so by anything about the financial circumstances of the mother.  In addressing the question of whether or not the mother ought pay the appellant's costs I have some hesitation because, whilst the appeal has substantially succeeded because, I think, of an error on the part of the Federal Magistrate, the case presented to the Federal Magistrate was not, in my view, one that made a path clearly correct.  There were some aspects of it, which I have commented on in the reasons in support of the order relating to the application for leave to appeal, such as the hypothetical nature of the position with regard to private school fees, which I think made the Federal Magistrate's task more difficult than it ought to have been.

5. In the end, however, I have concluded that there was an error of principle to which I do not see that either party contributed and in those circumstances conclude that neither party ought pay the costs in this particular instance.  Since the appeal has succeeded, it was really only the mother who was likely to be ordered to pay costs because of the result.

6. Having reached the conclusion that there should be no order as to costs and the conclusion, as I said, in relation to error of principle, it is a matter proper for the award of a certificate.  The mother has suggested that the father has succeeded only by, in effect, hiding behind technicalities.  I would not see the matter in that light.  There have been, as I have found, significant errors which work a substantial injustice and for that reason the appeal has succeeded.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate: 

Date:  15 July 2009