SMEETS & SIMPKIN
[2019] FamCAFC 104
•17 June 2019
FAMILY COURT OF AUSTRALIA
| SMEETS & SIMPKIN | [2019] FamCAFC 104 |
| FAMILY LAW – APPEAL – COSTS – Where the respondent husband concedes the appeal – Where it is clear that the primary judge’s reasons for making the orders are insufficient – Where neither party seeks an order for costs of the appeal proceedings pursuant to s 117 of the Act – Where there are errors of law, as regards inadequacy of reasoning, sufficient to allow the appeal and to justify the issuing of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Appeal allowed. |
| Family Law Act 1975 (Cth) s 117 Federal Proceedings (Costs) Act 1981 (Cth) |
| B & B (Costs Certificates) (2007) FLC 93-339; [2007] FamCA 1177 London Scottish Benefit Society v Chorley (1884) 13 QBD 87 |
| APPELLANT: | Ms Smeets |
| RESPONDENT: | Mr Simpkin |
| FILE NUMBER: | BRC | 4678 | of | 2008 |
| APPEAL NUMBER: | NOA | 85 | of | 2018 |
| DATE DELIVERED: | 17 June 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ryan & Kent JJ |
| HEARING DATE: | 17 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 September 2018 |
| LOWER COURT MNC: | [2018] FCCA 2504 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page QC on a direct brief |
| COUNSEL FOR THE RESPONDENT: | Mr Baston on a direct brief |
Orders
The appeal from the orders of Judge Egan made on 7 September 2018 be allowed.
The orders made by Judge Egan on 7 September 2018 be set aside.
The application for costs be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Egan.
The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate 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 wife in respect of the costs incurred by her in relation to this appeal.
The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by him in relation to this appeal.
The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Smeets & Simpkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 85 of 2018
File Number: BRC 4678 of 2008
| Ms Smeets |
Appellant
And
| Mr Simpkin |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Kent J
This is the appeal of Ms Smeets (“the wife”) from the orders of Judge Egan made on 7 September 2018 with respect to costs of parenting proceedings in the Federal Circuit Court of Australia (“the FCC”).
The wife’s appeal was opposed by the husband, Mr Simpkin (“the husband”) but, as the hearing of the appeal progressed, his position revised to one of consenting to the appeal being allowed, and for the proceedings, that is, the application for costs, to be remitted to a judge of the FCC for rehearing, being a judge other than the primary judge.
Both parties seek costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) in respect of the appeal and the rehearing.
In order to allow the appeal and grant such certificates it is necessary for this Court to be satisfied of two things; first, that there is no order for costs of the appeal being made in favour of a party, pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”) and, second, that the appeal is being allowed by reason of error of law on the part of the primary judge: B & B (Costs Certificates) (2007) FLC 93-339.
Neither party seeks an order for costs of the appeal proceedings pursuant to s 117 of the Act.
Briefly, without being exhaustive as to errors of law, as the hearing of the argument on the appeal progressed, it is clear that his Honour’s reasons for making the orders are insufficient in terms of explanation for both an order for costs, but more particularly, for orders on an indemnity basis, and what was meant by “indemnity” in the circumstances here.
Moreover, the party and party costs orders his Honour made (Orders 2 and 4) awarded costs on the Family Court of Australia scale of costs, when it is the fact that the proceedings occurred in their entirety in the FCC. No explanation can be found within his Honour’s reasons for that.
It was necessary for his Honour to engage with the so-called Chorley[1] exception insofar as the husband, a solicitor, sought costs with respect to his own
self-representation at some stages of the proceedings. Again, it is unknown what his Honour’s attitude to that was because the order, simply, is expressed to be an order for costs to be assessed on the indemnity basis when his Honour had before him specific details of the component of the so-called Chorley exception costs within the overall claim for costs. The reasons do not illuminate whether or not his Honour intended to include the husband’s claim for costs referable to his
self-representation.
[1]London Scottish Benefit Society v Chorley (1884) 13 QBD 87 (“Chorley”).
I am therefore satisfied that there are errors of law, as regards inadequacy of reasoning, sufficient to allow the appeal and to justify costs certificates pursuant to the Costs Act, and I would make the usual orders for costs certificates for both parties.
I would therefore order:
(1)That the appeal from the orders of Judge Egan made on 7 September 2018 be allowed.
(2)That the orders made by Judge Egan on 7 September 2018 be set aside.
(3)That the husband’s application for costs in respect of the parenting proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Egan.
(4)That each party receive certificates in the usual terms pursuant to the Costs Act both in respect of the appeal and the rehearing of the costs application.
Ryan J
I agree with the reasons given by Justice Kent and the orders he proposes.
Strickland J
I too agree with the reasons delivered by Justice Kent and the orders proposed.
The orders of the Court will be:
(1)The appeal from the orders of Judge Egan made on 7 September 2018 be allowed.
(2)The orders made by Judge Egan on 7 September 2018 be set aside.
(3)The application for costs be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Egan.
(4)The Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate 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 wife in respect of the costs incurred by her in relation to this appeal.
(5)The Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by him in relation to this appeal.
(6)The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.
I certify that the preceding thirteen (13) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Ryan & Kent JJ) delivered on 17 June 2019.
Associate:
Date: 18 June 2019
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