Sundar & Pigram
[2021] FedCFamC1F 167
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Sundar & Pigram [2021] FedCFamC1F 167
File number(s): BRC 5173 of 2018 Judgment of: HOGAN J Date of judgment: 28 October 2021 Catchwords: FAMILY LAW – COSTS – Application for a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the father engaged counsel on a direct access brief basis – Where counsel engaged by the father was hospitalised during the hearing – Where the hearing was unable to proceed on two days as a consequence – Where the hearing was not discontinued nor was a new hearing ordered. Legislation: Federal Proceedings (Costs) Act 1981 (Cth) Cases cited: Chimin & Fiato (No. 2) [2019] FamCA 183 Number of paragraphs: 16 Date of hearing: 11 September 2020 Place: Brisbane The Applicant: In person Counsel for the Respondent: Mr Jordan Solicitor for the Respondent: Mills Oakley Lawyers Counsel for the Independent Children's Lawyer: Ms Oakley Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 5173 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) BETWEEN: MR PIGRAM
ApplicantAND: MS SUNDAR
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
28 OCTOBER 2021
THE COURT ORDERS THAT:
1.The oral applications made by the Applicant and on behalf of the Respondent for the grant of costs certificates pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) are dismissed.
AND IT IS NOTED THAT:
A. There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sundar & Pigram has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
After the matter was raised by the Court, Counsel for the mother made an oral application pursuant to s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for a certificate in relation to his client’s costs. He was joined in such application by the father, who also contended that he had suffered a cost impost by virtue of what occurred on 4 and 7 September 2020.
The applications fall to be considered in the following circumstances.
The father and mother (and an Independent Children’s Lawyer) were engaged in parenting proceedings which ultimately occupied 11 days of hearing. The father was, ultimately, self-represented save for his engagement of Counsel to cross-examine the mother.
Counsel engaged by Mr Pigram on a direct access brief basis to cross-examine the mother was admitted to hospital in the early hours of Friday, 4 September 2020. Consequently, he was unable to appear for the father on Friday, 4 September 2020. Whilst a number of avenues were considered in the hope of ensuring that no Court time was lost, the reality was that Counsel’s inability to appear on the father’s behalf meant that there was no alternative but to adjourn that day at about 10.12 am until the following Monday (7 September 2020).
There is no doubt at all that Counsel instructed by Mr Pigram was not at fault; further, there is no doubt at all that Mr Pigram was not at fault. Rather, the loss of the day was simply the inevitable consequence of the unforeseen ill-health of Counsel engaged by Mr Pigram to
cross-examine the mother.
After Counsel engaged by Mr Pigram was diagnosed with a chronic condition, he was discharged from hospital on Saturday, 5 September 2020. Based on medical advice provided to him, Counsel understood that he would be able to cross-examine the mother on Monday, 7 September 2020.
Unfortunately, at 8.35 am on Monday, 7 September 2020, Counsel engaged by Mr Pigram emailed the Court to advise of his inability to attend Court that day to cross-examine the mother on Mr Pigram’s behalf – this was a consequence of his continued ill-health, which he said he thought was likely to have been a side-effect of the medication recently prescribed to him.
Again, though it was not the fault of either Counsel or Mr Pigram, there was no option but to stand the trial over to the following day, Tuesday, 8 September 2020.
The submissions made by Counsel for the mother in support of the application included that the trial was unable to proceed as listed on 4 and 7 September 2020 as a consequence of the unfortunate illness suffered by Counsel engaged by Mr Pigram and that, consequently, the mother was, through no fault of her own, put to not insignificant additional cost.
In seeking a certificate, Mr Pigram submitted that the circumstances outlined above also had a financial impost for him, in that he was required to pay a daily setting down fee of $875.00 for each of the days on which the matter could not proceed due to his Counsel’s inability to appear.
Applicable legislation
Section 10 of the Costs Act applies to the Family Court.[1]
[1] Federal Proceedings (Costs) Act 1981 (Cth) s 10(1).
Section 10(3) of the Costs Act is in the following terms:
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.
Applicable authority and consideration
I adopt the recounting of authority I outlined at paragraphs [6]–[10] and [15] in Chimin & Fiato (No. 2).[2]
[2] [2019] FamCA 183 (“Chimin”).
Despite having invited the applications currently the subject of consideration, further reflection has led me to conclude that the circumstances of Chimin are distinguishable from those which arose in the present case: in Chimin, I considered that what occurred was akin to the discontinuance of the proceedings and the commencement of a “new hearing”, albeit almost immediately; further reflection about what happened in the present case has resulted in my conclusion that what happened was simply that the hearing which was underway had to be adjourned as outlined above because of the ill-health of Counsel engaged by Mr Pigram.
Whilst I am easily satisfied that the adjournment of the hearing was not attributable to the neglect, default or improper act of any party to the proceedings – or to any act of similar kind by Counsel engaged by Mr Pigram – I am not persuaded, as I was in Chimin, that the hearing before me was in fact discontinued or that a new hearing was ordered.
For the reasons outlined above, I decline to accede to the applications made on behalf of the mother and by the father for the grant of a costs certificate and make an order in the terms set out at the commencement of these Reasons.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 28 October 2021
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