Telito & Glass (No 2)

Case [2024] FedCFamC2F 841


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Telito & Glass (No 2) [2024] FedCFamC2F 841   

File number(s): SYC 955 of 2024
Judgment of: JUDGE MURDOCH
Date of judgment: 2 July 2024
Catchwords:  FAMILY LAW – COSTS – Application for the Respondents to pay the Applicants’ costs of an Application for Review - where the Application for Review was wholly unsuccessful – where reasons for the SJR’s judgment were reserved and never delivered – where it is submitted that receiving reasons may have discharged the need for a Review and may have assisted the parties in reaching further agreement – where exercising a delegated judicial function carries with it an obligation to act judicially and provide reasons - where SJR failed to act in accordance with the delegated judicial function – where costs sought by the applicants are not sufficiently particularised – orders made for the respondents to pay a proportion of the applicants’ costs as assessed at scale
Legislation:

Family Law Act 1975 (Cth) ss 117(1), 117(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 1.04, 12.13, 12.17

Cases cited:

Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Kohan & Kohan (1993) FLC 92-340

Latoudis v Casey (1990) 170 CLR 534

Lenova & Lenova (Costs) [2011] FamCAFC 14

Northern Territory v Sangare (2019) 265 CLR 164

Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4

Division: Division 2 Family Law
Number of paragraphs: 44
Date of last submission/s: 28 June 2024
Date of hearing: 2 July 2024
Place: Sydney
Solicitor for the Applicants: Pinnacle Lawyers
Solicitor for the Respondents: Caldwell Martin & Cox

ORDERS

SYC 955 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR TELITO

First Applicant

MS TELITO

Second Applicant

AND:

MS GLASS

First Respondent

MR GLASS

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

2 JULY 2024

THE COURT ORDERS THAT:

1.Within 28 days the respondents pay the applicants’ costs of and incidental to the Application for Review fixed in the sum of $3,000 inclusive of GST.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE MURDOCH

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Telito & Glass (No 2) [2024] FedCFamC2F 841
Case
[2024] FedCFamC2F 841
Decision Date

CaseChat Overview and Summary

In the case of Telito & Glass (No 2), the applicants, Mr and Ms Telito, sought costs from the respondents, Ms and Mr Glass, in relation to an unsuccessful Application for Review. The dispute arose out of an existing family law matter before the Federal Circuit and Family Court of Australia, Division 2. The applicants argued that the Senior Judicial Registrar (SJR) had failed to act in accordance with a judicial obligation to provide reasons for the decision, which in turn might have assisted in reaching a settlement. This omission was considered a breach of the SJR's delegated judicial function.

The court was required to determine whether the applicants were entitled to the costs of the Application for Review, despite its failure to succeed. Additionally, the court had to consider whether the SJR's failure to provide reasons constituted a breach of judicial duty, and if this breach warranted an order for the respondents to pay the applicants' costs. The court also needed to assess the particularity of the costs sought by the applicants to ensure they were justifiable and proportionate.

The court found that the SJR had indeed failed to provide reasons for the decision, which was a breach of the judicial function. However, the court also noted that the reasons for the judgment were reserved and never delivered, and the applicants did not sufficiently particularise the costs they sought. Considering these factors, the court ordered the respondents to pay a proportion of the applicants' costs, as assessed at scale. The specific sum of $3,000 inclusive of GST was fixed as the amount to be paid within 28 days.

In summary, the court recognised the importance of providing reasons in judicial decisions, especially in family law matters where such transparency might facilitate settlement. However, the applicants' failure to adequately particularise their costs request and the overall unsuccessful outcome of the Application for Review led to a partial costs order in favour of the applicants.

Orders

Orders of the court

SYC 955 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR TELITO

First Applicant

MS TELITO

Second Applicant

AND:

MS GLASS

First Respondent

MR GLASS

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

2 JULY 2024

THE COURT ORDERS THAT:

1. Within 28 days the respondents pay the applicants’ costs of and incidental to the Application for Review fixed in the sum of $3,000 inclusive of GST.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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