TIZANI & TIZANI
[2015] FamCAFC 26
•27 February 2015
FAMILY COURT OF AUSTRALIA
| TIZANI & TIZANI | [2015] FamCAFC 26 |
| FAMILY LAW – APPEAL – Application for security for costs – Where the husband appeals against the trial judge’s order to pay the wife $20,000 as security for her costs in property proceedings brought by the husband pursuant to s 79A – Where the respondent wife conceded that the appeal should be allowed – Where the matter is remitted for re-hearing in the Federal Circuit Court – Where both parties seek cost certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Certificates ordered – Appeal allowed. |
| Family Law Act 1975 (Cth) ss 79A, 117 Federal Proceedings (Costs) Act 1981 (Cth) ss 3(1), 6(1), 8, 9(1)(a) |
| B & B (Costs Certificates) (2007) FLC 93-339 Cramer v Davies (1997) 72 ALJR 146 |
| APPELLANT: | Mr Tizani |
| RESPONDENT: | Ms Tizani |
| FILE NUMBER: | SYC | 7993 | of | 2007 |
| APPEAL NUMBER: | EA | 105 | of | 2014 |
| DATE DELIVERED: | 27 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 24 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 June 2014 |
| LOWER COURT MNC: | [2014] FCCA 876 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Alexander |
| SOLICITOR FOR THE APPELLANT: | Mark Rahme & Associates |
| SOLICITOR FOR THE RESPONDENT: | Mr Brown of Brown The Family Lawyers |
Orders
The appeal against the orders of Judge Monahan made on 11 June 2014 be allowed.
Set aside his Honour’s orders of 11 June 2014.
Remit the wife’s application for security for costs to the Federal Circuit Court to be heard by a Judge other than Judge Monahan.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by her in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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 of the parties in respect of the costs incurred by the appellant and respondent in relation to the re-hearing of the application.
NOTATION
Request that the Federal Circuit Court give to the application for security for costs such expedition as is possible.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tizani & Tizani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 105 of 2014
File Number: SYC 7993 of 2007
| Mr Tizani |
Appellant
And
| Ms Tizani |
Respondent
REASONS FOR JUDGMENT
Mr Tizani (“the husband”) appeals against an order made by
Judge Monahan of the Federal Circuit Court on 11 June 2014. The order required the husband to pay to Ms Tizani (“the wife”) the sum of $20,000 as security for her costs in property proceedings brought by the husband pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).
At the appeal hearing, the respondent conceded that the appeal should be allowed and orders to that effect were made and the matter remitted to be reheard in the Federal Circuit Court.
Both the appellant and the respondent sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) in relation to both the appeal and the re-hearing of the wife’s application.
The decision of B & B (Costs Certificates) (2007) FLC 93-339 concerns the granting of costs certificates in an appeal. That decision set out three matters of which, by reference to the Costs Act, the court must be satisfied before a Costs Certificate pursuant to either s 6 or s 9 of that Act is issued to, respectively, a respondent or an appellant:
·The existence of a Federal Appeal;
·That the appeal has succeeded on a question of law; and
·That the court concerned should have heard the appeal.
Two of those three conditions are plainly met here. The appeal is clearly a “Federal Appeal” (see paragraph (j) of the definition of “Federal Appeal” in s 3(1) of the Costs Act).
Despite the truncated nature of the proceedings I have “heard the appeal”. I place particular reliance in that respect upon Kirby J’s broad interpretation of that expression in Cramer v Davies (1997) 72 ALJR 146, that the requisite hearing was “no more than having the matter listed before the courts so that it may dispose of the appeal in a public and formal way”. The hearing here was about to commence when the parties reached agreement as to its disposition.
The third requisite condition – that the appeal which was allowed by consent nevertheless “succeed[ed] on a question of law” – requires consideration.
The Notice of Grounds of Appeal raises four grounds of challenge to
his Honour’s orders. Ground 1 contends that his Honour failed to identify the basis for determining to make the order for security for costs. Ground 2 contends that the judge, in making the orders, failed to give sufficient weight to the evidence that an order for security for costs would stifle the litigation. In considering this aspect, namely that the appeal has succeeded on a question of law, it is unnecessary to refer to the balance of the grounds of appeal.
As to ground 1, although his Honour set out at some length the law relevant to the issue of security for costs and sets out the submissions of the husband and wife in relation to the matters necessary to be considered on such an application, his Honour did not indicate his conclusions in relation to those matters nor did he indicate why he determined to make the order. Further, in relation to ground 2, while his Honour at [34] under the heading “Whether order for costs would be oppressive or stifle the litigation” set out the husband’s contention that the making of such an order would have the effect of staying the litigation, his Honour made no finding in that regard.
Thus both appeal grounds are established and on these bases alone, the appeal must succeed.
The lawyer representing the wife, being very experienced, recognised the strength of the grounds and reached agreement with counsel for the husband as to the disposition of the appeal.
Nothing suggests that the judge was led into error by any actions or inactions on the part of any of the parties, either themselves or through their legal practitioners.
I am well satisfied that the appeal succeeds on a question of law within the meaning of, respectively, s 6(1) and s 9(1)(a) of the Costs Act.
Section 9 of the Costs Act imposes an additional requirement if an appellant is to receive a certificate. In addition to the matters earlier referred to, an appellant must satisfy the Court that, “in accordance with s 117 of the Act, each party to the appeal bears his or her own costs”. In this matter, neither party sought an order for costs against the other, nor is this a matter in which that would be an appropriate order.
Accordingly, I am of the view that the preconditions essential to the issue of certificates pursuant to ss 6 and 9 respectively of the Costs Act are met in this case and I will order accordingly.
Given that the wife’s application for security for costs will be remitted to the Federal Circuit Court for re-hearing and since the husband is now represented, I will also order a costs certificate pursuant to s 8 of the Costs Act for both parties in relation to the re-hearing.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
27 February 2015.
Associate:
Date: 27 February 2015
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