Zaruba and Zaruba - [2014] FamCAFC 237

FAMILY COURT OF AUSTRALIA

ZARUBA & ZARUBA

[2014] FamCAFC 237

FAMILY LAW – APPEAL – COSTS – Where there was not a full hearing of the appeal because the parties agreed to the matter being remitted for rehearing – Where the parties applied for costs certificates pursuant to the Federal Proceedings (Costs) Act 1971 (Cth) – Whether there was an error of law at first instance so as to justify the granting of costs certificates – There was an error of law – Costs certificates granted.

Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 8, s 9

Allesch v Maunz (2000) 203 CLR 172

Black & Black (Cost Certificates) [2007] FamCA 1252
Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Ms Zaruba

RESPONDENT:

Mr Zaruba

FILE NUMBER:

PTW

2392

1996

APPEAL NUMBER:

2011

DATE DELIVERED:

29 October 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray, Ryan & Moncrieff JJ

HEARING DATE:

29 October 2014

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

4 November 2011

LOWER COURT MNC:

[2013] FCWAM 8

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hedges

SOLICITOR FOR THE APPELLANT:

James Chong Lawyers

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

Orders

The time within which the respondent had to file his application to adduce further evidence be extended to 9 October 2014.
The appeal be allowed (it is noted in connection with this order that this appeal was conceded by the respondent husband).
The cross-appeal be dismissed.
The orders made by Magistrate Monaghan in the Magistrates Court of Western Australia on 4 November 2011 be discharged.
The proceedings be remitted for hearing before a Magistrate of the Magistrates Court of Western Australia, other than Magistrate Monaghan, with a recommendation for the proceedings to be heard with expedition.
There be no order as to the costs of the appeal or the cross-appeal.
The Court grants to the appellant wife a costs certificate pursuant to 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 in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent husband a costs certificate pursuant to 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 in respect of the costs incurred by him in relation to the appeal (it being noted that the costs incurred by the respondent in relation to the preparation of the supplementary appeal books are costs in the appeal).
The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zaruba and Zaruba

Details

AGLC: Zaruba and Zaruba [2014] FamCAFC 237
Case: [2014] FamCAFC 237
Decision Date: 29 October 2014

CaseChat Overview and Summary

In the case of Zaruba and Zaruba, the appellant wife and respondent husband were engaged in a legal dispute following a decision made by Magistrate Monaghan in the Magistrates Court of Western Australia. The wife appealed against certain orders made by the Magistrate, and the husband cross-appealed against other orders. The appeal and cross-appeal were heard by the Federal Court of Australia. The central issues before the court were the validity of the Magistrate's orders and the appropriateness of extending the time for the respondent to adduce further evidence.

The court examined the merits of the appeal and cross-appeal, focusing on whether the Magistrate had correctly exercised his discretion and whether the extension of time for the respondent to present further evidence was justified. Given that the appeal was conceded by the respondent, the court found that the appeal should be allowed and the Magistrate's orders should be discharged. The court also determined that the cross-appeal should be dismissed. The court concluded that the proceedings should be remitted for a hearing before a different Magistrate, with a recommendation for expedition. Additionally, the court issued costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth), allowing for potential reimbursement of costs incurred by both parties in relation to the appeal and the rehearing of the proceedings.

In summary, the court allowed the appeal, dismissed the cross-appeal, and remitted the proceedings for a new hearing before a different Magistrate. The court also extended the time for the respondent to adduce further evidence and issued multiple costs certificates, permitting potential reimbursement of costs incurred by both parties.

Orders

Orders of the court

The time within which the respondent had to file his application to adduce further evidence be extended to 9 October 2014.

The appeal be allowed (it is noted in connection with this order that this appeal was conceded by the respondent husband).

The cross-appeal be dismissed.

The orders made by Magistrate Monaghan in the Magistrates Court of Western Australia on 4 November 2011 be discharged.

The proceedings be remitted for hearing before a Magistrate of the Magistrates Court of Western Australia, other than Magistrate Monaghan, with a recommendation for the proceedings to be heard with expedition.

There be no order as to the costs of the appeal or the cross-appeal.

The Court grants to the appellant wife a costs certificate pursuant to 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 in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent husband a costs certificate pursuant to 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 in respect of the costs incurred by him in relation to the appeal (it being noted that the costs incurred by the respondent in relation to the preparation of the supplementary appeal books are costs in the appeal).

The Court grants to each of the parties a costs certificate pursuant to 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 of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.