Zaruba and Zaruba
[2014] FamCAFC 237
•29 October 2014
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 |
| APPELLANT: | Ms Zaruba |
| RESPONDENT: | Mr Zaruba |
| FILE NUMBER: | PTW | 2392 | of | 1996 |
| APPEAL NUMBER: | WA | 33 | of | 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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zaruba & Zaruba 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 PERTH |
Appeal Number: WA 33 of 2011
File Number: PTW 2392 of 1996
| Ms Zaruba |
Appellant
And
| Mr Zaruba |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Thackray J
Before the Full Court today is the amended notice of appeal filed by Ms Zaruba on 16 April 2014 and the notice of cross-appeal filed by Mr Zaruba on 2 April 2014. Both of the notices relate to the orders made by Magistrate Monaghan in the Magistrates Court of Western Australia.
The matter was heard by his Honour on 22 April 2010 and both parties were self-represented. The decision was reserved. Much later, on 4 November 2011, his Honour made the orders which are the subject of this appeal and cross-appeal. The orders required the husband to pay the wife an amount of $75,000, upon payment of which the husband was to receive the wife’s interest in a jointly owned property in Suburb C. Regrettably, the reasons were not published until 29 January 2013, almost three years after the matter was heard.
It has taken a long time for the matter to come before the Full Court, since there was a necessity to await the reasons and there have been some procedural irregularities in the conduct of the appeal proceedings.
In the course of discussions this morning, counsel for the appellant very properly and astutely acknowledged that if the appeal were allowed, it would be “difficult” for the Full Court to re-exercise the discretion and arrive at an outcome more favourable to the appellant. We allowed counsel an opportunity to take further instructions and we have been informed that the appellant now recognises it would be necessary for us to remit the matter for rehearing. Counsel for the appellant accordingly foreshadowed amending the orders sought in the event the appeal was allowed.
Speaking for myself, this was an entirely appropriate course for counsel to adopt. If there was merit in the grounds, particularly those relating to a failure to make findings of fact, then a rehearing would appear to be inevitable; and, in my view, would have become inevitable when the husband was given the opportunity to adduce further evidence, which he would be entitled to do in accordance with the principles in Allesch v Maunz (2000) 203 CLR 172.
In his cross-appeal, the husband also seeks a retrial, even though it is apparent that he too would have liked the Full Court to correct what he perceives to be errors on the part of the Magistrate and, in the process, to finalise the litigation.
In these circumstances, unusually, both parties now seek the same relief: both seek to have the orders of the Magistrate set aside and both seek a rehearing. It is therefore unnecessary for us to proceed to hear the appeal. We can make an order by consent allowing the appeal, and we can at the same time dismiss the cross-appeal.
In making those orders, it would be my intention that we recommend that the Magistrates Court endeavour to ensure that the rehearing occurs as promptly as practicable, given the already unacceptable delay in resolution of this matter. I have indicated to the parties in the course of this morning’s hearing that if they are ready to proceed, I understand the Court would be likely to be able to accommodate a hearing in the earlier months of 2015.
The other issue which requires determination is the question of costs relating to the appeal. There is no application before the Court for either party to pay the other party’s costs, and quite properly so. The only issue is whether certificates should be granted to the parties pursuant to the Federal Proceedings (Costs) Act1981 (Cth) (“the Costs Act”).
Counsel for the appellant properly raises a question as to whether the Court has the capacity to grant such certificates in circumstances where there has not been a full hearing of the matter, and therefore no judgment of the Court indicating that the appeal has been allowed on a question of law.
This issue has arisen on a number of occasions before the Full Court. For example, it was considered by Bryant CJ, Finn & Boland JJ in Black & Black (Cost Certificates) [2007] FamCA 1252. Their Honours set out the relevant provisions of the Costs Act and referred to the remarks of Kirby J in Cramer v Davies (1997) 72 ALJR 146, where his Honour identified the following three pre-conditions for the grant of a costs certificate under s 6 of the Costs Act:
·the existence of a “Federal appeal”;
·the necessity to establish that the appeal has succeeded on a question of law; and
·the requirement that the Court concerned should have heard the appeal.
For the reasons that were explained in Black & Black and the cases that have followed it, notwithstanding that there has not been full argument of the present matter, there is no doubt that this appeal has been heard. Not only have we had the proceedings this morning, but we have had the benefit of the written submissions that have been provided by both parties.
The appeal is also clearly a Federal appeal coming under the provisions of the Family Law Act1975 (Cth), so the only remaining issue to consider is whether the appeal has succeeded on a question of law. In order to determine that, it is necessary to say something in relation to the merits of the matter.
I look to the grounds set out in the amended notice of appeal and, although we have not formally granted leave to amend, to the two proposed additional grounds handed up by counsel for the appellant today. In my view, counsel for the appellant is correct in saying that the additional grounds are not necessarily new grounds; they simply better enunciate complaints that are already contained in the notice of appeal.
It is unnecessary to consider the matter in great length, but in my view, there is merit in some of the appellant’s complaints. For example, I was unable to see any basis in the evidence for the finding that there was a contribution by the husband in relation to the maintenance and preservation of the property after October 2005. I also find merit in some of the complaints relating to the adequacy of reasons for findings of fact and the overall process of reasoning. Overlaying all of this is the unease that arises from the reasons being published almost three years after the judgment.
In fairness to the Magistrate, I should say a couple of things about this long delay. First, this was a difficult matter for his Honour to determine, given that the case, with all due respect to the parties, was poorly prepared and presented. There was no legal representation and his Honour effectively had to conduct the hearing without any assistance, which he did in an exemplary manner in my view. Furthermore, although the delay is most unsatisfactory, in reading his Honour’s reasons against the transcript, nothing jumps out to indicate that the delay in itself resulted in any of the errors which I, with respect to his Honour, perceive in the reasons for judgment.
I am satisfied that this appeal has been allowed on the basis of errors of law and in those circumstances the opportunity to grant a costs certificate arises. Kirby J’s remarks in Cramer v Davies were directed to s 9 of the Costs Act, but the Full Court has said that similar considerations apply in relation to s 6, which is also relevant to the applications before the Court today.
The final consideration is whether to grant costs certificates for the rehearing of the matter, in addition to the costs of the appeal. At first instance, neither party was represented, but they would have incurred costs in the preparation of the matter, such as photocopying. The parties will incur further costs in preparing for the rehearing and they may seek to have representation at it, which would undoubtedly assist the magistrate hearing the matter. Whilst it may not be a relevant consideration, it is noteworthy that the parties have experienced an inordinate delay and a certificate for the rehearing may provide some solace in this respect.
For those reasons, I propose the following orders:
·The appeal be allowed.
·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 rehearing in the Magistrates Court of Western Australia, with a recommendation that the matter be given expedition.
·There be costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act1981 (Cth) in relation to both the appeal and the rehearing.
·The appellant’s costs associated with the preparation of the additional or supplementary appeal books be treated as costs in the appeal.
Ryan J
I agree with reasons of the presiding judge and the orders which he proposes. I wish to add a couple of my own comments.
In my view, the wife’s appeal having been allowed and the orders the subject of the appeal and the cross-appeal having been set aside, the husband’s cross-appeal becomes moot and does not require consideration by this Court. I agree with the presiding judge that the husband’s cross-appeal should therefore be dismissed.
In relation to the recommendations for costs certificates in favour of the appellant, it is necessary for an appellant to also establish that there will be no order as to costs in their favour. Quite properly, the appellant has not sought an order for costs against the respondent, presumably because it’s well appreciated that an order for costs against the respondent in this appeal would not be successful. I would, however, add to the orders proposed an order that there be no order as to costs in the appeal.
Moncrieff J
I agree with the remarks of both the presiding judge and Ryan J.
I agree with the orders proposed by the presiding judge and the additional order proposed by Ryan J.
Thackray J
I thank my colleague Ryan J for drawing attention to the necessity for there to be an order that there be no order as to costs. I agree with her Honour that is an appropriate further order to make and I also agree with her Honour’s reasons.
For all of those reasons, these will be the orders of the Court:
(1)The time within which the respondent had to file his application to adduce further evidence be extended to 9 October 2014.
(2)The appeal be allowed (it is noted in connection with this order that this appeal was conceded by the respondent husband).
(3)The cross-appeal be dismissed.
(4)The orders made by Magistrate Monaghan in the Magistrates Court of Western Australia on 4 November 2011 be discharged.
(5)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.
(6)There be no order as to the costs of the appeal or the cross-appeal.
(7)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.
(8)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).
(9)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.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 29 October 2014, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 9 December 2014
0
2
1