Parties Seek Grant of Cost Certificates

Hakim & Salim (No 2) [2022] FedCFamC1A 56 (11 May 2022)

On 28 February 2022, the Court granted the appellant leave to appeal property orders made by the primary judge.  The appellant and the first respondent sought that they each be granted cost certificates.  The Court, in determining whether it is appropriate for the appellant to be granted a costs certificate, considered the preconditions for a grant of a cost certificate.

Facts:

On 28 February 2022 the Court granted the appellant leave to appeal Orders 2 and 8 of orders made by the primary judge on 9 July 2021 and allowed the appeal in respect of the same by: (a) amending Order 2 – by striking out the words “with the categorisation of such sum reserved to the agreement between the parties or final hearing”; and (b) setting Order 8 aside.  Order 8 was set aside on the basis that the appellant was denied procedural fairness in respect of it.

Order 2 was amended on the basis that, having accepted that the primary judge had exercised the power to make an interim property order by way of partial property settlement, the Court concluded that an error occurred when the characterisation of the $100,000 ordered to be paid to the first respondent was reserved to the agreement of the parties or the final hearing.  The Court otherwise dismissed the appeal and directed that the issue as to the costs of the appeal be determined by way of written submissions.  Submissions from the appellant and the first respondent have now been received. 

The second respondent has not filed any submissions.  The appellant submitted that (a) having regard to the orders made on 28 February 2022, an order for costs was justified in the circumstances of the case, and (b) no order for costs should be made against the first respondent, and (c) given the findings made, the Court would be persuaded to exercise the discretion in favour of granting him a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).

The first respondent submitted that, given that the appellant: (a) had been unsuccessful in his attempt to have this Court set aside Orders 3, 4, and 7 of the 9 July 2021 order; and (b) had failed in his attempt to set aside the obligation to make the payment ordered by Order 2 of the 9 July 2021 order; and (c) had only been partially successful on the appeal and had succeeded, in part, on the basis of an issue of procedural fairness, the Court would be persuaded that the proper course would be to exercise the discretion in favour of granting costs certificates to both her and the appellant.

Issue:

Whether or not the Court should grant cost certificates to the parties. 

Applicable law:

Family Law Act 1975 (Cth) - pursuant to which publication of this judgment by this Court under the pseudonym Hakim & Salim (No 2) has been approved.

Analysis:

The three preconditions for a grant of costs certificate, namely, that there is a “federal appeal”, that the appeal succeeded on a question of law and that the relevant Court should have heard the appeal – are satisfied in this case.  However, neither the satisfaction of the preconditions nor general agreement between parties that each should be granted a costs certificate under the Costs Act fetters this Court’s discretion to determine whether it is of the opinion, in the circumstances of this case, that it would be appropriate for the Attorney-General to authorise payment under the Costs Act to each of the parties in respect of the costs each have incurred in relation to the appeal.  The appellant was substantially unsuccessful in the appeal and, in particular, failed in his attempt to set aside that aspect of Order 2 of the 9 July 2021 order that required him to pay $100,000 to the first respondent. 

Conclusion:

The appellant’s application for a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.  The Court grants to the first respondent a costs certificate pursuant to the provisions of 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 payment under that Act to the first respondent in respect of the costs incurred by her in relation to the appeal.