Burmingham v Colman Francis Moloney trading as Davies Moloney

REASONS FOR JUDGMENT 1 On 25 November 2011, this Court allowed an appeal (Burmingham v Colman Francis Moloney trading as Davies Moloney [2011] FCA 1490) from a judgment of the Federal Magistrates Court which upheld a sequestration order made by the Registrar against the estate of the appellant. 2 The appeal was allowed on the ground that the federal magistrate had wrongly determined that he could not go behind the judgment upon which the bankruptcy notice that found the sequestration order was based. Thus, the appeal was allowed on a question of law. 3 The respondent, Colman Francis Moloney who trades as Davies Moloney, now seeks a costs certificate under s 6(1) of the Federal Proceedings Costs (Act) 1981 (Cth), which provides as follows: Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. 4 The certificate that may be granted by this Court under s 6(1) is a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the respondent in respect of the costs incurred in relation to the appeal. The Federal Proceedings (Costs) Regulations 1981 (Cth) prescribe, in relation to Federal Court appeals, a maximum payment of $6000. 5 The respondent's application for a costs certificate has been listed since 2 December 2011. At 10.00 am this morning, an email was received from the appellant, David Burmingham, in which he sought an adjournment of the application so that he could make submissions opposing the grant of a certificate to the respondent. That application is refused. It was received far too late to be a proper basis for an adjournment. In any event, it is doubtful that he has any real interest in the application. 6 Mr Moloney filed written submissions and made oral submissions in support of the grant of the certificate. He argued that the appeal succeeded on a question of law and, being the unsuccessful respondent, he fell within the words of s 6(1) of the Act. 7 However, the authorities on the operation of the section demonstrate that the matter is not resolved simply by reference to the result of the appeal. Rather, the Court in exercising an unfettered discretion will take into account the context of the appeal. 8 In Bullock v Federated Furnishing Trade Society of Australasia and Ors (No 2) (1985) 58 ALR 373 at 375, the Full Court said: …it appears to us that in broad terms the Act is aimed at giving relief in cases where the decision turns on a question of law, as contrasted with the facts of the particular case, where that question of law might at least reasonably be resolved in different ways, so that in a sense the unsuccessful party may be thought to have suffered some "misfortune" owing to a doubt about the correct rule of law to be applied. 9 A party applying for a costs certificate must show that it is appropriate in all the circumstances for a certificate to be granted: Secretary, Department of Health and Ageing v Marnotta Pty Ltd (Receivers and Managers Appointed) [2006] FCA 5 at [8]. 10 The grant of a certificate might be justified where a new or novel point of law was involved: Repatriation Commission v Cornelius (2002) 69 ALD 250 at 251; [2002] FCA 930 at [12]. Where there is no doubt as to the correct rule of law to be applied it is inappropriate to grant a certificate: Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 203 at [6]. 11 The financial resources of an applicant and the fact that the funding for such a certificate must come from the public purse may also influence whether a certificate should be granted: Tyson v Tyson (No 2) (1993) 16 Fam LR 795 at 796; [1993] FLC 92-401 at 80, 111. 12 In the present case, the rule of law to be applied by the federal magistrate was obvious. The mistake was clear, and it was open to Mr Moloney to agree that the appeal be allowed. There was no evidence before the Court relating to the resources of Mr Moloney. The fact that the funds which would be payable under a certificate would come from the public purse also militates against the granting of a certificate in this case. 13 For those reasons, the application for a certificate is refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.