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[1993] FamCA 131
appellant. Orders made: (1) Wife's application for costs dismissed; (2) Husband granted Costs Certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth); (3) Wife granted Costs Certificate under...
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The Full Court dismissed the wife's application for costs and granted both parties Costs Certificates under the Federal Proceedings (Costs) Act. The Court found that since the appeal succeeded due to an error of law by the trial Judge, there was no basis to order the partially successful husband to pay the wife's costs. Both parties were entitled to certificates because the appeal was necessitated by the trial Judge's error rather than any unreasonable conduct by the parties.
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Mr Trench of Counsel (instructed by Paul K. Bell and Co, Solicitors), for Appellant/Husband
Mr Ashes of Counsel (instructed by Gulley Helene Bullock Scerri, Solicitors), for Respondent/Wife
NICHOLSON CJ, LINDENMAYER AND McGOVERN JJ In this matter both parties have sought certificates under the Federal Proceedings (Costs) Act, and the wife has also sought costs against the husband, in the event that the Court determines not to order the issue of a certificate, which the husband resists.
2. In our opinion, there is no basis upon which the partially successful appellant husband should be ordered to pay the respondent wife's costs of the appeal.
3. In our view, the appeal was clearly brought about by an error of law on the part of the trial Judge and it succeeded on a question of law. Having regard to all of the circumstances of the case we think it appropriate that a Costs Certificate under the Federal Proceedings (Costs) Act be given to both parties.
1. That the wife's application for costs be dismissed.
2. That the appellant husband be granted a costs certificate,
pursuant to s.9 of the Federal Proceedings (Costs) Act, 1981,
being a certificate stating that, in the opinion of the Court, it
would be appropriate for the Attorney-General to authorize a
payment under that Act to the appellant in respect of the costs
incurred by him in relation to the appeal.
3. That the respondent wife be granted a costs certificate, pursuant
to s.6 of the said Act, being a certificate stating that, in the
opinion of the Court, it would be appropriate for the
Attorney-General to authorize a payment under that Act to the
respondent in respect of the costs incurred by her in relation to
the appeal.
Orders made: (1) Wife's application for costs dismissed; (2) Husband granted Costs Certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth); (3) Wife granted Costs Certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth).