Pursuant to section 10 of the Federal Proceedings (Costs) Act 1981, the Family Court or Federal Circuit Court have the power to make an order that the Commonwealth Attorney-General (A-G) be authorised to pay a litigant’s costs thrown away through no fault of their own. Such an order is known as a ‘Cost Certificate – Incomplete Proceedings’.
Our family lawyer Rebecca Parry, was recently successful in obtaining a costs certificate for one of her clients who was the Respondent Husband in a family law property settlement dispute before the Federal Circuit Court (FCC). The Judge hearing her application for a costs certificate deemed it appropriate that the A-G authorise and pay the Respondent’s costs lost or thrown away when his colleague, a different Judge of the Court discontinued the proceedings and adjourned the property settlement trial to a ‘date to be fixed’.
In this case, Rebecca’s client was out of pocket $12,457.50 as a result of the Judge’s discontinuance of the trial.
Despite an Order made earlier in 2018 fixing a trial date, the Judge hearing the matter refused to keep or hear the matter on the allocated day. That is, notwithstanding the Judge, both parties and their legal representatives (solicitors and barristers) being available on the date allocated. Over the course of the ‘trial week’ short appearances each day occurred, for varying periods of time, some without the parties present or the other legal representatives. Roll forward to the Friday when the only remaining matter to be determined was this matter when at 12.21pm, the Judge declares inter alia, there is insufficient time to hear the matter as he needs to return to Brisbane. The Judge adjourns the hearing of the competing property matters to a ‘date to be fixed’.
There is longstanding authority on applications for costs certificates, one of which is Coulson v Gosford Meats Pty Ltd (1985) 7 FCR 106. In this case, the parties appeared at Court on their allocated trial date, only to be told that there was no Judge available to hear the matter. The parties were further advised that their matter would be placed into a list for directions for a future trial date. In Coulson, his Honour Justice Gray stated:
“The first question which arises is whether the hearing can properly be said to have been “discontinued”, within the meaning of the section. Although, in a sense, the hearing had not actually begun, it had been specially fixed for a particular date, time and place, and it did not proceed at the appointed time, on the appointed date, at that place, or at all. In those circumstances I have no hesitation in holding that the hearing was discontinued, within the meaning of that word as used in s. 10(3).
Indeed, in circumstances where the failure of the hearing to continue seems to have been the result of the problems which have arisen as to the availability of judges of the Court, it might seem to be an unjust result if the parties were put to expense when a provision such as this exists in the Act.”
In cases following Coulson, the Court deemed it necessary to consider what meaning should be attributed to the term “discontinuance”. Justice Higgins in the matter of Re Palmdale Insurance Ltd (1994) 122 ACTR 33, said this:
“The context in which it appears requires that it be a consequence of the “discontinuance” that a “new hearing” is ordered. It must, therefore, be concluded that it is not intended that s10(3) will be applied where a matter is adjourned part-heard. There the hearing has been interrupted but not terminated. No “new hearing” would be required. On the other hand, nothing in s10(3) specifies the extent to which the hearing must have proceeded before termination in order that it may be regarded as having been “discontinued” so as to require a “new hearing”.
Whilst the delay in securing an alternative trial date is not something our client, or any client wants, the recompense of $12,457.50 plus the legal costs associated with bringing the application made up for it.
 Section 10(3)(b) Federal Proceedings (Costs) Act 1985.