Melnik v Melnik [2005] FCAFC 207 (23 September 2005)

Last Updated: 26 September 2005

FEDERAL COURT OF AUSTRALIA

Melnik v Melnik [2005] FCAFC 207

COSTS CERTIFICATE - issue of costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) where a Federal appeal succeeds on a question of law





Federal Proceedings (Costs) Act 1981 (Cth) s 6(1), 6(3)
Bankruptcy Act 1966 (Cth) ss 58(3)(b), 60(1)(b)
Family Law Act 1975 (Cth) s 112AD



Bullock v Federated Furnishing Trades Society of Australasia (No. 2) (1985) 58 ALR 373 referred to
Richards v Faulls Pty Ltd [1971] WAR 129 cited













JOSEPH MORRIS MELNIK v AMANDA CATHERINE MELNIK

No QUD 209 of 2004



SPENDER and FINN JJ
23 SEPTEMBER 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 209 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JOSEPH MORRIS MELNIK APPLICANT
AND:	AMANDA CATHERINE MELNIK RESPONDENT
JUDGES:	SPENDER and FINN JJ
DATE OF ORDER:	23 SEPTEMBER 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS:

1.	The Court grants to Amanda Catherine Melnik, the respondent in Federal appeal QUD 209 of 2004, a costs certificate in respect of that appeal, the certificate to state that, in the opinion of the Federal Court of Australia, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of:
(a)	the costs incurred by the respondent in relation to the appeal, and

(b) any costs incurred by the appellant in relation to that appeal that have been, or are required to be, paid by the respondent to the appellant in that appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 209 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	JOSEPH MORRIS MELNIK APPLICANT
AND:	AMANDA CATHERINE MELNIK RESPONDENT

JUDGES:	SPENDER and FINN JJ
DATE:	23 SEPTEMBER 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 On 16 August 2005, a Full Court of the Federal Court (Spender, Hill and Finn JJ) allowed an appeal from orders made by Federal Magistrate Baumann on 3 February 2004, and set aside those orders. The Court further ordered:

‘3. Any legal process which would or may have the effect or purpose of committing the appellant to imprisonment under the order of Carmody J in the Family Court of Australia of 21 October 2004, including the issue of any warrant of commitment thereunder, be stayed.’

The Court further declared that:

‘1. It was not competent for the respondent to commence contravention proceedings in the Family Court of Australia on 26 August 2003 in respect of the non-payment of $79,000 ordered to be paid by Jerrard J on 23 August 2000, nor to take the further steps taken by her in those proceedings.’

2 When judgment was pronounced on 16 August 2005, the Court initially ordered that:

‘4. The respondent pay the appellant’s costs of this application, to be taxed if not agreed.’

3 The solicitor for the respondent sought to be heard in relation to that costs order. Subsequent to that submission, the Court made the following directions:

• ‘Order 4 is withdrawn in the terms in which it is expressed.

• The respondent have seven days within which to file written submissions as to costs.

• If written submissions by the respondent are received, the appellant is to file written submissions in response within a further seven days.

• The Court will consider the submissions and make orders as to costs.

• If no submissions are received within seven days contending for an order contrary to Order 4 in the original orders of the Full Court, Order 4 will remain as it is.’

4 The respondent’s submissions on costs filed 24 August 2005 commenced:

‘1. The Respondent takes no issue with the Order that the Respondent pay the Appellant’s costs of this Application, to be taxed if not agreed.’

The appellant, in his submissions on costs simply said:

‘1. The Appellant has no objection to and supports the Respondent seeking a Costs Certificate under Section 6 of the Federal Proceedings (Costs) Act 1981.’

5 The consequence of those directions and submissions is that the costs order pronounced on 16 August, namely ‘The respondent pay the appellant’s costs of this application, to be taxed if not agreed’ is the order of the Court concerning the costs of the appeal.

6 However, the respondent sought a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) ("the Act"). It is therefore necessary now to deal only with the question of whether a costs certificate under s 6 of the Act can and should be granted.

7 Section 6 of the Act relevantly provides:

‘(1) 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.

...

(3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of:

(a) the costs incurred by the respondent in relation to the appeal; and

(b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.’

8 Section 7 of the Act deals with costs certificates for appellants in Federal appeals. There has been no costs certificate granted under s 7.

9 Since giving the judgment in the matter on 16 August, Justice Hill has died. In our opinion, the ‘court that heard the appeal’ was the Federal Court of Australia, and it is competent for the Federal Court as constituted by Spender and Finn JJ to grant to the respondent a costs certificate pursuant to s 6(1) of the Act.

10 The discretion under s 6 of the Act which, in the circumstances of this case, is conferred on the Federal Court is unfettered. In Bullock v Federated Furnishing Trades Society of Australasia (No. 2) (1985) 58 ALR 373, the Court (Smithers, Sweeney and Woodward JJ) said at 374:

‘The unsuccessful respondent must satisfy the court ... that it is appropriate in all the circumstances for a certificate to be granted, and the circumstances which could properly influence that decision are many and various.’

11 The discretion to grant a certificate is a discretion to grant, not a discretion to refuse: Richards v Faulls Pty Ltd [1971] WAR 129 at 137-8.

12 In support of the application for a costs certificate, it was pointed out that the appeal was a Federal appeal: Section 3(fa) of the Act, and that the appeal had succeeded on a question of law, namely whether the provisions of s 60(1)(b) of the Bankruptcy Act 1966 (Cth) ("the Bankruptcy Act") applied to orders of the Family Court under s 112AD of the Family Law Act 1975 (Cth).

13 Further, it was submitted by the respondent that the Full Court had considered the proper construction of both s 58(3)(b) and s 60(1(b) of the Bankruptcy Act, particularly in the context of the bringing of contravention proceedings after a person has been made bankrupt.

14 The issues determined by the Court on the appeal are of wide-reaching significance, and have an importance well beyond the private interests of the parties to the appeal.

15 In the circumstances outlined above, it is appropriate for the Court so to grant.

16 The order of the Court is that the Court grants to Amanda Catherine Melnik, the respondent in Federal appeal QUD 209 of 2004, a costs certificate in respect of that appeal, the certificate to state that, in the opinion of the Federal Court of Australia, it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the respondent in respect of:

(b)	the costs incurred by the respondent in relation to the appeal, and
(c)	any costs incurred by the appellant in relation to that appeal that have been, or are required to be, paid by the respondent to the appellant in that appeal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender and Finn JJ.

Associate:

Dated: 23 September 2005

Counsel for the Applicant:	Mr Robert Bain QC, with Mr Philip Looney
Solicitor for the Applicant:	John C. Dennett
Counsel for the Respondent:	Mr Peter Hackett
Solicitor for the Respondent:	Bruce Dulley Lawyers
Date of Submissions on Costs:	24 August 2005; 30 August 2005
Date of Judgment:	23 September 2005