Brott v Abeles

Case [2007] FamCA 28

FAMILY COURT OF AUSTRALIA

BROTT & ABELES [2007] FamCA 28

APPEAL – COSTS – REVIEW OF ASSESSMENT OF COSTS BY REGISTRAR – Where solicitor appealed against trial Judge’s review of assessment of costs by Registrar – Where taxation conducted under Family Law Rules 1984 and review conducted after introduction of Family Law Rules 2004 – Whether proceedings for assessment of costs are judicial or administrative – Process of assessment by Registrar primarily matter of practice and procedure as an incident of administrative, as distinct from a judicial function and not an appeal in the strict sense - Whether necessary for Registrar conducting an assessment to give reasons – No legal or statutory requirement for Registrar acting as an assessing officer to give reasons, although a Judge conducting review of Registrar’s assessment would be assisted by brief reasons - Whether trial Judge gave adequate reasons for upholding Certificate of Taxation on basis of no error of principle by Registrar – In absence of provision in rules for Registrar to give reasons in respect of disputed items, trial Judge may have been constrained in review of two disputed items - Appeal allowed in part.

COSTS – COSTS OF APPEAL – Although appeal allowed in part, overall solicitor substantially unsuccessful – Appropriate there should be no order for costs – Not an appropriate case for grant of certificates under Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)
Family Law Rules 2004, Chapter 19

Family Law Amendment Rules 2004 (No. 2) 2004 No. 53, reg 4
Family Law Rules 1984, Order 38
Federal Magistrates Court Rules 2001, Chapter 1, Part 21
Federal Court Rules, Order 62 rule 44

Australian Coal & Shale Employees Federation v The Commonwealth  (1953) 94 CLR 621
Bennett v Bennett (1991) FLC 92-191
Blyth and Fanshawe (1882) 10 QBD 207
Boys v Australian Securities Commission [2001] FCA 1440
Cachia v Westpac Financial Services Ltd [2003] FCA 817
Gyopar v Cohens Frenkel Berkovitch Kefford & New (1987) FLC 91-839
Harris v Caladine (1991) 172 CLR 84; (1991) FLC 92-217
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
In re Brockman (1909) 2 Ch 170
Locke and Locke (1993) FLC 92-352
Minister for Immigration and Multicultural and Indigenous Affairs and B and B (2004) 219 CLR 365; (2004) FLC 93-174
Pacific Dunlop Limited v Australian Rubber Gloves (unreported, judgment delivered 17 August 1993: Olney J, Federal Court of Australia)
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Re Price, Deceased (No 2) (1941) QSR 205
Sanders v Snell (No 2) (2000) 174 ALR 53
Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (unreported, judgment delivered 14 April 1986: Waddell CJ in Eq, Supreme Court of New South Wales)
Stanistreet v Ridgeway Clements (1987) FLC 91-848
Titan v Babic [1995] FCA 813

Enright C, Federal Administrative Law (Sydney: The Federation Press, 2001)
Osborn PG and Woodley M, Osborn’s Concise…

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Brott v Abeles [2007] FamCA 28
Case
[2007] FamCA 28
Decision Date

CaseChat Overview and Summary

The appeal concerned a solicitor, Brott, who appealed against a trial judge's review of a Registrar's assessment of costs. The taxation of costs was conducted under the Family Law Rules 1984, but the review occurred after the introduction of the Family Law Rules 2004. The central dispute revolved around the nature of the Registrar's function in assessing costs and the scope of a judge's review of that assessment.

The court was required to determine whether the proceedings for the assessment of costs by a Registrar were judicial or administrative in nature. Further, it needed to consider whether it was necessary for a Registrar conducting such an assessment to provide reasons for their decisions, and whether the trial judge had given adequate reasons for upholding the Certificate of Taxation, particularly in relation to two disputed items.

The court reasoned that the process of cost assessment by a Registrar, while involving delegated authority, was not strictly an administrative function but rather an exercise of judicial power, drawing on historical precedent and the supervisory role of the court over delegated authority. However, the court found no legal or statutory requirement for a Registrar to give reasons for their assessment, although it acknowledged that brief reasons would assist a judge conducting a review. The court concluded that the trial judge may have been constrained in their review of the two disputed items due to the absence of reasons from the Registrar. Consequently, the appeal was allowed in part.

Despite the partial success of the appeal, the court found that the solicitor was substantially unsuccessful overall. Therefore, it was deemed appropriate that there should be no order for costs in relation to the appeal, and it was not considered an appropriate case for the grant of certificates under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Sanders v Snell (No 2) (supra) Kirby J was dealing with two summonses for a review of a Registrar’s decision in taxing a bill in the High Court. Under the heading “Principles for review of orders in taxation of costs” Kirby J said at 56:My powers in conducting this review are confined to those proper to judicial review of an administrative decision. The review contemplated by O 71 r 89(1) of the High Court Rules is not a hearing de novo of the decisions of the court's taxing officer. The ordinary principles governing the review of administrative decisions and, in particular, those in the nature of decisions concerning practice or procedure, apply. [our emphasis] We turn then to the first question we posed for determination in this appeal. The role of Masters and prothonotaries, and later taxing officers, in taxation of costs has been an evolutionary one developed over the centuries. That history is well defined in the relevant texts (see for example Quick on Costs at [2.2930]. It had long been recognised that when a taxing officer taxed a bill he or she did so “under power delegated to her or him by the court and the court has jurisdiction to control that delegated authority”. That situation is to be contrasted to the power exercised by a person exercising an authority delegated by statute which is regarded as an administrative function (see Quick on Costs at [2.3000]). The taxation of costs devolved in the 19th century to taxing masters in King’s Bench and prothonotaries in the Court of Common Pleas and thence to clerks. From these times the principles applied on review of decisions of these officers by Judges was a limited one. Ultimately statutory provisions were enacted both in the United Kingdom and Australia in various Acts concerning the regulation of the legal profession (see for example Legal Profession Act 2004 (Qld)) and rules of court established practice and procedure for a review of a taxation. State courts have, it appears for sound policy reasons, continued to deal with reviews or appeals of taxing officer’s decisions in a restricted way consistent both with early practice under the common law, and appropriate to a review of a person designated by statute the task of taxation. We respectfully adopt the discussion by Baker J, set out above, which reflects the sensible rationale for this policy. This leads us to the question of whether principles applicable in state courts or other courts of unlimited jurisdiction are apposite in federal courts and in particular the Family Court of Australia. Although there is presently no specific delegation of power to a Registrar to act as an assessing officer (cf taxing officer under Order 38 rule 43 of the former rules), the Registrar has specified power under the rules to conduct an assessment and to make a costs assessment order. Our examination of the history of the process of taxation, which involved the delegation of power subject to the supervision of the court, tends to support the conclusion of Carr J in Boys v Australian Securities Commission (supra) that the process is not an administrative one, but rather the function is an exercise of judicial power.

Ratio Decidendi

Legal Principle Established

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