CAM22 v Child Support Registrar (No 2)

[2023] FedCFamC2G 71

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CAM22 v Child Support Registrar (No 2) [2023] FedCFamC2G 71 

File number(s):

BRG 240 of 2022

Judgment of:

JUDGE TONKIN

Date of judgment:

23 February 2023

Catchwords:

 INDUSTRIAL LAW – Application for costs – whether costs should be awarded – Order made for applicant to pay first respondent’s costs  

Legislation:

Administrative Appeals Tribunal Act 1975

Bankruptcy Act1966 (Cth)

Federal Circuit & Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Federal Circuit Court of Australia Act 1999

Cases cited:

Carrell v Mayne [2021] FedCFamC2G 162

Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq)[2011] FCAFC 136

Maple v Nui & Anor (No 2) [2018] FCCA 26

Division:

Division 2 General Federal Law

Number of paragraphs:

10

Date of last submission/s:

22 December 2022

Date of hearing:

24 October 2022

Place:

Brisbane

Counsel for the Applicant:

Mr Haddrick

Solicitor for the Applicant:

Bhardwaj and Associate Lawyers

Solicitor for the Respondents:

Mills Oakley

Solicitor for the Respondents:

Second Respondent appeared in person

ORDERS

BRG 240 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CAM22

Applicant

AND:

CHILD SUPPORT REGISTRAR

First Respondent

CAP22

Second Respondent

order made by:	JUDGE TONKIN
DATE OF ORDER:	23 February 2023

THE COURT ORDERS THAT:

1.The appellant CAM22 pay the first respondent’s costs in the fixed amount of $11,401.00 within 30 days in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE TONKIN

1. On 9 December 2022 the applicant’s (CAM22) appeal from a first review decision of the Administrative Appeals Tribunal dated 27 April 2022 was dismissed.

2. The first respondent (Child Support Registrar) in written submissions filed on 17 October 2022 sought an order that the applicant (appellant) pay the first respondent’s costs fixed in the amount of $11,401 within 30 days. On 9 December 2022 the Court ordered the applicant to file written submissions as to costs within 14 days. The applicant filed written submissions on 23 December 2022. The first respondent advised the Court that no further submissions in reply would be filed. The second respondent made no submissions as to costs.

3. The first respondent relied on the decision in Maple v Nui & Anor (No 2) [2018] FCCA 26 and contends in matters arising under the AAT Act costs follow the event. In Maple & Nui (supra) Judge Terry exercised her discretion under section 79 of the Federal Circuit Court of Australia Act 1999. At [17] Her Honour referred to the Full Court of the Federal Court’s decision in Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq):

   The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognises the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party.

4. In his submissions the applicant (appellant) made a number of serious allegations against the second respondent (CAP22).[1] He contends that he is unemployed and in receipt of Centrelink benefits and due to mental health deterioration he has been unable to recoup and hold a similar role of employment and is undergoing treatment from a psychiatrist and clinical consultant. He argued that any order for costs would place him into financial hardship. He said he was guided by Counsel on the matter.

   [1] Applicant (appellant’s) written submissions filed 23 December 2022 [4] and [13]

   Discussion

5. In Carrell v Mayne [2021] FedCFamC2G 162 (20 October 2021) Judge Brown discussed the approach to be taken when considering an application for costs in proceedings commenced pursuant to the provision of section 44AAA of the Administrative Appeals Tribunal Act 1975. Pursuant to the definition provided in section 7 of the Federal Circuit & Family Court of Australia Act 2021 (Cth) those proceedings are not family law or child support proceedings. He said at [157]

   [157] In these circumstances, the legal provisions relating to costs under section 117 of the Family Law Act 1975 (Cth), section 100 of the Assessment Act,and section 105 of the Collection Act do not apply. Rather the issue of costs is governed by section 214 of the Federal Circuit & Family Court of Australia Act 2021 (Cth).” I respectfully agree (see subsection 214 (1) of that Act.)

6. Subsections 214 (2) and (3) of the Federal Circuit and Family Court of Australia Act 2021 provide as follows:

   ...

   s.214 (2)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all  proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

   (3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.

7. Part 22 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) provides the Court with a broad discretion as to costs and the manner of their calculation. Sub rule 22.02 (2) provides in making a costs order the Court may:

   (a)set the amount of costs;

   (b)set the method by which costs are calculated; or

   (c)refer the costs for taxation under Part 40 of the Federal Court Rules; or

   (d)set a time for payment of the costs.

8. Under section 214 of the FCFCOA Act and Rules the Court retains a broad discretion whether to make an order for costs. Sub rule 22.09 provides that unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act1966 applies) is entitled to (a) costs in accordance with Schedule 2 and (b) disbursements properly incurred. Schedule 2 is the Rules is applicable in calculating costs.

9. The rationale for making a costs order is not to penalise an unsuccessful litigant but to compensate a successful litigant for expenses that might otherwise have been avoided. The applicant was wholly unsuccessful in the appeal. The applicant appealed the decision of the Tribunal in circumstances where he had failed to produce relevant financial documents as directed regarding his income, property, financial resources and failed to produce any documents as directed by the Tribunal with respect to his earning capacity and applications for employment. No question of law was established. There was no public interest in the appeal nor any unusual matter of law for determination which may have had general application. Neither the first nor second respondents engaged in any conduct bearing on whether costs should be awarded notwithstanding that the applicant in written submissions made serious allegations against the second respondent that she “made false statements under oath” and “falsified documents” allegations that were not on oath which I disregard for the purposes of the costs application.

10. In those circumstances I order that the applicant pay the first respondent’s costs in the fixed amount of $11,401.00 within 30 days in accordance with Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin.

Associate:

Dated:       23 February 2023