Director of Family Services in the capacity of Christine Lesley Healy v Campione, Michael

[1998] FCA 370

FEDERAL COURT OF AUSTRALIA

C A T C H W O R D S

APPEAL - costs - appeal from Supreme Court orders as to costs - parents of children appeal successfully to Supreme Court against Children’s Court orders in care proceedings brought by Director of Family Services - Supreme Court orders costs against Director in Supreme Court and in Children’s Court on Supreme Court scale - whether costs should follow event - effect of statutory provisions as to costs in Children’s Court - whether court should follow policy of ordinarily ordering costs against Director where parents have acted responsibly - Supreme Court orders justified on grounds other than proposed policy.

COSTS - direction by Supreme Court that costs in Children’s Court be paid on Supreme Court scale - whether power to so direct - effect of direction - lack of clarity in legislation and regulations.

Children’s Services Act 1986 (ACT), s.20, para.83(1)(e), para.144(1)(c), sub-s.147(1)
Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), s-ss. 22(1), (2) and (9), s.246, 393
Magistrates Court (Civil Jurisdiction) (Solicitors Costs) Regulations, reg. 2
Supreme Court Act 1933 (ACT), s.23
Common Law Procedure Act 1852 (UK), 15 & 16 Vic, c76
Common Law Procedure Act 1899
Federal Court Act 1976, s.43
Seat of Government Supreme Court Ordinance 1933 (ACT)

Duralla Pty Ltd v. Plant (1984) 2 FCR 342 - followed
Petreski v. Cargill (1987) 18 FCR 68 - followed
Brambles Holdings Ltd v. Trade Practices Commission (1979) 40 FLR 364 - followed
Latoudis v. Casey (1990) 170 CLR 534 - considered, followed
R v. Goia (1988) 19 FCR 212 - considered
McEwen v. Siely (1972) 21 FLR 131 - followed
Gojkovic v. Gojkovic (No. 2) [1992] 1 All ER 267 - considered
Hamdorf v. Riddle [1971] SASR 398 - followed
Reid Hewitt & Co. v. Jospeh [1918] AC 717 at 723 - considered
20 Corpus Juris Secundum para.4
Friedlander, Costs and the Public Interest Litigant 40 (1995) McGill LJ 55

On Appeal from the Supreme Court of the Australian Capital Territory

DIRECTOR OF FAMILY SERVICES in the capacity of Christine Lesley Healy v. MICHAEL CAMPIONE and MELISSA CAMPIONE

ACT G28 of 1997

Coram:  MILES, R.D. NICHOLSON & FINN JJ
Place:    Canberra
Date:    15 April 1998

IN THE FEDERAL COURT OF AUSTRALIA	)
)
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	)  ACT G 28 of 1997 )
)
GENERAL DIVISION	)

On Appeal from the Supreme Court of the Australian Capital Territory

BETWEEN:	DIRECTOR OF FAMILY SERVICES in the capacity of Christine Lesley Healy Appellant
AND:	MICHAEL CAMPIONE and MELISSA CAMPIONE Respondents

JUDGE(s):	MILES, R.D. NICHOLSON & FINN JJ
PLACE:	CANBERRA
DATED:	15 April 1998

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal to this Court be dismissed. 

2. The appellantDirector pay the respondents’ costs of the appeal to this Court.

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

IN THE FEDERAL COURT OF AUSTRALIA	)
)
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	)   ACT G 28 of 1997 )
)
GENERAL DIVISION	)

On Appeal from the Supreme Court of the Australian Capital Territory

BETWEEN:	DIRECTOR OF FAMILY SERVICES in the capacity of Christine Lesley Healy Appellant
AND:	MICHAEL CAMPIONE and MELISSA CAMPIONE Respondents

JUDGE(s):	MILES, R.D. NICHOLSON & FINN JJ
PLACE:	CANBERRA
DATED:	15 April 1998

REASONS FOR JUDGMENT

THE COURT:  

1. Higgins J, sitting as the Supreme Court of the Australian Capital Territory, allowed an appeal from the Children’s Court of that Territory in what is known as “care” proceedings. A Magistrate, sitting as the ACT Magistrates Court and exercising the jurisdiction of the Children’s Court conferred upon the Magistrates Court by s.20 of the Children’s Services Act 1986 (ACT) (the Children’s Services Act), had made a decision that the two children of the present respondents were in need of care and had made an order pursuant to para.83(1)(e) of the Children’s Services Act that the children become wards of the Director of Children’s Services (the Director). On 31 May 1996 his Honour set aside the decision and orders of the Children’s Court and made orders instead that the children remain with their parents subject to certain supervision on behalf of the Director.

2. On 26 March 1997 his Honour ordered that the Director pay the respondents’ costs of the appeal to the Supreme Court and of the proceedings in the Children’s Court.  His Honour directed that the latter be paid upon the Supreme Court scale, to be taxed by the taxing officer of the Supreme Court, if not agreed.  From that decision the Director appeals to this Court.

3. There are two grounds of appeal, namely,

   (1)His Honour erred in his interpretation of and exercise of the discretion conferred pursuant to section 22(9) of the Magistrates Court (Civil Jurisdiction) Act 1982;

   (2)His Honour erred in the exercise of his discretion in awarding costs of the proceedings in the Children’s Court upon the Supreme Court scale.

4. The first ground of appeal is concerned essentially with the construction of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) (the Magistrates Court (Civil Jurisdiction) Act).

5. Sub-section 22(1) provides that the section applies to matters arising under a law in force in the Territory (other than the Magistrates Court (Civil Jurisdiction) Act itself). Sub-s.22(2) provides that where jurisdiction is conferred on the Magistrates Court in respect of a matter arising under a law in force in the Territory other than by the Magistrates Court (Civil Jurisdiction) Act, proceedings in respect of such a matter are to be made by application.

6. Sub-section 22(9) of the Magistrates Court (Civil Jurisdiction) Act deals with the question of costs of an application in the following terms:

   22.(9)  Each party to proceedings on an application shall, unless the court otherwise orders, bear his or her own costs in the proceedings, and where the court makes an order for the payment of costs in such proceedings, the court shall direct the scale on which those costs are to be paid by any party.

7. As his Honour observed, the provisions of sub-s.22(9) may be contrasted with those of s.246 which are as follows:

   Costs in discretion of court or to follow event

   246.Costs in any proceedings, including costs in any interlocutory matter arising in the course of proceedings, shall -

   (a)be paid by or apportioned between the parties in such manner as the court in its discretion orders; or

   (b)if the court does not make an order referred to in paragraph (a) - except where otherwise provided by this Act, follow the event of the proceedings.

8. There was no issue that the application made by the Director to the Children’s Court pursuant to s.78 of the Children’s Services Act was an application within s.22 of the Magistrates Court (Civil Jurisdiction) Act, that the power to award costs was derived from s.22 and not from s.246 and that the power was governed by sub-s.22(9).

9. Higgins J described the provisions of s.246 as “the general rule”. However, there would appear to be no such general rule in the Magistrates Court when exercising the jurisdiction of the Children’s Court because that jurisdiction is conferred by and exercised in respect of matters arising under the Children’s Services Act.

10. The effect of the combination of s.246 and sub-s.22(9) is that where proceedings in the Magistrates Court are brought in respect of a matter arising out of the Magistrates Court (Civil Jurisdiction) Act, costs follow the event, subject to any order of the Court, and that where proceedings are brought in the Magistrates Court in respect of a matter arising out of a Territorial law other than the Magistrates Court (Civil Jurisdiction) Act, costs are borne by the respective parties, again, subject to any order of the Court. In that sense, if there is a general rule in the Magistrates Court exercising the jurisdiction of the Children’s Court, then it is that the parties bear their own costs.

11. In his reasons for judgment, following a survey of case law concerned mainly with costs in family welfare matters,  his Honour made the general observations at 9-10:

    I have to say that, whilst I can accept the reasoning which would support the view that there should ordinarily be no costs order as between parents in a case concerning the welfare of their child in the absence of unreasonable, improper or malicious behaviour, it is difficult to accept that the same policy reasons should inhibit the making of an order for costs against a person or body charged with a public duty.  The assumption that otherwise such persons or bodies might be influenced by a fear of a costs order from carrying out their public duty is not only contrary to public policy but also to authority, see Latoudis v. Casey and M & M v. Minister of Community Welfare.

    Indeed, it is my view that the public interest is better served by creating an expectation that, if parents do take part in care proceedings brought by a public authority or officer, then, if they do so reasonably and responsibly, and have acted otherwise reasonably and responsibly, they will have the benefit of a costs order.  Costs reasonably and responsibly incurred by parents should ordinarily be borne by the public as part of the cost of administering the child welfare system.  That system should permit parents to participate without being discouraged either by fear of a costs order if unsuccessful or of being considerably out of pocket even if successful.  In other words, the policy considerations which led this Court in McEwen v. Seily (sic) to conclude that justice was better served if a successful criminal defendant was ordinarily given the benefit of a costs order are equally applicable to care proceedings brought by a public official such as the respondent.

12. His Honour then proceeded to give reasons for his decision to order costs against the Director in the case before him.  They may be shortly stated as follows:

    ·The Director is publicly funded.

    ·The recovery of costs is in the public interest where successful litigants are legally aided since legal aid funds are under pressure.

    ·Whilst it was not necessary to find reprehensible conduct on the part of the Director’s officers, there were serious flaws in the assessment made by those officers of allegations of sexual abuse on the children.

    ·The respondent mother acted reasonably once the initial suspicion of sexual abuse had been raised and had suffered needless hardship as a result of the proceedings.

    ·The need for justice to be seen to be done will usually be effected by making an order for costs to a successful party.

13. His Honour gave no reasons for ordering that the respondent’s costs be fixed at the Supreme Court scale.  The matter of what scale of costs, if any, might be appropriate, was not the subject of any submissions made to him or to the Magistrate.

14. Before proceeding further to deal with the issues raised on the appeal, it is necessary, again, to say something about the nature of the appeal to this Court.  The appeal to this Court is not a re-hearing: Duralla Pty Ltd v. Plant (1984) 2 FCR 342, Petreski v. Cargill (1987) 18 FCR 68. In relation to decisions appealed against which are made in the exercise of a discretion, the principles are clear. The Court will not interfere unless the discretion is founded upon error of fact or law, allows irrelevant matters to affect the decision, or fails to take into account some material consideration, or the decision is outside the limits of a sound discretionary judgment: see Brambles Holdings Ltd v. Trade Practices Commission (1979) 40 FLR 364.

15. Clearly the costs of the appeal to the Supreme Court were in the discretion of his Honour. Section 23 of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) provides as follows:

    Costs

    23.(1)  The court shall have jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of  jurisdiction.

    (2)  Subject to any other law of the Territory (including rules of court) the court may determine -

    (a)the amount of costs of and incidental to proceedings in the court, including the administration of an estate or trust; and

    (b)by whom and to what extent such costs are to be paid.

    (3)  Nothing in this section shall alter the practice which would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the court.

16. Clearly the powers of the Supreme Court in relation to the costs of an appeal to it from another court are governed by s.23 of the Supreme Court Act. On the other hand, the power of the Supreme Court to make orders relating to the costs in the court appealed from are to be found, not in the Supreme Court Act, but in s.393 of the Magistrates Court (Civil Jurisdiction) Act. That section empowers the Supreme Court on an appeal from the Magistrates Court under that Act “to affirm, reverse or vary the judgment or order appealed from”.

17. His Honour’s reasons do not appear to have distinguished between the two powers.

18. In this respect it is important to recognize that his Honour was sitting as a court of appeal against the Magistrate’s order that the children be made wards of the Director. The question of costs could not be agitated until his Honour made a decision on the appeal itself. Once his Honour had set aside the order of the Magistrate, it then fell to his Honour to consider the exercise of two separate discretionary powers, first whether to exercise the general power of the Supreme Court conferred by s.23 of the Supreme Court Act and, secondly, to consider the exercise of the particular power conferred by s.22(9) of the Magistrates Court (Civil-Jurisdiction) Act exercisable.  In exercising the latter power, the Supreme Court could not go beyond the powers exercisable by the Magistrates Court.   The general power of the Supreme Court to award the costs of the appeal was separate from the particular power to make orders in respect of the costs of the application in the Magistrates Court and the principles to be applied in exercising each of those powers were not necessarily the same.

19. For the appellant Director, it was submitted that his Honour fell into error in failing to give sufficient recognition to the general intention of sub-s.22(9) of the Magistrates Court (Civil Jurisdiction) Act that there will be no order for costs in proceedings in respect of matters arising under a law of the Territory other than the Magistrates Court (Civil Jurisdiction) Act itself, and that his Honour mistakenly perceived there to be a “general rule” laid down in s.246 of the Magistrates Court (Civil Jurisdiction) Act that ordinarily costs follow the event.

20. Whether his Honour meant that the general rule was to be attributed to s.246 or to the law generally, is not clear. If there is a general rule laid down by s.246 it is that in the absence of an order for costs in proceedings in respect of a matter arising out of the Magistrates Court (Civil Jurisdiction) Act, costs “follow the event of the proceedings”, but otherwise, on the face of it, once the decision is made to make an order as to costs, the Magistrates Court has an unfettered discretion as to the apportionment of such costs. However, it is otherwise true that, historically, although the statute books contain many examples of legislation conferring on courts a general discretion with regard to costs of litigation, the courts themselves have responded by applying a consistent rule of practice, if not of law, that ordinarily the losing party is ordered to pay the costs of the winning party. It may be that the practice is incidental to a system adversary in nature in which the spoils of victory include reparations for the price of fighting the war. The adversarial nature is most obvious in civil actions between private parties. It may be reflected in the proposition that “costs follow the event”. It is not so obvious in some other types of proceedings, for instance, proceedings concerned with the welfare of children and in proceedings that are (or should be) taken, not in the interest of the moving party, but in the public interest. In those sorts of cases it may not be appropriate to view the outcome in terms of winners and losers and the idea that “costs follow the event” might not be applicable.

21. In some respects the rule of practice has been extended beyond civil actions between private parties.  In Latoudis v. Casey (1990) 170 CLR 534, to which his Honour referred, the High Court held that ordinarily the rule should be applied in favour of defendants who successfully defend criminal charges in courts of summary jurisdiction. On the other hand, the rule of practice has not been extended in favour of accused persons acquitted at trial on indictment: see Supreme Court Act, sub-s.23(3) and R v. Goia (1988) 19 FCR 212.

22. Higgins J was of the view that the “policy considerations” underlying McEwen v. Siely (1972) 21 FLR 131 applied to the present case. His Honour acknowledged a past practice of not ordering that the burden of costs follow the outcome of proceedings in some particular types of civil cases. For instance, in Gojkovic v. Gojkovic (No. 2) [1992] 1 All ER 267 it was stated broadly that “it is unusual to order costs in children cases”, since in most family cases in England one or both parties are legally aided, and assets are insubstantial or at least inadequate for the needs of the family. Hence, it is thought the question of who pays the costs may be academic and no order for costs will be made.

23. His Honour also acknowledged a past tendency on the part of courts to shrink from awarding costs against an unsuccessful public official or public authority prosecuting or defending a civil case in furtherance of a perceived public duty.  However, at least since 1971 following Hamdorf v. Riddle [1971] SASR 398, any such tendency in Australia has been halted, if not reversed. The South Australian case was followed by a Full Court of the Supreme Court of the Australian Capital Territory in McEwen v. Siely, and both decisions were endorsed by the High Court in Latoudis v. Casey.  In practical terms the reasons expressed in the majority judgment of the High Court support a general rule that where a court has an open discretion as to costs and where there is no reason to make an order to the contrary, costs should ordinarily follow the event.

24. At common law there was no power to award costs to or against any party.  In equity, although the jurisdiction included the power to award costs, the nature of the jurisdiction, including matters relating to children and trusts, was such that the parties were not always divided into winners and losers.  The assumption that costs will not be ordered in cases involving the welfare of children unless for some particular reason has continued until the present time, as indicated above.

25. In England the Common Law Procedure Act 1852 appears to be the earliest enactment providing that costs follow the event in the absence of some order to the contrary. It was considered that this provision reflected previous practices that had developed under earlier enactments: see Reid Hewitt & Co. v. Jospeh [(1918)] AC 717 at 723 per Lord Findlay LC where the history of the practice is discussed. When the administration of law and equity were fused, the second Supreme Court of Judicature Act 1875 reflected previous practices, making the primary rule the one that formerly applied in equity, namely, that costs were in the discretion of the Court but providing in addition that in a jury trial costs were “to follow the event”.

26. The reception of the common law into the American colonies has apparently led to the situation common in the United States jurisdictions that costs are generally not allowable to one side or another.  The courts there have no implied or inherent power to award costs.  Nor is there any constitutional right to costs: 20 Corpus Juris Secundum para.4.

1. The prevailing Canadian system relating to costs is contrasted with the American system of a “no way” costs rule, with each side paying its own costs, and the English system of “costs in the cause” in which the losing party pays most of the costs of the winning party: see Friedlander, Costs and the Public Interest Litigant 40 (1995) McGill LJ 55.  The author describes statutory costs regimes in some provinces, designed to encourage settlement without hindering access to the courts.

2. In New South Wales the provisions similar to those in England prior to 1875 were written into the Common Law Procedure Act 1899 which continued in that State until 1970. Section 265 provided that the costs of any issue of fact or law shall follow the finding or judgment upon such issue, and be adjudged to the successful party whatever may be the result of the other issue or issues. On the other hand, costs in equity remained in the discretion of the court. The division of law and equity and the separate regimes of costs in the Supreme Court continued in the Australian Capital Territory until the Supreme Court Act came into operation, in its original manifestation as the Seat of Government Supreme Court Act 1933 (Cth).

3. Hence, where the power as to costs is circumscribed by statute, as it often is, it is to the terms of the statute, not to any general rule, to which one must look.  If the terms of the statute are obscure or ambiguous, doubtless they can be given clarity of meaning in the light of a perceived general rule.  However, there is no obscurity or ambiguity about sub-s.22(9): in proceedings to which it applies the respective parties bear their own costs unless there is some reason for the Magistrates Court in the exercise of discretion to make some order which will have a different effect.  The existence of provisions elsewhere in the same statute that, in other types of proceedings, costs follow the event, or the existence of a practice in other types of proceedings where there is a discretion, unaffected by such provisions as sub-s.22(9), that costs follow the event, do not of themselves provide reasons for making an order other than that the parties bear their own costs.

4. In this respect we consider that his Honour was in error in deciding whether or not to exercise the discretion, and, if so, how the burden of costs should be allocated, to use the opportunity to purport to create judicially what he described as a public expectation that parents participating in care proceedings, acting reasonably and responsibly, should have the benefit of a costs order against the Director. There is no such rule of law or practice. To create one is to restrict to an unjustifiable extent the effect of the words in sub-s.22(9) of the Magistrates Court (Civil Jurisdiction) Act. His Honour expressed the view that the policy considerations, as he called them, in McEwen v. Siely were no different from those that arise in the present case.  We do not consider it appropriate to embark upon a course of comparing the policy considerations that may have arisen in those cases, assuming that such a comparison were possible.  It is sufficient to say that there is nothing in McEwen v. Siely to lay down a rule which restricts the operation of sub-s.22(9) or affects the discretion conferred by that sub-section.

5. Similarly, the Court does not lend its weight, as a reason for upholding a costs order against the Director, to the propositions that, in comparison to the public funds committed to the Director, legal aid funds are under pressure and that accordingly it is in the public interest that the respondents’ costs be paid out of the funds of the former rather than out of those of the latter.

6. Nor can we agree with the statement that in order for justice to be done it will usually be “effected” by an order for costs in favour of the successful party. As already indicated, that statement may reflect a practice in adversarial litigation, that ordinarily, costs should follow the event, but this case is governed by the provisions of s.22(9) of the Magistrates Court (Civil Jurisdiction) Act. Nevertheless, whilst the general approach of his Honour indicates error, it remains to be considered whether or not the discretion miscarried that is, whether the ultimate decision was wrong. In other words, the Court must consider the question whether there was something about the case before His Honour which justified a decision that the provision in sub-s.22(9) that the parties bear their own costs should be ousted in favour of an order that the Director pay the respondents’ costs. His Honour found, contrary to the Magistrate, that the process of assessment by the Director’s officers and professional advisers into complaints of sexual abuse on the children was tainted by “serious flaws”. His Honour’s findings in this regard were open to him and are not challenged in the appeal to this Court. On the other hand, according to his Honour, the children’s mother had acted responsibly. That finding was also open to his Honour. This Court must accept that these findings were sufficient to justify his Honour exercising his discretion to make an award of costs and to order that the respondents’ costs of the appeal be paid by the Director.

7. In summary, whilst not all his Honour’s reasons are accepted, we do think that there were sufficient grounds in his Honour’s findings of fact to justify an order that the Director pay the respondents’ costs both in the appeal and in the proceedings before the Magistrate.

8. So far as the quantum of costs is concerned, his Honour lacked the power to order that the Director pay the respondents’ costs in the Children’s Court on the Supreme Court scale. The power under s.23 of the Supreme Court Act to determine the amount of costs is limited to costs of and incidental to proceedings in the Supreme Court. There is nothing in the Supreme Court Act, or elsewhere, to confer a power on the Supreme Court sitting on appeal from the Children’s Court to award costs in respect of the proceedings in the Children’s Court which goes beyond the power of the Children’s Court. The Supreme Court sitting on appeal was confined, as far as the amount of costs of the Children’s Court was concerned, to the powers of the Children’s Court: see para.144(1)(c) and sub-s.147(1) of the Children’s Services Act. The effect of sub-s.22(9) of the Magistrates Court (Civil Jurisdiction) Act is that the Court making an order in respect of an application under the Children’s Services Act shallmay “direct the scale on which those costs are to be paid”. 

9. On the hearing of the appeal to this Court, we wereThe Court was informed that the “scale” is ascertained by reference to the Magistrates Court (Civil Jurisdiction) (Solicitors Costs) Regulations, which specify in regulation 2 a number ofthe methods of ascertaining costs for solicitors’ work done after 1 January 1991.  Each method requires the application of an appropriate “prescribed percentage” toof the amounts referred to in various provisionsO.4 r.6(3)(a) of the Supreme Court Rules.  The appropriate prescribed percentage ranges from 33 per cent to 90 per cent depending upon the amount claimed.  In the care proceedings brought by the Director in the Children’s Court, no amount was or could be claimed.  It is difficult to see how an appropriate prescribed percentage could be selected or applied.  Be that as it may, we would agree that Tthere is therefore simply no power in the Children’s Court to award costs on the full Supreme Court “scale”, and no power in the Supreme Court sitting on appeal from the Children’s Court to order that the costs of the proceedings in the Children’s Court be paid on the full Supreme Court scale.  His Honour may have intended, not that costs be paid on the full Supreme Court scale, but on whatever scale, referable to Supreme Court costs, the taxing officer thought appropriate.

10. HIt may be added that His Honour advanced no reasons for awarding costs in the Children’s Court other than in accordance with the provisions laid down in the Children’s Services Act and in the Magistrates Court (Civil Jurisdiction) Act and Regulations and, accordingly, if there had been power to depart from these provisions, no cause for so departing has been shown.  We think it appropriate simply to observe without interfering with the terms of his Honour’s direction, that it could not have been intended to award costs of the proceedings in the Children’s Court at more than 90 percent of the costs recoverable if the proceedings had been in the Supreme Court. We cannot be more precise than that.  If further clarity is sought, it would appear to be in amendment of the legislation and regulations.

Counsel for the respondents to the appeal in this Court, although seeking to uphold his Honour’s decision in this regard, was not able to point to the source of his Honour’s power except for a reference to Butterworths Civil Procedure ACT 27,501-27,550.  On examination that reference is found to be concerned with the Supreme Court’s power to assess costs for Supreme Court proceedings rather than to order taxation.  It is not to the point.  It was also put that his Honour’s order as to taxation of costs was not appellable because it was expressed to be made subject to agreement.  There is no substance in that submission.  In the event of an order being made that one party pay the other party’s costs, it is always open to the parties to agree on the amount, rather than to proceed to taxation.  Reference to taxation in default of agreement in an order for costs is common.  It is not necessary: it is probably made in the hope that agreement will avoid lengthy and expensive taxation.  It does not make the order provisional or incomplete.

1. The appeal to this Court should be dismissed.  As far as the costs of the appeal to this Court are concerned, the question is governed by s.43 of the Federal Court Act 1976.  The principles are similar to those already mentioned which support the order for costs against the Director in the appeal to the Supreme Court.  It is appropriate that the appellant pay the respondents’ costs of the appeal to this Court.

   I certify that this and the thirteen (13) preceding pages are a true copy of the Reasons for Judgment herein of the Court

   Associate:

   Date:  15 April 1998

Counsel for the appellant:  I Nash
Solicitors for the appellant:                   ACT Government Solicitor

Counsel for the respondents:                A Tonkin
Solicitors for the respondents:              Higgins Solicitors

Date of hearing:  30 October 1997

Date of judgment:  15 April 1998