G.M. (North Melbourne) Holdings Pty Ltd v Young Kelly Pty Ltd

[1986] FCA 639

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(LIMITED DISTRIBUTION ONLY)

IN THE FEDFXAL COURT	OF	AUSTRALIA	)
)

VICTORIA	DISTRICT	REGISTRY	)	VG NO. 240 Of 4985
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GENERAL DIVISION	) )
BETWEEN :

G.M. (NORTH MELBOURNE) HOLDINGS PTY LTD

Applicant

and

YOUNG KELLY

PTY LTD. NOEL WILLIAM YOUNG and ALLAN KELLY

Respondents

m: Woodward J.

m: 24 December 1986

PLACE: Melbourne

REASONS FOR JUDGMENT

This is an applicatlon pursuant to Ord 46 r . 7 ( 2 ) of the

Federal Court Rules, which provides,

"A person may apply to the Court ex parte for

a directlon to the Reglstrar that he do any act

which he is bound	or entitled to	do and has refused
to do".

After hearing the solicltor maklng the application, and

having read the Registrar's Report and other

before me, I made the order sought and reserved

doing so. These are they. , I

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The Reglstrar's Report was in the following terms:

"1. In this matter I have refused to sign, seal and

enter an order pursuant to Order 62 Rule 46(3) of

the Federal Court Rules (The Rule$).

2. The recltals to the proposed Order set out briefly--

the facts In the matter - copy of proposed order

annexed.

3 .	The applicant has applied under Order 46, Rule 7 ( 2 )
of the Rules for a directlon to the Registrar that

he sign, seal and enter the order.

4.	I refused to act under Order 62, Rule 45(3) on the
basis that under the rule it is a condition
precedent to my acting that the taxation be
completed and a sealed Certificate of Taxation has been issued.

5. In this matter only an interim Certificate of Taxation has been made - copy of this certiflcate is annexed.

6.	Items in the Bill of Costs that remain in
contention are the subject of a reconsideration by
me as the taxing officer pursuant to Order 62 Rules
42, 43 and 44. The reconsideration has been set
down for 22 December 1986.
7.

Affidavits for the purpose of establlshlng service and second named respondents (The Respondents) and

that costs remain unpaid have been filed. I am

satisfied that the interim Certificate of Taxation

has been served on the respondents and that the

costs were unpald after 14 days from the date of

service of the interim Certificate of Taxation."

The proposed order annexed was in these terms:

"WHEREAS :

(A) On the 2nd June, 1986 the Court ordered that the

first and second named respondents pay the

applicant's costs of the action including reserved

costs;

(B)

The appllcant's bill of costs was taxed on 16th

October, 1986;

( C )

The first and second named respondents by Notice of

Motion filed on 30th October, 1986 applied to the

Taxing Officer to reconsider his decision;

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On 26th November, 1986 an Interim Certificate of costs of $41,365.22;

I am satlsfied that servlce of the Interim

Certificate of Taxatlon was effected on the first

and second named respondents in accordance	with the .-
rules of thls Court; and

After 14 days from the date of service on the first

and second named respondents of the Interim

Certificate of Taxation, the $41,365.22 costs

remain unpaid.

THE COURT pursuant to Order 62 Rule 45(3) of the Federal

Court Rules HEREBY ORDERS THAT:

1. The first and second named respondents pay the sum

of $41,365.22 to the applicant.

DATE ENTERED: 18 December 1986

DEPUTY DISTRICT REGISTRAR

TAKE NOTICE that pursuant to Order 35 Rule 8 the amount

herein bears interest at the rate of 15%	from the date
of pronouncement of this order."

Order 62, rr.8(1), 38 and 45 of the Federal Court Rules

provide :

"8. (1) Unless the Court or a Judge in a

particular case otherwise orders, bills of costs

and fees which -

(a)

are payable to barristers and solicitors Court in respect of business transacted by them in the Court or its registries; and

(b) have been directed by a judgment or order

to be taxed or under these Rules are

liable to be taxed without express

direction,

shall be taxed allowed and certified by a Registrar

who in these Rules is referred to as the taxing

officer .

......

38. The taxing officer may, for the purpose of

taxation of costs -

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summon and examine witnesses either

orally or upon affidavit;

administer oaths;

direct or equlre the production of

books, papers and documents;

issue subpoenas;

make separate or interim certificates;

require a party to be represented by a

separate solicitor; and

do such other acts and direct or take

all such other steps as are directed by

these Rules or by the Court or a Judge.

On completion of taxation, the taxing

shall issue a sealed certificate of

taxation, with sufficient number of office copies

as are needed for the parties responsible for the

payment of costs.

(2) "he certificate of taxation must be

served on the party responsible for its payment.

( 3 ) If, after 14 days from the date of

service of the certificate of taxation, the costs

remain unpaid then the Registrar shall, at the

request of the party In whose favour the costs are

awarded draw up sign and seal an order in favour of

that party for the sum shown in the certificate of

taxation and enter the same.

( 4 ) Interest calculated in accordance with

Order 35, rule 8 is payable from the date the order

is pronounced. 'I

In my view the reference in r.38(e) to the making of

interim certificates must at least be wide enough to cover the

present case, where costs were taxed, a number of items not being

disputed by either party, and a certificate was given by consent

to cover those items, while disputed items were left to be dealt

with later.

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Rule 42 provides that the taxing officer shall not give

a certificate (except wlth the consent of the parties) until 14

days after he has made his decislon on taxatlon. This provides an

opportunity for any party to apply, by notlce of motlon, for .-the

taxing offlcer to reconsider any decision which has been made.

Rule 45 then provides for the taxing officer "on

completion of taxatlon" to issue "a sealed certificate of

taxation". If the costs have not been paid within 14 days of

service of a copy of this certificate, the Registrar is required,

on request, to draw up, sign, seal and enter an order for the sum

shown in the certificate.

The Deputy District Registrar was understandably

concerned that he could only prepare and enter such	an order "on
completion of taxation".

However I believe the clear power given by r.38 to issue

interim certificates must carry with it the power to make and

enter orders when the certificate is not acted upon within 14 days

of service. Otherwise there would be little point in issuing an

interim certificate.	I think r . 4 5 should be interpreted as if it
read,

"If, after 14 days from the date of service of the certificate of taxation (whether interim or final),

the costs remain unpaid	. . . . . I '
The point is very much	a matter of first impression,

incapable of detailed exposition. I made an order directing the

Deputy District Registrar to sign, seal and enter the order set out above.

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I certify that the five ( 5 ) preceding

pages are a true and accurate copy of

the Reasons for Judgment herein on

The Hon Mr Justice Woodward

Associate

Dated: 24 December 1986

Solicitor for the Applicant: Mr G.T. Bigmore instructed by

Messrs Mills Oakley and McKay

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