Hoskings and Hoskings and Anor (No.2)
[2016] FCCA 386
•26 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOSKINGS & HOSKINGS & ANOR (No.2) | [2016] FCCA 386 |
| Catchwords: FAMILY LAW – Application for costs by Child Support Registrar in circumstances where the Applicant’s Amended Notice of Appeal was dismissed – balancing considerations with respect to the Applicant’s conduct and financial circumstances – application dismissed. |
| Legislation: Acts Interpretation Act 1901(Cth), s.7(2) Child Support (Registration and Collection) Act 1988 (Cth), Div.3 of Pt.VII, ss.105, 110B Family Law Act 1975 (Cth), s.117 Federal Circuit Court Act 1999 (Cth), s.79 |
| Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641 Hoskings & Hoskings [2015] FCCA 1926 IOOF Holdings Ltd v Federal Commissioner of Taxation (2014) 224 FCR 535 Laurie & Child Support Registrar [2009] FamCAFC 183 PBF v TRF [2005] FamCA 158 Pratt v Latta (No.2) [2002] FMCA 43 Piersons Pro-Health Pty Ltd v Silvex Nominees Pty Ltd (No.3) [2010] FMCA 250 |
| Applicant: | MS HOSKINGS |
| First Respondent: | MR HOSKINGS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 3854 of 2011 |
| Judgment of: | Judge Jones |
| Hearing date: | 7 August 2015 |
| Date of Last Submission: | 4 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 26 February 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Self-Represented |
| Solicitors for the First Respondent: | Self-Represented |
| Solicitors for the Second Respondent: | Ms Scarlett |
ORDERS
The Second Respondent’s application for costs is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hoskings & Hoskings & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3854 of 2011
| MS HOSKINGS |
Applicant
And
| MR HOSKINGS |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 7 August 2015, the Court dismissed the Applicant’s Amended Notice of Appeal filed on 2 March 2015. In the reasons for judgment, the Court found that the Amended Notice of Appeal did not raise a question of law.[1]
[1] Hoskings and Hoskings [2015] FCCA 1926 at [18], [36], [68] and [76].
As the Second Respondent had sought an award of costs in the substantive proceedings in the event that the Amended Notice of Appeal was dismissed, the Court Ordered the Second Respondent and Applicant to file an outline of submissions regarding costs. The Second Respondent filed its outline of submissions on 20 August 2015 and the Applicant filed her submissions on 4 November 2015.
Legislation
It is to be noted that the appeal was instituted under Div.3 of Pt.VII of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Child Support Act”). This Division was repealed on 1 July 2015 by Item 66 of sch.4 to the Tribunal’s Amalgamation Act 2015 (Cth). I agree with the Second Respondent’s submission that, notwithstanding the repeal, the appeal and its attendant rights, obligations and liabilities were preserved by virtue of s.7(2) of the Acts Interpretation Act 1901(Cth).[2]
[2] IOOF Holdings Ltd v Federal Commissioner of Taxation (2014) 224 FCR 535 at [13].
Section 105 of the Child Support Act provides that the Family Law Act 1975 (Cth) (“the Act”) applies to proceedings under the Act, as if the proceedings were proceedings under the Act. Thus, s.117 of the Act applies to applications for costs in proceedings under the Child Support Act.
Section 79(1) of the Federal Circuit Court Act 1999 (Cth) authorises the Court or judge to award costs in all proceedings before the Court but provides that that section does not apply to family law or child support proceedings.
Subsection 117(2) of the Act provides that, if the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subjection to subsection (2A) of the Act, make such Order as to costs as the Court considers just.
Subsection 117(2A) of the Act provides:
In considering what order (if any) should be made under subsection (2), the Court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admission of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the Court considers relevant.
In PBF v TRF [2005] FamCA 158, the Full Court said with respect to the exercise by a Court of its discretion under subsection 117(2A) of the Act at [40] to [41]:
“40. The introductory words of subsection (2A) of section 117 are:
“In considering what order (if any) should be made under sub-section (2) the Court shall have regard to:”
41. A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subsection 2(A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.”
In Laurie & Child Support Registrar [2009] FamCAFC 183 at [123]-[126] O’Ryan J stated that in the absence of any countervailing consideration, the fact that a party was “wholly unsuccessful” will ordinarily justify the making of a costs Order against that party.
In Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641 at [118], the Full Court held there was no error in the trial Judge’s approach to the consideration of s.117(2A) of the Act with respect to child-support matters. At [115] to [116], the Full Court stated:
115. Jordan J identified the following matters as relevant to the exercise of his discretion on the costs issue:
• Mr Hendy was unsuccessful in his Form 63 application.
• There was a debt owing to the Commonwealth; the Commonwealth was entitled to bring enforcement proceedings.
• The Agency was only partly successful in securing the remedies sought.
• The Form 63 application was entirely unsuccessful
• Mr Hendy was currently in very poor financial circumstances.
• It could well be argued that the proceedings were necessitated by the failure of the respondent to comply with previous requirements relating to administrative assessments, "although I note that sub-paragraph (d) refers to previous orders of this Court".
• These proceedings should be more properly perceived as being civil proceedings between the Commonwealth as a third party and the respondent as a citizen, rather than as between parties to a marriage or parties to a relationship covered by the general philosophy of the Family Law Act, which is to the effect that each party should bear their own costs.
• These are enforcement proceedings
• Costs orders are frequently made in the civil arena when there is no apparent immediate capacity to meet the orders for costs and the parties.
• It would be inappropriate if the taxpayer was required to bear the entire burden of this exercise.
116. His Honour concluded:
"65 Finding a balance between all of those competing considerations, I have determined that I should further order that the respondent pay 40 per cent of the applicant's costs of and incidental to these proceedings, such costs as agreed and, failing agreement, as taxed."
As to the quantum of costs, the Registrar seeks costs in accordance with the scale (see Federal Circuit Court Rules 2001 (Cth) (“the Rules”) 21.02 and 21.10). The usual form of an Order for costs in accordance with Div.2, Pt.2, sch.1 to the Rules is for costs to be paid in a specific amount: Pratt v Latta (No.2) [2002] FMCA 43 at [5]-[6]; Piersons Pro-Health Pty Ltd v Silvex Nominees Pty Ltd (No.3) [2010] FMCA 250 at [38]-[43].
The Registrar seeks the fixed amount of $6,581.00, being the prescribed amount of costs recoverable under Div.2 of Pt.2 of Sch.1 to the Rules.
Conclusion
I now consider the matters specified in s.117(2A) of the Act.
The Applicant was wholly unsuccessful in the proceedings.
Turning to the financial circumstances of the parties. The Applicant submits that she is a concession card holder and she is experiencing financial hardship. She maintains that she provided a copy of her concession card to the Court. The Applicant also submits that she had to access her superannuation fund under the financial hardship provisions to pay immediate bills, including a proportion of the personal loan, however, she has not provided the Court with any documentary evidence to support this submission.
She also submits she has an unexpected “debit” of $9800 owing to the “Family Tax Benefit (Australian Government)”. She apportions blame for this debt to the failure of the Child Support Agency to advise Centrelink of a care arrangement change. Again, she has not provided the Court with any documentary evidence to support this submission.
The Applicant submits that the Court’s Notice of Appeal form does not advise potential appellants that they may be liable to pay the other party’s costs. She compares this to the Court’s Application – Contravention form, which states that an Applicant may be Ordered to “pay for all of some of the legal costs of the other parties.” She submits she expected the only costs involved in her Notice of Appeal would be Court fees, from which she is exempt by reason of the fact she is a holder of a Pensioners Concession Card.
I note the Applicant was not assisted by legal aid. The Court file contains a copy of the Applicant’s current Pensioner Concession Card issued by the Department of Human Services. The decision of the Social Security Appeals Tribunal, the subject of the Applicant’s Amended Notice of Appeal, records (at [8]) that the Applicant’s income, which formed the basis for the most recent administrative assessment for the period 1 July 2014 to 31 October 2014, was $20,133. These proceedings are in the nature of civil proceedings between the Applicant and the Commonwealth, with the consequence that it is the Australian taxpayer who bears the burden of the costs of litigation incurred by the Second Respondent.
The Applicant commenced her appeal on 5 September 2014. On 9 December 2014, the first directions hearing was held. At that hearing, the Second Respondent submitted that the Applicant’s Notice of Appeal did not raise a question of law. The Applicant was informed by the Court that an appeal brought pursuant to s.110B of the Child Support Act, was not a merits review. She was informed that, for her appeal to be successful, the Court would need to be satisfied that her appeal raises a question of law. She was told that her Appeal Notice did not raise any question of law. She was granted leave to file an Amended Notice of Appeal.
On 2 March 2015, the Applicant filed an Amended Notice of Appeal, which specified five grounds of appeal. The Applicant also sought various Orders, including a departure Order. At a second directions hearing held on 4 March 2015, I struck out the Order seeking a departure Order. At this hearing, the Second Respondent submitted that the Amended Notice of Appeal did not raise any question of law.
The matter proceeded to a final hearing on 26 June 2015. When asked what submissions, if any, she wished to make in respect of her five grounds of appeal, the Applicant informed the Court that she was unable to address those grounds as she had not drafted them. In her written submissions the Applicant stated that she obtained legal advice from the Family Law Assistance Program, Monash – Oakleigh Legal Service.
The Applicant submits that the Family Law Assistance Program, Monash – Oakleigh Legal Service was extremely busy, and there were time constraints on her capacity to ask questions about the grounds of appeal. Consequently, at the time of the hearing she “was not able to answer some of the grounds on what they meant in detail.” The Applicant submits (at [10]):
… I have been representing myself in the Family Court for years and I must say I was caught out by the complexities of the grounds and what was being asked of me on the 26 June 2016 (sic) at the hearing. The question of law was prevalent; however, I did not have the expertise and presence of a payed (sic) lawyer to properly show this at the correct time in Court.
I infer from this submission that the Applicant believes the grounds in her Amended Notice of Appeal raised questions of law, but they were unable to be successfully prosecuted because she was not legally represented. I reject this submission. The reasoning of the decision dealing with the substantive appeal makes it clear that, irrespective of her legal representation, the grounds simply did not raise a question of law. Indeed, in respect of some of those grounds, the Court found the grounds were misconceived or misapprehended the reasoning and findings in the Decision Record of the Social Security Appeals Tribunal (as it then was). Only one ground (Ground 4), was not entirely doomed to failure.
It concerns the Court, that the taxpayer is required to bear the burden of legal costs of an application prosecuted by the Applicant, despite her knowing the Second Respondent’s repeated submissions that her grounds did not raise a question of law. It seems to me, the Applicant pursued her application not appreciating, nor taking any steps to appreciate, the grounds in her Amended Notice of Appeal. On the other hand, the Applicant is the holder of a Pension Concession Card and her income is limited.
I have balanced the competing considerations. I am satisfied that it would cause the Appellant financial hardship if she were required to pay the sum of $6,581.00, or any lesser amount.
Conclusion
Consequently, the Second Respondent’s application for costs is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 26 February 2016
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