Jacups; Ex parte - Re Kay
[2003] HCATrans 327
[2003] HCATrans 327
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S98 of 2003
In the matter of -
An application for Writs of Mandamus, Certiorari and Prohibition against HIS HONOUR JOSEPH V. KAY J, JUDGE OF THE APPEAL DIVISION, FAMILY COURT OF AUSTRALIA
First Respondent
HIS HONOUR IAN R. COLEMAN J, JUDGE OF THE APPEAL DIVISION, FAMILY COURT OF AUSTRALIA
Second Respondent
HIS HONOUR PAUL MARSHALL GUEST J, ACTING JUDGE OF THE APPEAL DIVISION, FAMILY COURT OF AUSTRALIA
Third Respondent
HIS HONOUR STEPHEN R. O’RYAN J, JUDGE OF THE FAMILY COURT OF AUSTRALIA
Fourth Respondent
HIS HONOUR ALWYNNE R.O. ROWLANDS J, JUDGE OF THE FAMILY COURT OF AUSTRALIA
Fifth Respondent
REGISTRAR JOAN CAIN, REGISTRAR OF THE FAMILY COURT OF AUSTRALIA
Sixth Respondent
ANNETTE MARY TESORIERO
Seventh Respondent
PAUL ANDREW DOOLAN, JOHN ANDREW BARKUS AND FRANCES MARY EDWARDS CARRYING ON BUSINESS AS BARKUS EDWARDS DOOLAN
Eighth Respondents
Ex parte –
GRAHAM DUDLEY JACUPS
Applicant/Prosecutor
GLEESON CJ
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 27 AUGUST 2003, AT 2.19 PM
(Continued from 31/7/03)
Copyright in the High Court of Australia
MR D. KNAGGS: If your Honour pleases, I appear for the Mr Jacups. (instructed by Douglas Knagg)
MR M.P. KEARNEY: If your Honour pleases, I appear for the seventh and eighth respondents. (instructed by Barkus Edwards Doolan)
MS C.A. FIERRAVANTI-WELLS: If your Honour pleases, I appear – submitting appearance on behalf of the first to sixth respondents. I have been instructed to….. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Knaggs.
MR KNAGGS: The written submissions that your Honour ordered have been duly filed, including a draft amended application for prerogative relief.
HIS HONOUR: I have in front of me a document headed “AMENDED DRAFT ORDER NISI” filed by your firm under cover of a piece of paper called “APPLICANT’S FURTHER SUBMISSIONS” on 8 August 2003. Is that the current document?
MR KNAGGS: Yes, it is, your Honour.
HIS HONOUR: In subparagraphs 1.1 to 1.8 inclusive there are identified the various orders or proceedings in respect of which constitutional writs are sought. Just going through them one by one, where do I find the various orders or proceedings? First of all, the two certificates of taxation referred to in 1.1, where do I most conveniently find those?
MR KNAGGS: The certificates are annexed to an affidavit. I am just trying to find which one that is, but for convenience, in any event, your Honour, would you allow me to tender copies of the two certificates ‑ ‑ ‑
HIS HONOUR: Mr Knaggs, I do not want you to be taken by surprise by this, but at some stage I am going to have to actually look at the orders or documents in respect of which you seek constitutional relief. All I want to do at the moment is look at them. Where in the papers before the Court can I see them?
MR KNAGGS: Yes. Excuse me one moment, your Honour, and I will tell you where. Your Honour, my friend has kindly reminded me that they do appear as annexures to my submissions of 3 July.
HIS HONOUR: I have a document with a date stamp 3 July 2003 headed “Applicant’s Submissions to High Court on Stay”. Is that the one?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: What annexure?
MR KNAGGS: It appears as the fifth and sixth pages of that submission, I believe.
HIS HONOUR: The pages are not numbered.
MR KNAGGS: I apologise for that, your Honour.
HIS HONOUR: There are two documents each headed “Certificate of Taxation”, is that right?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: Both dated 14 August 1998?
MR KNAGGS: Yes.
HIS HONOUR: Just let me flag those.
MR KNAGGS: Yes, those are the certificates.
HIS HONOUR: The first one certifies that the amount payable by your client to Barkus Pearson Family Lawyers is $15,252.19, is that right?
MR KNAGGS: Yes, it is.
HIS HONOUR: The second one certifies that the amount payable by your client to Barkus Pearson Family Lawyers is $14,516.43, is that right?
MR KNAGGS: That is right, yes, your Honour.
HIS HONOUR: That is the effect of each certificate, to certify that each of those two amounts is payable to those lawyers?
MR KNAGGS: Yes.
HIS HONOUR: Those certificates are said to relate to orders made by Justice Moore of 9 September 1997.
MR KNAGGS: Yes.
HIS HONOUR: Where do I see that order?
MR KNAGGS: It was filed in the Registry, your Honour, without any other document with it.
HIS HONOUR: But amongst the papers that I have from which I am working, how can I read that order? Where do I find it?
MR KNAGGS: As I say, your Honour, it is filed but I will hand a further copy ‑ ‑ ‑
HIS HONOUR: Can you help, Mr Kearney?
MR KNAGGS: I have it here, your Honour. I will just ‑ ‑ ‑
HIS HONOUR: Where do I read it amongst my papers?
MR KNAGGS: Your Honour, it was filed without any other attachment as an order that the Registry required to be filed.
MR KEARNEY: Sorry, if I might assist?
HIS HONOUR: Yes.
MR KEARNEY: That which has been served upon us would suggest that it was pages 3 and 4 of the bundle filed on 3 July 2003 that we have just been looking at for the certificates of taxation.
HIS HONOUR: Thank you.
MR KEARNEY: I should add that my pages are not numbered. I have just counted through them. The third and fourth page of that bundle, your Honour.
HIS HONOUR: Do you have what you say is a copy of that order of Justice Moore?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: Could I see it? That order is in the following terms, relevantly:
IT IS ORDERED:
1 That the father pay costs as follows:
(i) one half of the mother’s costs of and incidental to the proceedings in the Local Court from and including 28 September 1995 to 20 January 1997 on a party/party basis in such sum as may be agreed or taxed, payment to be made within three months to the solicitors for the mother;
(ii) one half of the mother’s costs of and incidental to the proceedings instituted in this Court on appeal filed 19 February 1997 on a party/party basis in such sum as may be agreed or taxed, payment to be made within three months to the solicitors for the mother;
Those are the relevant parts of the orders, are they?
MR KNAGGS: Yes, they are.
HIS HONOUR: I presume that the numbers, $15,252.19 and $14,516.43 relate, respectively, to subparagraph (i) and subparagraph (ii) of that order?
MR KNAGGS: Yes, they do.
HIS HONOUR: Before we go any further, is this argument all about the concluding words of those subparagraphs, namely, “payment to be made within three months to the” solicitors for the mother?
MR KNAGGS: I would say not the argument before your Honour. Your Honour, the respondents contend that that should merely be construed as nothing more than, in their words, a machinery order. That being so, the order should be read as though it actually described the payee as follows “Those costs to be paid to the mother via her solicitors”.
HIS HONOUR: Was there ever any appeal against those orders of Justice Moore?
MR KNAGGS: No, your Honour.
HIS HONOUR: So those orders made on 9 September 1997 stand?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: And have never been challenged by way of appeal?
MR KNAGGS: No, your Honour.
HIS HONOUR: Is there any argument by you as to the power of Justice Moore to make those orders?
MR KNAGGS: No, your Honour, not if they are understood in the way that I just submitted, which is common both to the applicant and the respondent. If they were read as meaning the costs be paid to the solicitors as the ultimate payee who were entitled to recover them in their own name, there would be an argument about it, although it is too late because there was no appeal, but that would have been contended.
HIS HONOUR: Yes, but there has never been any appeal against those orders?
MR KNAGGS: No, your Honour.
HIS HONOUR: The certificate that was issued which says that the costs are payable to Barkus Pearson Family Lawyers appears to conform to the order, does it not?
MR KNAGGS: Your Honour, that is the submission the respondents make.
HIS HONOUR: What is your submission on the question of whether the certificates conform to the order?
MR KNAGGS: The submission of the applicant is that because the cost rules that are set out in Order 38 provide that the certificate, as soon as it is issued, is taken to be a judgment between those parties for that amount but cannot possibly be intended, in the submission of the applicant, that the certificate was correctly issued in favour of Barkus Edwards Doolan, who then become judgment creditors, that, as the applicant elaborates in the submissions, the certificate cannot be issued in favour of a mere, as we say, conduit for the mother. What the section means when it says that the certificate is prescribed as being allowed to be in favour of the parties to whom the costs are awarded ‑ ‑ ‑
HIS HONOUR: There is no attempt in these proceedings to set aside the order or orders made by Justice Moore on 9 September 1997, is there?
MR KNAGGS: No.
HIS HONOUR: Thank you. Now, let me go to paragraph 1.2 of the draft order nisi. Where do I find the orders of Justice O’Ryan on 19 November 2001?
MR KNAGGS: They are an annexure to the affidavit of Ms Rohr on behalf of the respondent. That affidavit is sworn on ‑ ‑ ‑
HIS HONOUR: On 29 July 2003, is that right?
MR KNAGGS: Yes, your Honour, that is the one.
HIS HONOUR: I have that.
MR KNAGGS: Yes. There is a table you will see on page 2 of her affidavit, by the way, that sets out six annexures which contain various orders, and the orders I am talking of are order A at page 4.
HIS HONOUR: No, page 4 is reasons for judgement. Where do I find the orders?
MR KEARNEY: Page 17, your Honour, if that assists.
HIS HONOUR: Thank you. So the orders referred to in paragraph 1.2 of your amended order nisi commence at page 17 of the affidavit and annexures of Natascha Rohr of 29 July 2003, is that correct?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: And you want to quash all those orders except orders 1 and 2?
MR KNAGGS: Yes, that is right, your Honour. I might, if I may, elaborate on what I have just said, which is agreeing with your Honour. Many of the orders perhaps could be partly quashed. They should be quashed because they are all orders relating to the enforcement of amounts of money that include any certificates and orders that were challenged.
HIS HONOUR: You will have noticed what I am trying to do, Mr Knaggs, is compose for myself an index to the papers in this matter.
MR KNAGGS: Yes, your Honour.
HIS HONOUR: A fairly humble task.
MR KNAGGS: Yes, your Honour.
HIS HONOUR: Order 3 of the orders of Justice O’Ryan deals with the two amounts of money we have just been talking about.
MR KNAGGS: Yes, your Honour.
HIS HONOUR: The issues, presumably, relating to those two amounts are those that we have already discussed.
MR KNAGGS: Yes.
HIS HONOUR: What is order 4 about? It is an amount of $8,480.
MR KNAGGS: Yes. How that came about, your Honour, was that for some reason Deputy Registrar Hendry on 2 May 1997 when she assessed costs incurred by the mother pursuant to orders of Lawrie J on 12 June issued what she called an assessment, and there does not seem to be any scope for a registrar making an assessment of costs, as distinct from a certificate of taxation. It seems that what Justice O’Ryan was doing was simply converting the assessment into a manageable certificate of taxation.
HIS HONOUR: What is paragraph 5 about?
MR KNAGGS: It is a restraint on the father against selling, assigning, transferring or encumbering his property at Govetts Leap Road and ‑ ‑ ‑
HIS HONOUR: It seems to be some kind of injunction aimed at preserving that property as some kind of security for payment of the costs.
MR KNAGGS: Yes, your Honour.
HIS HONOUR: Then orders 6 and following through to order 12 appear to be orders for the sale of the property in order to pay the costs.
MR KNAGGS: Yes.
HIS HONOUR: Right. Was there an appeal against the decision of Justice O’Ryan of 19 November 2001?
MR KNAGGS: Yes, your Honour. The appeal to the Full Court is again to be found in the affidavit of Ms Rohr – not the full appeal; the reasons for judgment.
HIS HONOUR: I am not interested so much in the reasons. It is the orders that you want quashed.
MR KNAGGS: The orders of the Full Court were made on 24 July 2002 and they are annexure B at page 21 of her affidavit.
HIS HONOUR: In effect, just an order dismissing the appeal?
MR KNAGGS: That is all.
HIS HONOUR: Was there any application for special leave to appeal to this Court from the orders of the Full Court of 24 July 2002?
MR KNAGGS: No, your Honour.
HIS HONOUR: Paragraph 1.4 of the amended draft order nisi refers to orders of Justice Rowlands on 4 March 2003 and 13 March 2003. Where do I find those?
MR KNAGGS: The orders of 13 March 2003 appear at page 32 of Ms Rohr’s affidavit.
HIS HONOUR: Were they orders in implementation of the orders for sale of the land made by Justice O’Ryan?
MR KNAGGS: Yes, they were.
HIS HONOUR: Was there an appeal against the decision of Justice Rowlands?
MR KNAGGS: No, your Honour. If might say so, your Honour, it was felt that because they were orders for writs of possession and because the Full Court had already said that it was proper for the certificates of taxation to be made and to be included in orders for sale it would not have been of any utility to simply appeal against orders for possession, per se.
HIS HONOUR: Do you mean by that that you did not appeal because you thought you would lose the appeal?
MR KNAGGS: We were bound to lose the appeal, I think.
HIS HONOUR: Yes. Paragraph 1.5 refers to orders of Justice Cohen on 14 July 2003. Where do I find those orders?
MR KNAGGS: Your Honour, they were filed without any coversheet, at the Registry’s direction. I have a copy here.
HIS HONOUR: Could you hand that up, thank you?
MR KNAGGS: The orders are to be found in paragraph 8.
HIS HONOUR: The first of those orders is an order staying Justice Cohen’s orders of 11 July.
MR KNAGGS: Yes.
HIS HONOUR: I have not heard about that yet, have I?
MR KNAGGS: You have not, your Honour.
HIS HONOUR: Why do you want to quash an order staying the earlier order? You want his earlier order to have effect, do you?
MR KNAGGS: No, your Honour. We do not seek that the second order, the one you are looking at, be quashed.
HIS HONOUR: Justice Cohen made two orders on 14 July. The first order is:
1 That my orders dated 11 July 2003 are hereby stayed until 3:00 pm Friday 18 July 2003 for the sole purpose of permitting the respondent Applicant to remove his personal property himself.
Why do you want to quash that order?
MR KNAGGS: Your Honour, we do not. We meant to quash the earlier order that he refers to of 11 July, which I should hand up to your Honour.
HIS HONOUR: The other order of 14 July is an order for costs for $1,000. Are you trying to quash that, too?
MR KNAGGS: I think it was in favour of the respondents.
HIS HONOUR: Yes.
MR KNAGGS: You cannot quash it because it is not outside jurisdiction. We might have something ‑ ‑ ‑
HIS HONOUR: Then should I delete paragraph 1.5?
MR KNAGGS: Your Honour 1.5 is supposed to refer to the earlier order which I will just ‑ ‑ ‑
HIS HONOUR: Do you want to amend paragraph 1.5 by altering the date of 14 July to some other date?
MR KNAGGS: I think I do, your Honour. I think that should be 11 July. I apologise.
HIS HONOUR: I will give you back the orders of 14 July and perhaps you can tell me now where I can find the order of 11 July.
MR KNAGGS: Yes, your Honour.
HIS HONOUR: I want Mr Knaggs to tell me – I have a bundle of papers here that I have to read some time. Nobody has prepared an index to them and I do not want to have to apply for a private detective’s licence to find the documents that he is referring to in his proceedings.
MR KEARNEY: I appreciate that, your Honour, and any assistance ‑ ‑ ‑
MR KNAGGS: Your Honour, would you allow me to tender or hand up – I think it is in the file – another copy of the orders of 10 July of Cohen J and ‑ ‑ ‑
HIS HONOUR: What was that date, again?
MR KNAGGS: It is the 10th, apparently, your Honour.
HIS HONOUR: What is the date that you want to write into paragraph 1.5 of your amended order nisi? We know it is not 14 July. What is it?
MR KNAGGS: Your Honour, can I say this, Justice Cohen on 14 July refers to his orders made on 11 July. That document refers to the orders being dated 10 July. I think that is correct and his Honour is mistaken when he refers to the 11th.
HIS HONOUR: Are you making an application to further amend the order nisi?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: What do you want to amend it to?
MR KNAGGS: 10 July, Cohen J.
HIS HONOUR: All right. I will amend the date in paragraph 1.5 to 10 July 2003.
MR KNAGGS: Thank you, your Honour.
HIS HONOUR: They seem to be purely administrative orders relating to the implementation of the orders of Justice O’Ryan.
MR KNAGGS: Yes.
HIS HONOUR: Thank you. Then paragraph 1.6 seems to be an order relating to the enforcement of the orders made by Justices O’Ryan, Rowlands and Cohen, is that right?
MR KNAGGS: I think that is right, yes.
HIS HONOUR: That is to say, the orders relating to the sale of the land.
MR KNAGGS: Yes.
HIS HONOUR: Paragraph 1.7 then refers to the enforcement of some Local Court judgment – by the way, was there any appeal against the decision of Justice Cohen, or of the orders of Justice Cohen, of 10 July 2003?
MR KNAGGS: No, your Honour.
HIS HONOUR: Why not?
MR KNAGGS: Your Honour, although the applicant understands that this Court does not want to be embarking on an application like this unless the remedies below are exhausted up to a reasonable point, where the orders are simply following upon and implementing the orders of Justice O’Ryan which were the subject of appeal, it was thought that it would be wasting money to appeal on incidentals on the way through. Could I add to that ‑ ‑ ‑
HIS HONOUR: No, before you go on, does it follow from what you say that the orders you seek in paragraphs 1.3, 1.4 and 1.5 stand or fall with the orders that you seek in 1.2, because they are all proceedings that arose out of and related to the orders of Justice O’Ryan for the sale of the land?
MR KNAGGS: Yes, they are, your Honour.
HIS HONOUR: So that, depending upon what happens in relation to your application in paragraph 1.2, your application in relation to paragraphs 1.3, 1.4 and 1.5 would follow?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: The same with 1.6?
MR KNAGGS: Yes, your Honour, except that we would say that 1.1 and 1.2 are probably the foundation that holds up the rest.
HIS HONOUR: I understand. The way it works is this, is it, Justice O’Ryan’s orders were orders for the sale of land to implement the costs orders that were the subject of 1.1?
MR KNAGGS: Yes.
HIS HONOUR: You want to have the certificates of taxation quashed and you want Justice O’Ryan’s orders quashed?
MR KNAGGS: Yes.
HIS HONOUR: If you succeed in both of those applications, you would say, rightly or wrongly, that you would also be entitled to orders 1.3, 1.4, 1.5 and 1.6?
MR KNAGGS: Yes.
HIS HONOUR: If, on the other hand, you fail in relation to 1.1 and 1.2, you accept that you would also fail in relation to 1.3, 1.4, 1.5 and 1.6?
MR KNAGGS: Yes.
HIS HONOUR: Now, 1.7 talks about some Local Court judgments. What is that all about?
MR KNAGGS: Your Honour, the certificates of taxation that we have spoken of already were both filed in the Downing Centre Local Court, which is something that is specifically permitted by Order 38 as, we say, the only enforcement regime for certificates of taxation. Those judgments at the Local Court have been stayed. We in our submissions say that, therefore, the subject matter of those certificates of taxation being as to amounts of costs, having been referred to the Local Court, as they should have been, cannot for that reason as well be the subject of sale orders under rule 7 of Order 33.
HIS HONOUR: When were they referred to the Local Court?
MR KNAGGS: I will just have to go to my submissions.
HIS HONOUR: Was it before the proceedings before Justice O’Ryan?
MR KNAGGS: Your Honour, I have a copy of the certificate of judgment.
HIS HONOUR: I am just interested to know whether the Local Court proceedings referred to 1.7 were before or after the proceedings before Justice O’Ryan.
MR KNAGGS: Yes, your Honour. I think Justice O’Ryan refers to that in a very exhaustive chronology in his judgment.
HIS HONOUR: That suggests they were before the proceedings before Justice O’Ryan.
MR KNAGGS: Yes, he says at 44 that the certificates were issued on 14 August 1998. The judgment was obtained by filing those certificates of taxation on 12 December 2000.
HIS HONOUR: Is that the date of the judgments referred to 1.7?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: Thank you. Now, 1.8 refers to a decision of Magistrate Scott Mitchell of 16 June 1997. Where do I find the orders of Magistrate Scott Mitchell of that date?
MR KNAGGS: Your Honour, again, may I hand up a copy. I have one. Your Honour, I do not know whether separate orders were taken out, but he sets out his orders beginning at page 12.
HIS HONOUR: Written on the top of this document is “Orders 15.12.95” and at the foot of the document is a date apparently written in by Magistrate Mitchell , “15.12.95”.
MR KNAGGS: Yes, your Honour.
HIS HONOUR: Is the date in paragraph 1.8 wrong?
MR KNAGGS: Your Honour, I think the correct date is the date that he signs himself at the end of the orders. It could be a mistake.
HIS HONOUR: Should I alter the date of 16 June 1997 to 15 December 1995? Is that what you want?
MR KNAGGS: Your Honour, Mr Jacups, the applicant, tells me from his exhaustive notes that the right date is 16 June 1997.
HIS HONOUR: Then will you please show me the orders of 16 June 1997 which you are inviting me to quash, because if you are not in a position to show me the orders you want me to quash, it is a little difficult to take seriously the application to quash them.
MR KNAGGS: Yes, your Honour.
HIS HONOUR: In fact, if you cannot show me the orders you want me to quash, it makes me wonder whether somebody is pulling my leg.
MR KNAGGS: Your Honour, I do not have the orders that I have applied for in the ‑ ‑ ‑
HIS HONOUR: Do you wish to withdraw paragraph 1.8 of the order nisi? You have commenced proceedings in this Court asking for an order quashing a decision of Magistrate Scott Mitchell. At the moment you do not even seem to be able to tell me the date of the orders that you want quashed and you certainly do not seem to be able to show me the orders you want quashed. In fact, it does not appear that you have ever seen the orders you want quashed.
MR KNAGGS: Your Honour, I ask that you allow me to amend on behalf of the applicant the references to quashing the orders of Magistrate Scott Mitchell.
HIS HONOUR: By deleting that paragraph?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: Right, I will delete paragraph 1.8. Now, the only other matter I would like you to deal with before I hear your arguments and your opponent’s arguments is the question of the delay that I raised on the last occasion and that, I understand, is dealt with by an affidavit of your client of 8 August 2003.
MR KNAGGS: Yes, your Honour
HIS HONOUR: Do you read that affidavit?
MR KNAGGS: I do, your Honour.
HIS HONOUR: Do you object to that, Mr Kearney?
MR KEARNEY: I do not, your Honour.
HIS HONOUR: I have read that affidavit. Is there any cross‑examination on that affidavit?
MR KEARNEY: No, there is not, your Honour.
HIS HONOUR: Thank you. Yes, go ahead with your argument, Mr Knaggs.
MR KNAGGS: Yes, thank you, your Honour. Your Honour, the applicant first of all makes submissions as to lack of jurisdiction. I will not take your Honour through the background. The argument about lack of jurisdiction, as I have already referred to – and this is at paragraph 5 of the submissions – is that the applicant says the Family Court had no jurisdiction to issue in favour of a stranger through the Court’s costs orders the certificates of taxation.
The respondents have relied on Order 38 rule 49, and that is contained at paragraph 6.4 of their submissions. I would ask your Honour to allow me to go to that.
HIS HONOUR: It all comes back, does it not, originally, Mr Knaggs, to the orders of Justice Moore and the concluding words of subparagraphs (i) and (ii) of her orders, does it not?
MR KNAGGS: Yes.
HIS HONOUR: That is, that the costs be paid to the solicitors for Ms Tesoriero?
MR KNAGGS: Yes, but, your Honour, both sides are asking you to read that the same way, with respect, it is just ‑ ‑ ‑
HIS HONOUR: Now, that is an order of a superior court and there was never any appeal against that order?
MR KNAGGS: No.
HIS HONOUR: Even now there is no application to quash that order?
MR KNAGGS: No, your Honour.
HIS HONOUR: So if the certificates of taxation were issued in conformity with that order, then, whatever other difficulties it may have, the entire basis of your case disappears, does it not?
MR KNAGGS: The entire basis relating to the certificates being issued in favour of the wrong person to whom “the costs are to be paid” would disappear.
HIS HONOUR: What other basis is there?
MR KNAGGS: The other limb to the argument of the applicant is that under the enforcement provisions of Order 33, specifically rule 7, which relates to enforcement by selling the party liable’s property, real estate, we say is this, that there is no power under Order 33 rule 7 to order the sale of property that is the subject of certificates of taxation and ‑ ‑ ‑
HIS HONOUR: Was that point argued in the appeal from Justice O’Ryan to the Full Court?
MR KNAGGS: No, your Honour.
HIS HONOUR: So there was an appeal from Justice O’Ryan to the Full Court that was dismissed?
MR KNAGGS: Yes.
HIS HONOUR: What you are doing in this Court is making a challenge to the decision of Justice O’Ryan for the sale of the property on the basis of a point that was not argued in the appeal from him?
MR KNAGGS: Yes, that is right.
HIS HONOUR: Yes. Now, what exactly is the point?
MR KNAGGS: The point about Order 33 rule 7 is this, that the ruling in its current form is in the annexure to the submissions that I am reading from and the current form of the order is at page 6 of the submissions, and it reads this way:
In order to enforce a decree of the Court for the payment of money, the court may order that any interest in real property of a party be sold and for that purpose it may appoint the Marshal or any other person . . . as trustee for the sale –
and so on, but it is only a decree of the court for the payment of money.
HIS HONOUR: That presumably is Justice Moore’s order, is it?
MR KNAGGS: No, I am sorry, the decree of the court that is necessary, we say, is a decree that includes the amount that is to be enforced, whereas Justice Moore’s orders, of course, did not specify an amount and what we say and submit is that because the rules under Order 38 provide that a certificate of taxation shall, when it is granted, amount to a judgment between the parties for that amount, then what is to be enforced then is the judgment registered in the Local Court by the Local Court enforcement regime because we say that a certificate of taxation cannot be a decree. We say that it cannot be a decree because it is subsumed in the order of the judge for costs, is subsumed in the certificate of taxation, which is then a deemed judgment and ‑ ‑ ‑
HIS HONOUR: A deemed judgment of whom or what?
MR KNAGGS: A deemed judgment of the court bearing the date 14 August when the certificates of taxation were issued. Your Honour, we say that because Order 38 rule 58, which provides for the issue of certificates of taxation, says this:
(2) Order 31, rule 6 (which deals with rectification of an error contained in a decree) applies to a certificate of taxation as if it were a decree.
Obviously, what we ask this Court to infer is obviously the legislation of Parliament did not consider a certificate of taxation a decree because it says it can be amended “as if it were a decree”. Your Honour, the other point we make in the written submissions is that there was a rule largely corresponding to the present rule 63 of Order 38. There was previously a rule that read this way, rule 42(3) – it starts off in very similar terms, a certificate of taxation:
shall be deemed to be a judgment for debt immediately due and payable and recoverable in accordance with law.
This is a rule that commenced on 30 June 1997 but was replaced before the certificates of taxation were issued. It is a defunct rule, but it illustrates what Parliament might have meant and we say it did mean. That rule that is a rule of the past says:
A certificate . . . shall be deemed to be a judgment . . . due and payable ‑ ‑ ‑
but it goes on to say:
payment of an amount specified in a certificate of taxation may be enforced under these Rules as if the certificate were an order made under the Act for the payment of costs of that amount.
In the amendment of those Rules, that reference to enforcing under the Act and Rules was deleted and it has never been reinstated. So we say all of those factors added together point to the fact that a certificate of taxation is not a decree and should not have been included in the sale orders.
HIS HONOUR: Now, tell me, how do you go about enforcing an order of costs in the Family Court?
MR KNAGGS: What you do, in our submission, your Honour, is what the applicants in fact did, take the certificate of taxation, which is set in the Rules to be a judgment for debt, to a court that handles judgments for debt, such as the Local Court or the District Court, depending on jurisdiction, file it there and it is then enforced by their enforcement provisions.
HIS HONOUR: Enforced how?
MR KNAGGS: If it were land, it would be the issue of a writ on land and goods – this is what the Rules insist on and the registry insists on. The sheriff tries to enforce the goods. If he returns bona vacentia on the goods, then the writ which may be registered on the title can then be enforced by sale by the sheriff.
HIS HONOUR: So you say the Family Court does not have what I might call powers of self-enforcement of orders of costs?
MR KNAGGS: Not unless the costs specifies the amount which then does away with the need for the certificate of taxation, obviously, or ‑ ‑ ‑
HIS HONOUR: So if Justice Moore had herself assessed the costs, the position would have been different.
MR KNAGGS: Yes, your Honour.
HIS HONOUR: The judges of the Family Court sometimes do that, they assess the costs?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: I think we have seen some examples in the papers we have been looking at. So if Justice Moore had assessed the costs herself, there would have been no problem about the orders of Justice O’Ryan?
MR KNAGGS: No, your Honour.
HIS HONOUR: It is because the costs had to be taxed that you say Justice O’Ryan had no power to make the orders he made?
MR KNAGGS: Yes.
HIS HONOUR: But this was not a point that was argued on the appeal from Justice O’Ryan to the Full Court?
MR KNAGGS: Your Honour, the judge does not deal with it, but I would not rule out that it was put before the judge because I am not sure.
HIS HONOUR: There seem to be two possibilities, then. Possibility 1 is that this is a point that was argued before Justice O’Ryan and either expressly or impliedly rejected by the Full Court.
MR KNAGGS: Yes.
HIS HONOUR: The Full Court gave its decision on 24 July 2002. There was no application for special leave to appeal to this Court from the decision of the Full Court.
MR KNAGGS: No, your Honour.
HIS HONOUR: That being so, why should that point be entertained by this Court now?
MR KNAGGS: Your Honour, as I understand the commentary to the enforcement orders of prohibition and certiorari in both the Butterworths and the CCH practices, it is stated there that although an appeal below is probably – I forget the wording exactly, but is often taken, the fact that there has been no appeal below does not prevent the High Court from issuing prerogative writs.
HIS HONOUR: I understand that but, in your submission, are these writs discretionary?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: If they are discretionary, why in the exercise of discretion should the Court not decline to deal with the point at this stage?
MR KNAGGS: Your Honour will have seen that in the submissions of the applicant reference is made to the Ross-Jones Case (1984) 156 CLR 185 and in that case at halfway down 194, it is stated:
a writ which goes as of right –
is a writ of prohibition –
when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies . . . If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.
HIS HONOUR: That is what I was putting to you.
MR KNAGGS: Yes, you were, your Honour. Your Honour, if your judgment is to refuse the leave on discretionary grounds, that means that the law is left unclear, I suppose, and – or of course your Honour could state the law, but it means that a practice of the Family Court that has grown up ‑ I do not know to what extent, but at least it is exhibited here – prevents anybody perhaps in the future from saying that this is a practice that should not be followed of enforcing certificates of taxation in the Family Court and of issuing certificates of taxation to other than parties to the proceedings, because your Honour’s remarks would be obiter and we say in our submissions that there are very many reasons why the practice is almost nefarious because it would mean the solicitor can enforce the judgment against the unsuccessful party to the marriage, or parent, who may have had a cross-claim against the parent in whose favour the order should have been made but cannot raise it against the solicitors.
There is all sorts of reasons why we say it is a practice that should be stopped and, looking at the wider public interest, we ask your Honour if you are against Mr Jacups on his other grounds of discretion, we would ask that you make the orders we seek. Your Honour, we do stress that the phrase that was used by Gibbs CJ in Ross-Jones. It is true, he says, “almost as of right”, but he says immediately above that:
it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority –
and then it is slightly weakened by the subsequent sentence which is the one that says it is “almost as of right”. But, your Honour, the other point is that Mr Jacups still has orders for possession outstanding against his property which, if your Honour were to quash the orders that we seek to be quashed, would result in a manageable amount of money that is in my trust account and which he could pay the other side their costs without jeopardy to his house. At the moment, he stands to lose his house for what we say are orders that are ‑ ‑ ‑
HIS HONOUR: I am sorry, you are not telling me that he has the money available to satisfy these orders for costs, are you?
MR KNAGGS: No, your Honour. He would have the order available if the costs were diminished in the way any orders quashing the previous orders of the Family Court ‑ ‑ ‑
HIS HONOUR: But there has never been any suggestion, has there, that the amounts – first of all, there has never been any suggestion that Justice Moore was not empowered to order your client to pay Ms Tesoriero’s costs?
MR KNAGGS: No.
HIS HONOUR: There is no complaint that the taxing officer wrongly assessed the amount of costs, is there?
MR KNAGGS: No, your Honour.
HIS HONOUR: So, if it had not been for the order that the costs be paid to Ms Tesoriero’s solicitor’s, your client would not have had anything to argue about?
MR KNAGGS: No, your Honour.
HIS HONOUR: But he would not have paid them because he would have wanted to raise a cross-claim. Is that what it amounts to?
MR KNAGGS: That is the evidence of Mr Jacups, but his evidence and his submissions are also that from shortly after those orders were made by Justice O’Ryan, he has been concerned that the costs were made in favour of the wrong person, the wrong ‑ ‑ ‑
HIS HONOUR: What is the nature of this cross-claim?
MR KNAGGS: Well, your Honour, before I answer that, I do appreciate that once the judgments are entered, it is probably too late for a cross‑claim if the judgments stand in the Local Court, although application could be made to set them aside, depending on what your Honour finds, but ‑ ‑ ‑
HIS HONOUR: But there was never any appeal from the actual orders made by Justice Moore.
MR KNAGGS: No, your Honour.
HIS HONOUR: They were made in August 1998.
MR KNAGGS: Yes.
HIS HONOUR: Now, you say that is where the whole thing went off the rails?
MR KNAGGS: On the issue of the certificates of taxation.
HIS HONOUR: Yes, but there is no explanation for the failure to appeal against the orders made by Justice Moore or for the delay in challenging – indeed, there is no challenge here to the orders made by Justice Moore.
MR KNAGGS: No.
HIS HONOUR: As I understand it – correct me if I am wrong – there are two aspects of family law practice of which you complain. One is the making of orders of the kind made by Justice Moore, that is to say, orders that the costs be paid to the solicitors.
MR KNAGGS: We do not complain about the orders of Justice Moore because we take, with respect, the same view as the respondents take, which is that is not what Justice Moore meant because she actually says that – I think she refers to the mother’s costs and then says they are to be paid to the solicitors.
HIS HONOUR: You object to that aspect of family law practice reflected in the certificates of taxation identifying the solicitors as the persons to whom the costs are to be paid.
MR KNAGGS: Yes.
HIS HONOUR: You also object to the family law practice of ordering the sale of land to satisfy orders for costs that have had to be taxed, is that what it amounts to?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: They are the two aspects of family law practice of which you wish to complain?
MR KNAGGS: Yes, your Honour. Your Honour, apart from the two certificates of taxation that were the subject of judgments in the Local Court, in paragraph 4 in the decision of Justice O’Ryan, he also orders a certificate of taxation as you have seen be ordered for costs ordered by Lawrie J and assessed by Registrar Hendry, so there are three certificates of taxation, therefore, that – or orders for certificates of taxation that come into play and are at the moment, together with about 60 per cent interest in addition, the subject of the sale of ‑ ‑ ‑
HIS HONOUR: Yes. Does that cover what you want to say?
MR KNAGGS: Your Honour, anything else is merely elaboration and it is in my written submissions.
HIS HONOUR: Thank you, Mr Knaggs. Yes, Mr Kearney.
MR KEARNEY: Thank you, your Honour. I trust that the written submissions on behalf of the seventh and eighth respondents met with the Court file.
HIS HONOUR: Yes.
MR KEARNEY: Thank you, your Honour. There is one preliminary matter I might address first and that is that is that it is the position of the seventh and eighth respondents that the orders of Justice O’Ryan, by way of enforcement, relate not only to the orders of Justice Moore but more broadly to a range of other orders that are specified in the body of the enforcement order that he makes and that are not under challenge today, including orders of Justice Lawrie, orders of Magistrate Mitchell and others that are specified in the body of that material.
In relation to the two aspects that have been identified towards the end of my friend’s submissions, could I say this in addition to the material that is contained in the written submissions and that is that it is the position, firstly, of the respondents in relation to the practice of enforcement of orders or certificates of taxation in the Family Court by way of sale of real property, that that is something that is, in my submission, clearly open to the court pursuant to both the legislation quoted in the written submission but also the structure of Order 33 of the Family Law Rules.
Your Honour will see from that rule 2(2) of Order 33, which is extracted at the rear of the respondent’s submissions, that that rule and that order contemplates a number of different methods of enforcement by the Family Court of obligations under Family Court orders, one of which is the sale of real property but, as would be common in a lot of other courts, garnishment, sequestration of estate and the like, and that the sale of real property is but one which is available pursuant to those Rules, in relation to an obligation as defined under the Rules that arises and the relevant aspect of the definition of obligation for these purposes is that it includes an order of the court.
In my submission, that is perhaps what the applicant has lost some sight of and that is that it is an order of the court or a number of orders of the court that at all times have been and are being sought to be enforced by the respondent. It is not the certificates of taxation that are the subject of those enforcement procedures but, rather, the certificates of taxation, in my submission, do not much more in these circumstances than quantify the amount of costs payable pursuant to, in the relevant sense, the orders of Justice Moore.
HIS HONOUR: Who was the moving party in the proceedings before Justice O’Ryan?
MR KEARNEY: The moving party was the applicant and, as I understand the position, the decision of Justice O’Ryan is in relation to two aspects of the proceedings to date. At that stage, one was an application for review – if your Honour will just excuse me one moment I will turn it up precisely – by the applicant in relation to the issue of the certificates of taxation and it was also – it was for the certificates of taxation issued on 14 August 1998 to be set aside. That was, of course, an application by the applicant today. It was for a direction to the Local Court to set aside the judgments in that court and it was for a direction to the Registrar‑General – I assume of the New South Wales Land Titles Office – to cancel writs of execution that at that time had been ‑ ‑ ‑
HIS HONOUR: Who was the moving party seeking the orders for the sale of the land made by Justice O’Ryan?
MR KEARNEY: That was certainly the seventh respondent.
HIS HONOUR: Could you give that person a name?
MR KEARNEY: Yes, Mrs Tesoriero.
HIS HONOUR: So Ms Tesoriero was the person who sought and obtained the orders referred to in paragraph 1.2 of the amended draft order nisi, was she?
MR KEARNEY: Yes, your Honour. In those respects, on each occasion there had been orders made by the court and on each occasion the orders complained of by the applicant had been made, the moving party has been either the applicant or Mrs Tesoriero.
HIS HONOUR: So the orders for the sale of the land and the consequential administrative orders made from time to time have all been made at the suit of Ms Tesoriero, is that right?
MR KEARNEY: Yes, that is correct, your Honour.
HIS HONOUR: Yes.
MR KEARNEY: Your Honour, it is the case that the eighth respondent has become involved as a result of applications being made against the eighth respondent by the applicant in the course of various reviews of orders made over the course of the enforcement and taxation of the various costs orders and obligations arising under those. They are the matters I wanted to address your Honour on in relation to the sale of real property, unless I can assist you further on that point ‑ ‑ ‑
HIS HONOUR: You say that the Family Law Act and Rules permit the making of an order for the sale of property to enforce an order for costs even though the order for costs was of such a kind that the amount of the costs had to be taxed and certified?
MR KEARNEY: Yes, your Honour.
HIS HONOUR: The specific rule on which you rely is what?
MR KEARNEY: The particular rule is Order 33. The sub‑rules that I say would lead to that conclusion, your Honour, are a combination of rule 2(1), sub‑rule then again (f) which provides that the enforcement regime under Order 33 would apply to orders “for the payment of costs”, and then it flows through, rule 2(5) and Order 33 sub‑rule (7) completes the structure as to how those things arise and the power in the court to make that order for a costs order.
It is my submission that the fact that an order made by a judge of the Family Court, in this case Justice Moore, does not, on its face, specify the amount but, rather, leaves that for assessment does not deprive the court of the power to enforce it pursuant to Order 33, that is, it need not, at that time, be a fixed amount. Certainly, and I accept that prior to enforcement procedures being taken one would need to have the amount quantified but that is as far as it would go.
HIS HONOUR: Now, the other aspect of the matter that concerns your opponent is the form of the orders made by Justice Moore, and in particular the concluding words of those orders, and the form of the certificate of taxation that issued. What do you say is the effect of the orders made by Justice Moore?
MR KEARNEY: They are as outlined in writing. It is my contention that the orders of Justice Moore are clearly costs orders in favour of Mrs Tesoriero to be fulfilled or met by payment by the applicant to Mrs Tesoriero’s solicitors, in these proceedings the eighth respondent.
HIS HONOUR: Now, what would be the consequence of an order of that kind in the case of somebody who has a cross-claim against the person in whose favour the order is made?
MR KEARNEY: The cross-claim would be met in one of two ways. It would either be met in terms of the argument that would occur prior to the entry by the court of the order itself for the payment of costs, or if there was some cross-claim other than a competing liability for costs but, rather, a cross-claim that went to, in a colloquial sense, some reason why costs should not be assessed at the level that the beneficiary of the costs order would seek, that would be addressed during the taxation process.
HIS HONOUR: Is it normal practice in the Family Court for an order for costs in favour of a party to add that the costs be paid to the party’s solicitor?
MR KEARNEY: It is certainly a common practice, yes, your Honour.
HIS HONOUR: What is the purpose of that?
MR KEARNEY: There are a number of them. Some of them, I must admit, are purely mercenary, I think, in some ways. Others are a matter of practicality. Given the nature of the jurisdiction, it is often easier for all concerned to ensure that the obligation divorces to some extent the parties from a personal involvement in the process and it is processed then through the trust accounts and other mechanisms of solicitors rather than directly between the parties.
HIS HONOUR: Is there any provision of the Act or Rules that specifically deals with that aspect of the making of orders?
MR KEARNEY: Not in what I would say was the machinery sense of how an order from payment – in this case, I think, it is phrased “father to mother” – might then be satisfied by payment in a particular way, no, there is not, your Honour. There is not a rule that says the court could direct that that occur in some way. But, in my submission, it does not change that fundamental nature of the order, that is, an order as between party A and party B.
HIS HONOUR: Now, none of these costs the subject of those two orders of Justice Moore have ever actually been paid?
MR KEARNEY: No, your Honour, and, indeed – and I stand corrected by my friend, I have poorly phrased part of the written submissions – other than the two payments he refers to in his submissions, none of the orders of costs the subject of Justice O’Ryan’s orders have been paid because, as I say, they are considerably more broad than the orders of Justice Moore.
HIS HONOUR: Did the certificates of taxation have any effect other than quantifying the amounts ordered to be paid by Justice Moore?
MR KEARNEY: They did in these proceedings in one respect only, that is that insofar as the Family Court proceedings and enforcement proceedings are concerned, the answer is no, that is, they solely quantified. But what they did do in this case was entitle the eighth respondent, the firm now known as Barkus Edwards Doolan, to apply in the Local Court on behalf of Mrs Tesoriero for the entry of judgment there. So that is one additional consequence beyond the plain quantification, as it were.
HIS HONOUR: But in terms of the proceedings in the Family Court for the enforcement of the orders for costs, those proceedings were all taken by Ms Tesoriero?
MR KEARNEY: That is correct, your Honour.
HIS HONOUR: It is only the Local Court judgments referred to in paragraph 1.7 of the amended draft order nisi that were obtained in the name of the solicitors, is that right?
MR KEARNEY: Yes, that is correct, your Honour, pursuant to those two costs certificates.
HIS HONOUR: But those judgments have never been enforced?
MR KEARNEY: They were enforced to the stage where a writ issued in the Local Court and, as my friend’s exhibit A on the last occasion demonstrates, and indeed that the applicant deposes to, those proceedings have been stayed now for some considerable time and no further action has been taken in relation to them.
HIS HONOUR: Those proceedings in fact were taken before the proceedings before Justice O’Ryan?
MR KEARNEY: Yes, and were part of certainly the factual basis for Justice O’Ryan’s decision, that is, the stay at that time of those proceedings in the Local Court.
HIS HONOUR: So that if there is some legal objection to that part of Justice Moore’s orders that the costs be paid to the solicitors, that has no practical consequence in relation to the enforcement proceedings in the Family Court because those proceedings have been taken in the name of
Ms Tesoriero and the only enforcement proceedings that have ever been taken in the name of the solicitors were stayed years ago?
MR KEARNEY: Yes, your Honour, that would be correct. I have obviously addressed the proposition that underpins that but, yes, if that were the case, that is correct.
HIS HONOUR: Yes.
MR KEARNEY: Your Honour, I do not wish to say any more unless it would be of assistance in relation to the question of delay particularly. I have canvassed that at some length in the material. So unless I can be of further assistance.
HIS HONOUR: Thank you, Mr Kearney.
MR KEARNEY: Thank you, your Honour.
HIS HONOUR: Yes, Mr Knaggs.
MR KNAGGS: Yes, your Honour. One of the submissions of the respondents is that the certificates of taxation were properly issued to the person who is entitled to be paid, being Barkus Edwards Doolan. But we say the issue of the certificates of taxation to the solicitors under Order 38 means the solicitors become the judgment creditor and it is not as though one can say that, again, they are only the judgment creditor as an agent.
HIS HONOUR: Your client’s primary objective, as I understand it, is to set aside the decision of the orders of Justice O’Ryan for the sale of his land.
MR KNAGGS: Yes.
HIS HONOUR: Those orders covered a number of amounts of costs owing, including in particular the two amounts the subject of the certificates of taxation referred to in 1.1.
MR KNAGGS: Yes.
HIS HONOUR: Apart from quantifying the amounts of costs payable pursuant to the orders of Justice Moore, what effect did those certificates of taxation have?
MR KNAGGS: Because they are certificates of taxation, they are taken by the Rules to be a judgment. That judgment is between Barkus Edwards Doolan as the “person entitled to receive the costs”, to be paid the costs. We say that is a mistake because they are only receiving them as an agent, but Barkus Edwards ‑ ‑ ‑
HIS HONOUR: Suppose it is a mistake, what is the consequence?
MR KNAGGS: It is not a…..mistake; it is a misinterpretation, I think we say, but ‑ ‑ ‑
HIS HONOUR: Are you suggesting that the certificate of taxation did not fix the amount of costs?
MR KNAGGS: It did, but it did more than that. It defined the judgment creditor in ‑ ‑ ‑
HIS HONOUR: I understand that, but just beginning at the beginning, Justice Moore made two orders for costs in favour of Ms Tesoriero in the terms that were mentioned earlier.
MR KNAGGS: Yes.
HIS HONOUR: Those orders have never been appealed against or sought to be set aside.
MR KNAGGS: No.
HIS HONOUR: The certificates of taxation, whatever else they did, at least quantified the amounts that were to be paid pursuant to Justice Moore’s orders.
MR KNAGGS: The applicant would say, your Honour, that, yes, they did, but because they are void they did not do anything.
HIS HONOUR: They are void?
MR KNAGGS: Because they are outside jurisdiction the whole of the certificate must be quashed, not just the reference to the parties.
HIS HONOUR: So is it your argument that because the certificates of taxation identified the solicitors as the persons to whom the costs were to be paid, they did not effectively quantify the costs?
MR KNAGGS: Yes, that is right, that is what we are saying. Subject to whether your Honour quashes them or not – yes, that is what we say. We say that they are void ‑ ‑ ‑
HIS HONOUR: Now, that argument is either right or wrong. Let us assume it is wrong and that the certificates of taxation, whatever else they did or did not do, effectively quantified the costs the subject of Justice Moore’s orders. On that assumption, Ms Tesoriero then took proceedings before Justice O’Ryan for an order for the sale of land to satisfy the orders for costs.
MR KNAGGS: Yes.
HIS HONOUR: That drives you back to your argument that the Family Court has no power to make an order for the sale of land in order to satisfy an order for costs at least if the costs had to be taxed.
MR KNAGGS: I am sorry, your Honour, would you repeat that for me?
HIS HONOUR: You argue, as I understand it, that the Family Court has no power to make an order for the sale of land in order to satisfy an order for costs in cases where the costs had to be quantified by taxation.
MR KNAGGS: Yes.
HIS HONOUR: What is your answer to Mr Kearney’s argument about the construction of the Rules of the Family Court in that regard?
MR KNAGGS: Your Honour, the answer is that because the Rules set out precisely how enforcement can be effected any method of enforcement that it is not included is against the will of the Parliament in promulgating the Act and the Rules.
If I can stray slightly into what must have been the public policy in the applicant’s submission, the public policy would seem to have been to get enforcement of such a common event as a taxation certificate that might only be for $4,000 or $5,000 out of the realm of the specialist Family Court and over into the realm of Local Courts and District Courts that specialise in enforcement for “judgments for debt”, which is what the Rules specifically say a certificate of taxation is, not just a judgment but a judgment for debt. In our submission, Parliament is saying the Family Court has no longer any jurisdiction for that enforcement.
HIS HONOUR: It is correct, is it, of Mr Kearney to say that the proceedings before Justice O’Ryan were initiated by Ms Tesoriero?
MR KNAGGS: Your Honour, I was just looking at his judgment. I am not certain because ‑ ‑ ‑
HIS HONOUR: It must name the parties, must it not?
MR KNAGGS: The application, as my friend just said earlier, to Justice O’Ryan was an application, originally, by Mr Jacups because he wanted reviews of ‑ ‑ ‑
HIS HONOUR: Who was the moving party in seeking the order for the sale of the land? What was the name of that person?
MR KNAGGS: Your Honour, I do not think that his Honour sets that out. What he says is this, “Enforcement Proceedings”.
In her affidavit sworn on 12 November 2001 Frances Edwards –
who was then a partner of the firm of solicitors –
described proceedings for enforcement which were previously undertaken by the respondents in the Local Court.
HIS HONOUR: Mr Knaggs, was there an originating process in relation to the application to Justice O’Ryan for the order for the sale of land, or do you not know?
MR KNAGGS: I do know, your Honour. It was a cross‑application by ‑ ‑ ‑
HIS HONOUR: Right. Well, who was the cross‑claimant?
MR KNAGGS: Your Honour, on the face of it we say – although it probably should have been tendered – his Honour refers to the “respondents” plural, and we say it was both.
HIS HONOUR: You told me a moment ago that there was a cross‑claim.
MR KNAGGS: Yes.
HIS HONOUR: Who was the cross‑claimant? What was the name of the cross‑claimant?
MR KNAGGS: Your Honour, I cannot tell from the judgment, but the judge continually refers to the “respondents” in plural as having sought the order for sale. If it were only Ms Tesoriero, then ‑ ‑ ‑
HIS HONOUR: Are you telling me you do not know who was the cross‑claimant?
MR KNAGGS: Yes, your Honour, but I do ask the Court to infer that because of the constant reference to “respondents” it included at least the firm of solicitors.
HIS HONOUR: And Ms Tesoriero?
MR KNAGGS: Your Honour, I am sorry, I cannot say that. But, your Honour, my friend said earlier that he thought that the orders were invariably sought, including the enforcement orders, on behalf of the wife. In fact, for example, Cohen J’s order of 10 July and his reasons begin this way:
Now before me is an application by the wife and the firm of solicitors . . . to remove the husband’s possessions –
et cetera.
HIS HONOUR: Let me test it this way. There was an appeal against the judgment of Justice O’Ryan to the Full Court of the Federal Court, right?
MR KNAGGS: Yes.
HIS HONOUR: Who were the parties to the appeal?
MR KNAGGS: All the parties – Jacups, appellant – this is at page 21 of Ms Rohr’s affidavit – and the solicitors as the second respondent.
HIS HONOUR: Presumably the solicitors were joined in as parties to those proceedings on the basis of the concluding words of the orders made by Justice Moore?
MR KNAGGS: Your Honour, that, or because they were named in the certificate of taxation which had been attacked before Justice O’Ryan and it was his judgment which was being appealed from.
HIS HONOUR: Now, when was the point first taken that the certificates of taxation should not have identified the solicitors as the persons to whom the costs were payable?
MR KNAGGS: It was taken in the appeal, your Honour.
HIS HONOUR: In the appeal?
MR KNAGGS: Yes – I am sorry, the appeal of which the first page is at page 22 of the affidavit of Ms Rohr. 24 July 2002 was the date of the decision. In that decision their Honours showed that they considered the question because they say ‑ ‑ ‑
HIS HONOUR: Are there paragraph numbers?
MR KNAGGS: Yes, they are numbered.
HIS HONOUR: Paragraph numbers?
MR KNAGGS: Paragraph 4, Kay J, page 28, and he says this:
it has been drawn to our attention that the Certificates of Taxation that ultimately issued did not issue in the name of the wife in the proceedings but issued in the name of her solicitors. That would be a procedural irregularity, which, in my view, could not stand as the basis for a successful appeal.
The other judges contented themselves by saying they would dismiss the appeal and they agree.
HIS HONOUR: Does it follow from what you say that the Full Court of the Family Court described the fact that the solicitors were said in the certificate of taxation to be the people to whom the costs were payable as a procedural irregularity?
MR KNAGGS: Yes, your Honour.
HIS HONOUR: Does that mean that the Full Court thought that Ms Tesoriero should have been named in the certificates of taxation?
MR KNAGGS: It seems to, your Honour, because it says:
it has been drawn to our attention that the Certificates . . . did not issue in the name of the wife in the proceedings but issued in the name of her solicitors. That would be a procedural irregularity, which . . . could not stand as the basis for a successful appeal.
HIS HONOUR: Now, what is the explanation that was given as to why there was no application for special leave to appeal to this Court from the decision of the Full Court?
MR KNAGGS: Your Honour, I am not aware of why that was not done.
HIS HONOUR: There is no evidence?
MR KNAGGS: I think my friend ‑ ‑ ‑
HIS HONOUR: If there is no evidence, that is the answer to my question.
MR KNAGGS: Yes, your Honour.
HIS HONOUR: You have been given an adjournment for the purpose of putting on evidence to deal with matters of this kind. If there is no evidence, that is a sufficient answer to my question.
MR KNAGGS: Yes, there is no evidence, your Honour. Your Honour, in response to the point my friend made that costs were directed to be paid to solicitors not clients because it divorced the parties from the process, in my submission, if it is right – and I think it might be but I am not certain; I do not have the range of experience that my friend would have – but if that is why it is done, in my submission, that is a very wrong reason for doing it because the parties are not supposed to be divorced from any process at all, least of all the costs in the cost collection. But if it is a matter of practicality, then it is one that is not only outside the jurisdiction if it ends up in a certificate of taxation, but also founded on wrong reasons.
Your Honour, the only other thing I want to say in reply is that the orders for sale and the other enforcement orders were generally speaking at the application of both – when I say “generally speaking”, there may be an exception. But what, for example, the order of issue of the writ of possession before Justice Rowlands on 13 March says in his order is this:
UPON APPLICATION made to Justice Rowlands this day and upon hearing, Mr Doolan, Solicitor for the Applicants –
and the applicants are stated to be Barkus Edwards Doolan and the mother is not mentioned at all; the application is on behalf of Barkus Edwards Doolan, applicants. It may not weigh very much with your Honour’s decision, but my friend did say that he thought all the orders were made at the suit of the wife and I just wanted to correct that. I have nothing other ‑ ‑ ‑
HIS HONOUR: Thank you. I will reserve my decision in this matter. The Court will adjourn.
AT 3.55 PM THE MATTER WAS ADJOURNED
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Stay of Proceedings
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