Laurie and Child Support Registrar and Filho (No.2)
[2009] FMCAfam 971
•14 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAURIE & CHILD SUPPORT REGISTRAR and FILHO (No.2) | [2009] FMCAfam 971 |
| CHILD SUPPORT – Costs – applicant’s appeal against a decision of the SSAT unsuccessful – costs sought by Child Support Registrar and second respondent payee – costs order made in accordance with Schedule 1 of the Federal Magistrates Court Rules 2001. |
| Child Support (Assessment) Act 1989, s.100 Federal Magistrates Court Amendment Rules 2001 (No.1), r.2 |
| Laurie & Child Support Registrar and Filho [2009] FMCAfam 721 |
| Applicant: | MR LAURIE |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS FILHO |
| File Number: | SYC 2252 of 2008 |
| Judgment of: | Sexton FM |
| Hearing date: | 7 September 2009 |
| Date of Last Submission: | 7 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr G. Potkonyak |
| Solicitors for the first Respondent: | Australian Government Solicitors |
| Solicitors for the second Respondent: | No appearance |
ORDERS
The applicant pay the Child Support Registrar’s costs of the appeal from a decision of the Social Security Appeals Tribunal in the sum of $12,463.80, such sum to be paid to the first respondent within 2 months of the date of this order.
The applicant pay the Child Support Registrar’s costs of the costs application in the sum of $3,080.00, such sum to be paid to the first respondent within 2 months of this order.
The applicant pay Ms Filho’s costs of the appeal in the sum of $1,330, such sum to be paid to Ms Filho within 2 months of the date of this order.
IT IS NOTED that publication of this judgment under the pseudonym Laurie & Child Support Registrar & Filho is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2252 of 2008
| MR LAURIE |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS FILHO |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern costs of proceedings concerning child support. Mr Laurie, the father of two children, [X] aged 15 and [T] aged 12, appealed against a decision of the Social Security Appeals Tribunal. The appeal was dismissed on 10 July 2009. The two respondents to the appeal, the Child Support Registrar (First Respondent) and the payee mother, Ms Filho (Second Respondent), seek costs. The Registrar also seeks an order for costs of the costs proceedings.
The Child Support Registrar was represented by Mr Gouliaditis, Australian Government Solicitor, and Mr Laurie was represented by Mr Potkonyak, solicitor. Ms Filho did not appear, but Mr Potkonyak and Mr Gouliaditis agreed that Ms Filho’s application for costs should proceed on the papers.
The Child Support Registrar relied on the written and oral submissions of Mr Gouliaditis. Ms Filho relied on an Application in a Case supported by affidavit, filed on 4 September 2009, and on paragraphs 1-24 of the submissions of the Child Support Registrar. Mr Laurie did not file any material in response to either costs application. Mr Potkonyak made oral submissions.
The Registrar seeks costs of the appeal and costs of the costs application calculated in accordance with Schedule 1 of the Federal Magistrates Court Rules 2001 in the amount of $18,238.56, such sum to be paid within one calendar month.
Ms Filho seeks costs in the amount of $1,804.00, such sum to be paid within one calendar month.
Mr Laurie opposes both applications.
Legal principles
Pursuant to s.100 of the Child Support (Assessment) Act 1989, the question of costs in child support proceedings is governed by the provisions of the Family Law Act 1975. In accordance with s.117(1) of the Family Law Act 1975 the usual rule in family law proceedings is that each party pay his/her own costs. However, s.117(2) provides that the court may order costs if it is of the opinion that there are circumstances that justify it in doing so, subject to s.117(2A).
When the court is considering what order should be made the court must have regard to the matters referred to in s.117(2A) subsections (a) to (g):
a)the financial circumstances of each party;
b)whether any party is in receipt of assistance by way of legal aid;
c)the conduct of the parties;
d)whether the proceedings were necessitated by a failure of a party to comply with a previous court order;
e)whether a party to the proceedings has been wholly unsuccessful;
f)whether a party has made an offer in writing to the other party to settle the proceedings and the terms of any such offer; and
g)any other relevant matter.
The Registrar relies on sub-sections (a), (c), (e) and (g) of s.117(2A) of the Act as reasons for the Court to exercise its discretion to make a costs order against the applicant. As earlier noted, Ms Filho adopts the Registrar’s submissions as far as they are relevant. I agree these are the relevant subparagraphs to which the Court must have regard in the circumstances of this case.
The financial circumstances of the parties – s.117(2A)(a)
The Child Support Registrar is a Federal Government Agency funded by the taxpayers of Australia.
Ms Filho adduces no evidence as to her financial circumstances.
Mr Laurie adduces no evidence as to his current financial circumstances. Mr Potkonyak asserts from the Bar Table that
Mr Laurie “has no assets”. He does not refer to any affidavit evidence or any other material in support of this assertion.
I am unable to make findings as to either Mr Laurie’s financial position or as to Ms Filho’s financial position. I therefore have no regard to either party’s financial position in determining these costs applications.
The conduct of the parties – s.117(2A)(c)
Mr Gouliaditis submits there are a number of factors to which the court should have regard in relation to Mr Laurie’s conduct:
a)The delay in the appeal proceedings being finalised:
i)Three hearing dates were vacated. The original hearing date of 16 September 2008 was vacated when Mr Laurie sought an adjournment to await the result of a legal aid review application. On that date, the Court noted that the matter would proceed on the next occasion whether or not the applicant was successful in his application for legal aid, and whether or not the applicant remained self-represented.
ii)On the adjourned date, 25 November 2009, Mr Laurie appeared unrepresented. The time allocated for the hearing of the appeal was taken up by the hearing of Mr Laurie’s application for the appointment of Mr Potkonyak as his lay advocate in the appeal proceedings, which was refused. The hearing of the appeal was adjourned to 2 December 2008.
iii)The third hearing date of 2 December 2008 was vacated in chambers because Mr Laurie travelled to Greece following the death of his brother, just prior to that date. Mr Laurie did not advise the court on 25 November 2008 that he would be unable to appear on 2 December 2008, although he was aware of his need to travel at that time.
b)Mr Laurie’s failure to comply with court orders and rules:
i)The applicant did not serve the Notice of Appeal or any other material filed in support of the appeal upon Ms Filho, the second respondent, as required by rule 25A.07 of the Federal Magistrates Court Rules 2001.
c)The Applicant’s conduct in prosecuting the appeal was otherwise improper:
i)On 4 August 2008, Mr Laurie filed an Application in a Case seeking an order that the court provide him with a copy of the Tribunal transcript. This Application was not served upon the Registrar, and the Registrar was not advised of the Court date. Federal Magistrate Jarrett subsequently dismissed the application on 19 August 2008 in the absence of the parties.
ii)Mr Laurie raised new arguments almost a year after the original notice of appeal was filed by filing a notice under section 78B of the Judiciary Act 1903 on 13 March 2009.
iii)The issues raised in the 78B notice were not referred to in the Amended Notice of Appeal (Child Support)[1], relied on by the applicant in his appeal from the SSAT decision.
iv)The applicant failed to tender evidence which would indicate that all State and Territory Attorney-Generals had been served with the 78B notice, and could not provide the Court with a copy of any of the nine letters he had sent. Instead, the Court was required to rely on the undertaking of Mr Laurie’s legal representative that the required notice had been given.
[1] Filed on 23 May 2008
Mr Potkonyak made no submissions in relation to conduct issues.
I agree with the submissions of Mr Gouliaditis under this factor. On the question of delay, I also have regard to Mr Laurie’s decision to apply for a lay advocate to appear for him, shortly prior to the date set down for hearing, in circumstances when Mr Laurie had abandoned his opportunity to apply for a Mackenzie friend to assist him[2].
[2]
The applicant was wholly unsuccessful – s.117(2A)(e)
The Court found no merit in the constitutional issues raised by
Mr Laurie and Mr Laurie’s appeal against the decision of the Social Security Appeals Tribunal was dismissed[3]. Mr Laurie was therefore wholly unsuccessful in the proceedings.
[3] Laurie & Child Support Registrar and Filho [2009] FMCAfam 721
Any other relevant matter – s.117(2A)(g)
I accept the Registrar’s further submission that Mr Laurie sought to challenge the constitutional validity of provisions of the child support legislation, after the High Court had already comprehensively addressed and determined the very issues he raised. The court determined that none of these arguments advanced on behalf of
Mr Laurie, had any merit.
In addition, I accept the Registrar’s submission that the grounds set out in the notice of appeal relied on by Mr Laurie were effectively abandoned at the time of the appeal hearing only after the Registrar had spent significant time responding to them. Mr Potkonyak also contradicted in his submissions the reasons set out in the notice of appeal and written submissions as to his reason for failing to lodge an objection to the Registrar’s decision of 18 December 2000.
Mr Potkonyak made no submissions on the factors to which the court must have regard in s.117(2A) in relation to either the Registrar’s or Ms Filho’s application for costs. Instead Mr Potkonyak referred me to paragraph 44 of my reasons for decision in which I quoted His Honour Chief Justice Gleeson in the 2002 High Court decision of Luton v Lessels. He said the Child Support Registrar cannot decide questions of fact, which is what the Registrar has done in assessing
Mr Laurie’s child support liability. This was the submission made by Mr Potkonyak in the substantive appeal proceedings. Mr Potkonyak said words to this effect “we have applied the law not to facts, but to fiction.” He said that Mr Laurie has no assets so “the practical effect is nothing.” He said he opposes the Registrar’s application for costs for the same reasons as put in the substantive appeal.
In relation to Ms Filho’s application for costs, Mr Potkonyak submitted that “the joinder of the mother was wrong, so this application is wrong.” This issue was raised by Mr Potkonyak in the substantive appeal proceedings and addressed in my reasons for judgment.
Mr Potkonyak asked that the matter be dealt with by the Full Court. I found Mr Potkonyak’s submissions confused.
Decision
Having regard to the matters I have referred to under subparagraphs (c), (e) and (g) of s.117(2A) of the Act, I find it appropriate in the circumstances of this case to make an order for costs in favour of the Child Support Registrar, and in favour of Ms Filho. Given the Child Support Registrar has been successful in the costs application, and
Mr Potkonyak for Mr Laurie did not challenge the submissions made by the Registrar in relation to the factors referred to by the Registrar under s.117(2A), I also find it appropriate to make an order for costs of the costs application in favour of the Child Support Registrar.
Quantum
In accordance with Schedule 1 of the Rules[4], the Child Support Registrar seeks costs in the sum of $18,238.56 in costs for the substantive proceedings and costs for the costs proceedings, which includes $128.56 for disbursements.
[4] Federal Magistrates Court Rules 2001
Rule 21.10 of the Federal Magistrates Court Rules 2001, states:
Unless the Court otherwise orders, a party entitled to costs in a proceeding… is entitled to:
(a) costs in accordance with Part 1 of Schedule 1; and
(b) disbursements properly incurred.
The Registrar has applied the schedule, as amended by the Federal Magistrates Court Amendment Rules 2009 (No 1), in relation to costs being sought, but did not have regard to the fact that the changes made to the schedule took effect from the day after registration, being 7 April 2009[5]. Rule 2 of the Federal Magistrates Court Amendment Rules 2009 (No 1) states that “These Rules commence on the day after they are registered.” In this case, that day was 7 April 2009.
[5] Federal Magistrates Court Amendment Rules 2009 (No.1), r.2
Mr Gouliaditis submits that the latest change to Schedule 1 should be applied retrospectively. I do not accept this submission. Unless the amending rules make specific provision for retrospective application, the amending rule applies as stated in the amending rule.
I therefore find the Child Support Registrar’s costs, calculated in accordance with Schedule 1, as follows:
| Costs associated with amended notice of appeal filed on 23 May 2008 | |
| Stage 1: Opposing application up to completion of first court day | 1,500 |
| Court attendance (first return date of application): half a day + advocacy loading – 10 June 2008 | 1,125 |
| Court attendance: half a day + advocacy loading – 16 September 2008 | 1,125 |
| Court attendance: half a day + advocacy loading – 25 November 2008 | 1,125 |
| Preparation for final hearing for a one day matter – lump sum | 3,195 |
| Court attendance: half day + advocacy loading – 25 March 2009 | 1,125 |
TOTAL: | 9,195 |
| Costs associated with application for lay advocate to represent applicant | |
Stage 1: Opposing application | 1,500 |
Taking judgment – 28 November 2008 | 205 |
TOTAL: | 1,705 |
| Costs associated with application for leave to amend notice of appeal to deal with matters raised in s.78B notice filed on 13 March 2009 | |
Stage 1: Opposing application | 1,500 |
TOTAL: | 1,500 |
Costs of the costs application | |
Stage 1: Costs application | 1,760 |
| Court attendance half day + advocacy loading – 7 September 2009 | 1,320 |
TOTAL | 3,080 |
Total Disbursements | 63.80 |
FINAL TOTAL: | 15,543.80 |
The question of quantum of costs is discretionary. I have considered each item listed in the Registrar’s submissions. I have excluded costs listed for the event of 10 July 2009 as, according to the Court record, there was no appearance by the Registrar on that date. I have excluded costs listed for taking judgment in these proceedings, as I had advised the parties they were not required to attend. I have excluded travel costs included in the figure for disbursements as the Schedule does not provide for transport costs when under 2 hours.
Having regard to the findings I have made in relation to the applicant’s conduct in these proceedings, I find the total costs set out in the above table reasonable. I propose to make an order in that sum in favour of the Child Support Registrar.
Quantum – Ms Filho
Ms Filho claims an amount of $1,804.00. Ms Filho does not provide a copy of an invoice to verify this figure as her counsel’s fees. In any event, if these are the fees she was charged, I am not satisfied she has grounds for indemnity costs. In her affidavit in support of her application, sworn on 3 September 2009, Ms Filho deposes to having incurred fees for Mr Maurice of counsel to appear on her behalf on
25 and 28 November 2008. Using Schedule 1 as a guide, I will allow costs in the sum of $1,330 in favour of Ms Filho.
Both the Registrar and Ms Filho seek an order that any costs be paid by Mr Laurie within 1 month. I will allow Mr Laurie 2 calendar months to pay.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Skye Owen
Date: 14 September 2009
On 10 June 2008, the matter came before his Honour Federal Magistrate Lindsay. Mr Laurie’s oral application for the appointment of Mr F as a McKenzie Friend was dismissed. His Honour ordered that the applicant file and serve any affidavit in relation to the appointment of a McKenzie Friend or in relation to any application for assistance by Mr F by 2 September 2008. The applicant did not comply with this Order. When the matter was before the Court on 16 September 2008, the court noted that
Mr Laurie would need to show cause why he had not complied with orders of 10 June 2008 in relation to an application for a McKenzie friend before any further application for a McKenzie friend would be considered.
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