Maple and Niu and Anor (No.2)
[2018] FCCA 26
•10 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAPLE & NIU & ANOR (No.2) | [2018] FCCA 26 |
| Catchwords: CHILD SUPPORT – AAT APPEAL – Application for costs by First and Second Respondents following dismissal of the appeal. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.44AAA |
| Cases cited: Baldwin & Bartlett [2017] FCCA 928 |
| Applicant: | MR MAPLE |
| First Respondent: | MS NIU |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | NCC 1626 of 2016 |
| Judgment of: | Judge Terry |
| Hearing date: | 20 December 2017 |
| Date of Last Submission: | 20 December 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 10 January 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr Williams |
| Solicitors for the First Respondent: | Attwaters |
| Solicitors for the Second Respondent: | Mills Oakley Lawyers |
ORDERS
The applicant pay to the First Respondent’s costs of and incidental to the Applicant’s AAT appeal fixed in the sum of $6,948.00, such amount to be paid within 3 months of the date of these orders.
The Applicant pay to the Second Respondent’s costs of and incidental to the Applicant’s AAT appeal fixed in the sum of $6,948.00, such amount to be paid within 3 months of the date of these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Maple & Niu & Anor (No.2) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1626 of 2016
| MR MAPLE |
Applicant
And
| MS NIU |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 29 September 2017 I made an order dismissing the Applicant’s appeal from a decision of the Administrative Appeals Tribunal dated 11 May 2016.
The First Respondent Ms Niu and the Second Respondent Child Support Registrar now each seek an order that the Applicant pay their costs of and incidental to the appeal fixed in the sum of $6,948.00.
The Second Respondent’s application was made by way of filing an Application in a Case and a brief supporting affidavit. The First Respondent’s application was made orally on 20 December 2017; her solicitor having sought through my Associate to have the matter listed that day.
Following the matter being called on I stood it in the list with a request that the First Respondent’s counsel prepare some brief submissions in support of his application.
The Second Respondent then also took the opportunity to prepare some written submissions.
The Applicant filed an Affidavit on 18 December 2017. While the matter was stood down he also prepared some written submissions.
After receiving the written submissions I reserved my decision due to the busy list I had before me that day.
The issues to be determined
The issues I need to determine are:
i)Whether the legislation which applies to the costs applications is s. 117 of the Family Law Act 1975 as the Applicant contends or s. 79 of the Federal Circuit Court of Australia Act 1999 as the First and Second Respondent’s contend.
ii)The principles which apply to the exercise of the court’s discretion to award costs if s. 79 is the applicable section.
iii)The quantum of costs if an order for costs is to be made.
The applicable law
The First and Second Respondents are correct in contending that the section which applies to the award of costs in an AAT appeal matter is s.79 of the Federal Circuit Court of Australia Act 1999 and not s.117 of the Family Law Act 1975.
S.79(2) provides that a Judge of the Federal Circuit Court has the jurisdiction to award costs in all proceedings before the Court other than proceedings in respect of which any other Act provides that costs must not be awarded.
S.79(1) provides that this section does not apply to family law or child support proceedings; s. 117 of the Family Law Act 1975 applies to those proceedings. However although the AAT Appeal which I heard was an appeal from a child support first review decision, it was not a child support proceeding for the purpose of s.79(1).
The term “family law or child support proceedings” is defined in s.5 of the Federal Circuit Court of Australia Act 1999 as follows:
Family law or child support proceedings means proceedings under:
(a) the Family Law Act 1975; or
(b) the Child Support (Assessment) Act 1989; or
(c) the Child Support (Registration and Collection) Act 1988.
The appeal I heard was brought pursuant to s.44AAA of the Administrative Appeals Tribunal Act 1975 which provides that a person aggrieved by a decision of the AAT may appeal to the Federal Circuit Court on a question of law. The appeal was a proceeding under the Administrative Appeals Tribunal Act 1975, not a proceeding under the Family Law Act 1975, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.
The Applicant referred me to Cousins & Peake(No.2) in which s.117 of the Family Law Act 1975 was applied when a costs application was made in a child support matter but that case does not help him; it did not involve an AAT Appeal, it involved an application for departure under the Child Support (Assessment) Act 1989.[1]
[1] Cousins & Peake (No.2) [2017] FCCA 2431
The discretion to award costs
Clearly I have discretion as to whether to award costs. S.79(3) of the Federal Circuit Court of Australia Act 1999 provides that:
Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or Judge.
However both the First Respondent’s counsel and the solicitor for the Second Respondent pressed upon me that my discretion was limited and that absent special circumstances costs should follow the event as was normally the case in civil litigation. Once again, they are correct.
The solicitor for the Second Respondent referred to the following passage from the decision of the Full Court of the Federal Court in Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq):
The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognises the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party[2]
[2] Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136 at [9]
The First Respondent’s Counsel referred me to Re Kimberley John Hughes v Western Australian Cricket Association & Ors [1986] FCA 382 in which Justice Toohey said as follows:
…ordinarily costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order: Ritter v Godfrey (1920) 2KB 47.[3]
[3] Re Kimberley John Hughes v Western Australian Cricket Association & Ors [1986] FCA 382
The First Respondent’s Counsel and the Second Respondent’s solicitor both submitted that there were no special circumstances in this case and asked me to have regard to Baldwin & Bartlett & Anor, a Federal Circuit Court decision in which Judge Harland awarded costs against the unsuccessful appellant in an AAT Appeal matter. [4]
[4] Baldwin & Bartlett [2017] FCCA 928
The Applicant principal arguments for why I should not order that he pay costs were that he lacked the capacity to pay and that an order for costs would cause hardship not only for him but for the parties’ child [X].
The Applicant said that he was unemployed and in receipt of Newstart Allowance; he owned no property; he now had the care of [X] whose mental health was in a parlous state; and due to the arrears created by the AAT decision he was not currently receiving any child support from the First Respondent because although she was assessed to pay child support his arrears greatly exceeded the annual amount she was required to pay.[5]
[5] He also asserted that his appeal had merit but given my decision in respect of the appeal I reject that submission
He submitted that the First Respondent was in a strong financial position both in respect of both income earning capacity and property ownership.
If s.117 of the Family Law Act 1975 applied then these matters would be relevant (although not necessarily determinative) but s.117 does not apply.
According to the decided cases circumstances which may lead a court in the exercise of its discretion to refuse to award costs in areas of law where costs usually follow the event include the conduct of the parties; that the proceedings involved a matter of public interest; and that offers of settlement had been made. There are also occasions when costs are apportioned because there has been a mixed outcome in the proceedings.
None of these matters apply in this case. The Applicant was wholly unsuccessful, neither the First or Second Respondent’s engaged in conduct which has a bearing on whether costs should be awarded (for example by running unsuccessful arguments although overall successful) and there was no public interest aspect to this matter. The appeal by the Applicant was wholly a challenge to the Tribunal’s fact finding. He did not for example raise an unusual matter of law the determination of which might have had general application.
I do feel some sympathy for the Applicant. The AAT decision meant that he was required to pay arrears of child support of $15,000.00. [X] has since come into his care and he is now entitled to child support from the First Respondent but her payments are being offset against the arrears and he is not in fact receiving any child support. An award of costs is only going to make his financial position worse which has the potential to impact adversely on the parties daughter.
However my sympathy for him is limited because he is the author of his own misfortune; consideration of the Tribunal’s reasons for decision suggest that the Applicant should have regard to the old saying “Oh what a tangled web we weave when first we practice to deceive.”
In any event I cannot have regard to the Applicant’s financial circumstances in deciding whether in the exercise of my discretion I should award costs. His financial situation might be relevant to the orders which are made if and when an enforcement application is brought to recover the costs but it is not relevant to whether I should order costs.
The Applicant was wholly unsuccessful in his appeal against the AAT decision and I have no option but to make costs orders against him.
The quantum of costs
Rule 21.10 of the Federal Circuit Court Rules 2001 applies to the award of costs in an AAT appeal heard by this court and provides that unless the court otherwise orders a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to costs in accordance with Parts 1 and 2 of Schedule 1 and disbursements properly incurred.
Division 2 of Part 2 of Schedule 1 is headed “Costs for appeal of a Tribunal or Child Support Registrar decision” and it provides that the applicable amount for a proceeding which concludes at final hearing is $6,948.00.
The First and Second Respondents both sought costs fixed in this amount. This is an entirely reasonably proposal and I intend to make the orders for costs sought by the Respondents.
Time to pay
No party addressed the issue of whether the Applicant should be given time to pay. I intend to give him three months to pay particularly because the Second Respondent may decide to take steps to enforce the debt. It will give the Applicant time to think through the issue of whether he should make any effort to re-organise his affairs so that he can pay the amount due.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 10 January 2018
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