Paxton and Child Support Registrar & Anor
[2016] FamCAFC 116
•1 July 2016
FAMILY COURT OF AUSTRALIA
| PAXTON & CHILD SUPPORT REGISTRAR AND ANOR | [2016] FamCAFC 116 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the father sought leave to appeal from the decision of a Federal Magistrate dismissing his application for an extension of time to appeal the decision of the Social Security Appeals Tribunal – Where the mother and the child live in the United States of America – Where the Social Security Appeals Tribunal endorsed the validity of the determination made by the Child Support Registrar to register an overseas maintenance liability under the Child Support (Registration and Collection) Act 1988 (Cth) – Where appeals from the SSAT are confined to questions of law – Where the Federal Magistrate found the SSAT did not err in law – Where the father’s grounds of appeal have no reasonable prospect of success – Application for leave to appeal dismissed. FAMILY LAW – COSTS – Where the Child Support Registrar sought indemnity costs of resisting the father’s unsuccessful application for leave to appeal – Registrar’s costs reserved – Parties to file written submissions. FAMILY LAW – CROSS-APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the Child Support Registrar sought leave to appeal from the decision of a Federal Magistrate dismissing the Registrar’s application for costs of the father’s unsuccessful application for leave to appeal – Leave to appeal refused – No order as to costs. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss 25, 95, 106, 107A, 110B Family Law Regulations 1984 (Cth), reg 36 |
| CDJ v VAJ (1998) 197 CLR 172 Crowe-Maxwell v Frost (2016) 111 ACSR 583 Gronow v Gronow (1979) 144 CLR 513 Kohan and Kohan (1993) FLC 92-340 Paxton & Child Support Registrar and Anor [2015] FamCAFC 121 Randwick City Council v Fuller (1996) 90 LGERA 380 |
| APPLICANT: | Mr Paxton |
| FIRST RESPONDENT: | Child Support Registrar |
| SECOND RESPONDENT: | Ms Lafferty |
| FILE NUMBER: | PAC | 6065 | of | 2011 |
| APPEAL NUMBER: | EA | 145 | of | 2012 |
| DATE DELIVERED: | 1 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Aldridge & Austin JJ |
| HEARING DATE: | 23 June 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 4 October 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1181 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Tucker |
| SOLICITOR FOR THE FIRST RESPONDENT: | Australian Government Solicitor |
| FOR THE SECOND RESPONDENT: | No appearance |
Orders
All applications in the appeal are dismissed.
The applications for leave to appeal and cross-appeal against the orders of Halligan FM made on 4 October 2012 in file number PAC 6065/2011 are dismissed.
The first respondent’s application for costs of and incidental to the applicant’s application for leave to appeal is reserved and for that purpose:
(a)The first respondent shall file and serve within 21 days hereof:
(i)Any evidence upon which his costs application relies; and
(ii)Written submissions in respect of costs.
(b)The applicant shall file and serve within 42 days hereof:
(i)Any evidence upon which he wishes to rely to resist the costs application; and
(ii)Written submissions in respect of costs.
(c)The first respondent’s application for costs will thereafter be determined in chambers on the evidence and submissions filed.
No order as to costs in respect of the first respondent’s application for leave to appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paxton & Child Support Registrar and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 145 of 2012
File Number: PAC 6065 of 2011
| Mr Paxton |
Applicant
And
| Child Support Registrar |
First Respondent
And
| Ms Lafferty |
Second Respondent
REASONS FOR JUDGMENT
On 4 October 2012, Halligan FM (as his Honour then was) made orders that achieved two things.
First, his Honour refused to extend time to entertain the appeal of Mr Paxton (“the applicant”) against an earlier decision of the Social Security Appeals Tribunal (“the SSAT”) endorsing the validity of the determination made by the Child Support Registrar (“the Registrar”) to register an overseas maintenance liability under the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration Act”), and so the appeal was dismissed (Orders 1 and 2).
Secondly, his Honour refused the Registrar’s application for costs against the applicant, consequent upon dismissal of the appeal (Order 3).
The applicant appealed against the two orders adversely affecting him and the Registrar cross-appealed against the order adversely affecting him. The appeal and cross-appeal are each made to the Full Court pursuant to s 107A(1)(a) of the Registration Act, so leave to appeal is required in both instances.
For the reasons which follow, leave to appeal should be refused in respect of the applicant’s proposed appeal and the question of the Registrar’s costs in respect of that application should be reserved, and further, leave to appeal should be refused in respect of the Registrar’s proposed cross-appeal with no order as to costs.
Ms Lafferty (“the second respondent”) did not appear at the hearing before this Court. She was ordered to file and serve her written summary of argument by 10 June 2016, but did not do so until the afternoon of 21 June 2016 – little more than a day before the hearing. The written summary of argument comprised 51 pages of text, much of which did not address the proposed grounds of appeal, and some of which was rambling argument in support of her apparent applications for this Court to declare the applicant a vexatious litigant and to make orders forcing him to pay outstanding child support. In view of the flagrant breaches of r 22.22 of the Family Law Rules 2004 (Cth) (“the Rules”), which proscribes the substance and form of written submissions, the second respondent’s written submissions were not taken into account.
There is a ready explanation for the long delay from the time the orders under appeal were made until the hearing by this Court of the applications for leave to appeal and cross-appeal. In 2013 the applicant’s appeal was deemed abandoned due to his contravention of the Rules and the cross-appeal was not separately pursued, but in 2015 the applicant successfully applied for
re-instatement of his appeal (see Paxton & Child Support Registrar and Anor [2015] FamCAFC 121). The parties’ respective applications for leave to appeal were, as is common, heard with the appeal and cross-appeal since the merit of the appeal and cross-appeal influenced the decisions about the grant of leave in each instance.
Relevant Background
The applicant and second respondent are the parents of a son now aged 24 years. Their dispute over child support relates to him.
At all relevant times, the son lived with the second respondent in the United States of America. From time to time, for the purpose of establishing the applicant’s obligation to contribute to the financial support of the son, both the Registrar and American courts made findings of fact about the applicant’s place of residence and, although the applicant now asserts the incorrectness of one or more of those past findings, none have been impugned.
In February 2008, an American court determined that the applicant owed USD $10,314.82 as his contribution towards the son’s maintenance (“the American order”). The applicant was advised of his entitlement to challenge that finding, but the evidence is silent as to whether he actually did so, notwithstanding the Registrar’s unconfirmed belief he did so unsuccessfully.
In November 2009, the American authorities requested the Registrar to register and enforce the American order in Australia. In June 2010, the Registrar again confirmed the applicant was an Australian resident and then, in August 2010, registered the American order as a “registrable overseas maintenance liability” under s 25 of the Registration Act, despite the applicant’s objections. By July 2010, the applicant’s liability under the American order had increased to USD $20,159.58, which converted to AUD $22,173.52.
The applicant objected to the Registrar’s decision to register the American order, but his objection was disallowed in April 2011. The objections officer specifically noted at that time:
[The applicant] has not objected to the [preceding] residency decisions and therefore I have not turned my mind to those decisions.
The applicant applied to the SSAT in May 2011 to review the decision made by the objections officer, despite being advised by his own lawyers that his prospects of success were negligible. As foreseen, the SSAT affirmed the objection officer’s decision in August 2011.
The SSAT decision was sent to the applicant under cover of a letter dated 6 September 2011. The letter informed him he had 28 days from the time of his notification of the decision to lodge any appeal. It is not known when the applicant actually received that letter with the enclosed SSAT decision, but he is presumed to have received it no more than nine business days after the date endorsed on the letter (ss 160, 163 of the Evidence Act 1995 (Cth)), which was by 19 September 2011 at latest.
The applicant therefore had until 17 October 2011 at the latest to lodge his appeal with the Federal Magistrates Court (as the Federal Circuit Court then was) against the SSAT decision, but his appeal was not filed until 29 December 2011, thereby necessitating an application for an extension of time within which to file the appeal.
The applicant’s intended appeal to the Federal Magistrates Court was confined to questions of law (s 110B of the Registration Act). Halligan FM heard the matter on 4 October 2012, found no error of law on the part of the SSAT, dismissed the application to extend time within which to appeal, dismissed the appeal, and dismissed the Registrar’s application for costs against the applicant. Again, that outcome should have come as no surprise to the applicant because his own lawyers earlier advised him that his application and intended appeal had no prospects of success.
By the Notices of Appeal and Cross-Appeal filed in this Court, the applicant and Registrar respectively seek leave to appeal against the orders made by Halligan FM. Even if leave were granted to prosecute them, the appeal cannot succeed unless the applicant can demonstrate appealable error by the primary judge in reaching his decision in October 2012 to deny him leave to appeal out of time and the cross-appeal cannot succeed unless the Registrar can demonstrate appealable error by the primary judge in refusing his application for costs.
Constitutional issue
On 20 March 2013 the applicant filed a Notice pursuant to s 78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) asserting, among other things, that the matter before the Court was “one of international child support”, that the “application and interpretation” of an international treaty signed between the governments of Australia and the United States in December 2002 in respect of the enforcement of maintenance obligations was in issue, and that some provisions of the Registration Act were unconstitutional and therefore invalid.
The applicant was obliged to give written notice of the Constitutional matter/s to the Attorneys-General of the Commonwealth and each State and to each other party to the proceedings (r 6.07 of the Rules), achieved by serving the Judiciary Act Notice upon them. It remains unknown whether the applicant did so, but that should not delay determination of the proceedings.
The Judiciary Act imposes a duty upon the Court not to proceed in the cause before it unless and until reasonable time has elapsed after the Court is satisfied that notice of the cause has been given to the Attorneys-General, but that duty only obtains when the cause pending before the Court “involves a matter arising under the Constitution or involving its interpretation” (s 78B(1) of the Judiciary Act). Although the applicant does, or at least did, believe the proceedings involve a Constitutional issue, we are not so satisfied. No aspect of the applicant’s proposed appeal calls into question the interpretation or operation of the Australian Constitution and none of the current proposed grounds of appeal challenge the validity of any Commonwealth legislation. The Notice was filed by the applicant in error. Halligan FM correctly reached the same conclusion when the issue was raised before him.
Applications in the Appeal
Three Applications in an Appeal filed by the applicant were pending before the Court, being those filed on 2 September 2015, 8 April 2016, and 21 April 2016.
The first two applications sought to adduce fresh evidence in the appeal, which evidence comprised many documents and some sworn evidence. The documents were historical, extending back to 2006, and the subject evidence was contained in affidavits not sworn by the applicant until 2013, well after the decision made by Halligan FM. The Registrar opposed the first application, but neither consented to nor opposed the second application.
The third application sought leave for subpoenae to issue to the Registrar causing him to produce to the Court in these proceedings “tapes and transcripts” of all telephone calls between the second respondent and the Registrar’s delegates in 2006, 2007, and 2008. The Registrar opposed the third application.
The reception of further evidence on the appeal to this Court is governed by s 106(2) of the Registration Act, r 22.39 of the Rules, and the principles espoused by the High Court (see CDJ v VAJ (1998) 197 CLR 172).
The exercise of the discretion to admit further evidence on the appeal to this Court is unconfined by common law principles, but the discretion is not unfettered and should not be exercised so as to obliterate the distinction between appellate and original jurisdiction. Further evidence is not admitted merely because it might be useful. In the context of a case such as this one, the purpose of s 106(2) of the Registration Act (just like s 93A of the Family Law Act1975 (Cth) (“the Family Law Act”)) is to facilitate the correction of error which probably occurred because the subject evidence was not placed before the primary judge. Further evidence should not be allowed when the orders under appeal are not tainted by appealable error and the applicant is unable to assert anything more than that the orders may have been different if the evidence had been adduced at first instance (CDJ v VAJ at 202-203, 184-186, 188-189, 195-199, 217-218, 233-235, 238).
Of the further evidence proposed by the applicant, some of it was already contained within the appeal books, which he obviously overlooked. Most of the remainder of it was either available or could have been procured well prior to the hearing conducted by Halligan FM. Other than in the case of documents of indisputable provenance, the evidence proffered by the applicant was almost certainly controversial and its veracity could not be tested within the appellate procedure of this Court. The applicant could not demonstrate any appealable error on the part of the primary judge, the further evidence he proposed be adduced on appeal would likely have made no difference to the primary judge’s decision, and the further evidence would make no difference to the decision of this Court, so it should be rejected. The applicant’s applications to adduce the evidence are therefore dismissed.
As for the third application seeking leave to issue subpoenae, it is entirely misconceived. We are restricted to identification of any appealable error made by Halligan FM, who was himself restricted to identification of any errors of law made by the SSAT. The successful procurement of documents on subpoena from the Registrar would add to the body of evidence but would not assist to reveal any appealable error not already amenable to exposure from the existing history. In any event, there could be no utility issuing subpoena for the production of documents at a time after the hearing before this Court was completed. There was no ancillary application for an adjournment.
The applicant sought to argue that two other Applications in an Appeal filed by him – one on 21 May 2013 and the other on 25 June 2013 – were also still pending before the Court, but that was not so. The first was dismissed by orders made on 12 June 2013 and the second was dismissed by Ryan J on 24 June 2015 (see Paxton & Child Support Registrar and Anor at [7]-[8]).
By email dated 21 June 2016, the second respondent forwarded to the Court an Application in an Appeal that she apparently anticipated would be filed and then entertained by this Court in her absence at the hearing on 23 June 2016. She was mistaken. The Application is dismissed. The raft of restrictive and enforcement orders she proposed should, if at all, be sought from a trial judge after proper notice is given to all affected parties. Otherwise, the second respondent’s application only confirmed her opposition to the grant of any form of relief to the applicant in these proceedings.
Proposed Grounds of the Appeal
The proposed grounds of appeal promulgated by the applicant in his Amended Notice of Appeal filed on 27 May 2016 were quite different from those set out in his original Notice of Appeal filed on 1 November 2012.
Without reciting the current proposed grounds of appeal verbatim, they encompassed contentions of:
(a)“Errors of jurisdiction and jurisdiction errors” (grounds 6, 7, and 10);
(b)“Unauthorized and/or improper purpose”, allegedly on the part of the Registrar (grounds 13, 14, 16, 17, and 19);
(c)Various torts perpetrated by the Registrar, specifically being “bad faith”, “fraud”, “deceit”, and “misfeasance in public office” (grounds 20, 21, 22, and 23).
All other grounds of appeal formerly proposed were abandoned.
In expectation of his ability to sustain his contentions, the applicant proposed that this Court grant certiorari to quash all prior decisions related to the registration in Australia of the American order and order the Registrar to pay “restitution and damages” to him. In his appeal to the Federal Circuit Court from the SSAT, the applicant made similar demands for relief in expectation of establishing similar claims of impropriety against the Registrar.
The nature of the applicant’s appeals to both the Federal Circuit Court and this Court betray his misunderstanding of the appellate process. Neither the Federal Circuit Court nor this Court, each bound to the exercise of only limited statutory power, could fulfil the applicant’s expectations. Suffice to say his allegations of the Registrar’s misconduct, in all its variant forms, cannot be addressed, determined, or remedied within the present appeal; should leave be granted for it to be pursued.
The only proposed grounds of appeal even remotely directed to the efficacy of the decision made by Halligan FM in October 2012 were those that asserted “errors of jurisdiction and jurisdiction errors”, but none of those are sustainable on closer evaluation either.
Ground 6 asserts the American order was a nullity, apparently because of his perception of inconsistency between findings made by the Registrar and the American court in 2006 and 2008 about his place of residence. Self-evidently, the applicant could have lived in different places either at different times or for different purposes so there was no necessary inconsistency between the various findings about his residence, but in any event, such findings were findings of fact, not law, and they remain undisturbed. The applicant did not challenge, or alternatively he unsuccessfully challenged, those factual findings at the time they were made in either the administrative or judicial context in which they were made.
By the time the SSAT made its decision in August 2011, earlier findings about the applicant’s past places of residence were not in dispute. Before the SSAT, the applicant argued the American order was factually incorrect for other reasons, but neither the Registrar nor the SSAT had power to overturn the American order. The only issue before the SSAT was whether or not the Registrar should have registered the American order as a “registrable overseas maintenance liability” under the Registration Act. The SSAT found the Registrar was able to do so.
The applicant could only have challenged the validity of the American order in the American proceedings, or alternatively, he could have made a separate application to an Australian Court under reg 36 of the Family Law Regulations 1984 (Cth) for an order discharging or varying the American order, about which right he was advised in writing by the objections officer in April 2011. For reasons which remain unexplained, the applicant did neither, or alternatively, he tried but failed.
Ground 7 appears to assert that decisions by the Registrar about a person’s place of residence, in so far as it affects liability for or entitlement to child support, are discretionary and, inferentially, the past decision-makers ought have exercised their discretion consistently with his version of events.
If the applicant was contending that such discretionary decisions are findings of fact based on evidence adduced before the decision-maker which is directed to the various considerations that influence the outcome and of which no single consideration or combination of considerations is necessarily determinative, so much is indeed true. Importantly for present purposes though, the applicant recognises that past findings about his place of residence were factual findings. Even if one or more of those past findings was wrong, the errors were factual not legal. Halligan FM was confined to identification of any errors of law made by the SSAT. As already explained, past factual findings about the applicant’s places of residence were not under consideration before the SSAT, but even if they were, such factual errors were beyond the remedial power of the Federal Magistrates Court, as Halligan FM correctly recognised.
Ground 10 appears to assert that the decision of Halligan FM is affected by error because his Honour was deprived of some relevant evidence due to the Registrar’s failure, in breach of s 95 of the Registration Act, to disclose the totality of documents in his possession relevant to the dispute.
Section 95 of the Registration Act has since been repealed by the Tribunals Amalgamation Act 2015 (Cth), but at the time it relevantly provided as follows in respect of administrative appeals to the SSAT against decisions of the Registrar or his delegate:
(3) Within 28 days after receiving the notice under subsection (2), the Registrar must send to the SSAT Principal Member:
…
(b)a copy of every document or part of a document that:
(i)is in the possession, or under the control, of the Registrar; and
(ii)is relevant to the review of the decision.
There are two points which are fatal to the applicant’s complaint.
The SSAT referred in its decision to the documents shared between the parties pursuant to s 95(3) of the Registration Act and also to the extra documents produced individually by the applicant and respondent that formed part of the evidence. The submissions advanced by the applicant to the SSAT were predicated on those identified documents. The applicant made no complaint to the SSAT that there were other relevant documents in the Registrar’s possession which had not been produced. Nor was any such complaint later made by him to Halligan FM, it being clear that his Honour carefully invited the applicant, both well before and during the hearing, to identify and speak to all of the documents upon which he wished to rely. The complaint about an absence of relevant documents remains a bare assertion in these proceedings, devoid of evidentiary basis.
In any event, the allegedly missing documents are said by the applicant to contain his “valid objections” to past decisions. That could only be a reference to objections he made to the Registrar or his delegate, since it would be only documents of that ilk within the possession of the Registrar which would be the subject of operation of s 95(3) of the Registration Act. Objections made by the applicant subsequently to the SSAT or the Federal Magistrates Court about the Registrar’s antecedent decisions would undoubtedly be reflected in documents in the hands of the parties and could not be surreptitiously held back by the Registrar.
Objections made long ago by the applicant to the Registrar or his delegates, which objections were rejected, had no bearing at all on the decision made by Halligan FM, which is the only concern of this Court. Halligan FM considered whether the SSAT erred at law on the evidence before it, found it did not, and for that reason denied the applicant leave to appeal against the decision out of time. Before the SSAT, the applicant was apparently seized of all the documents he needed to argue his case, as the reasons of the SSAT revealed. Even if an extraneous document existed which recorded another of his objections, he was free to and did make all the submissions he wanted to the SSAT about the asserted injustice of the registration of the American order by the Registrar. The fact he unsuccessfully made the same objection earlier, directly to the Registrar, as may have been verified by another document, made no difference to the outcome.
As can be seen, the grounds of appeal posited by the applicant have no chance of success and it would therefore be futile to grant leave for him to prosecute the appeal. Leave to do so should be refused.
Proposed Grounds of the Cross-Appeal
The Registrar contends Halligan FM fell into appealable error by dismissing his costs application against the applicant, notwithstanding the undoubtedly wide discretion available to his Honour under s 117 of the Family Law Act.
The primary judge dismissed the costs application because he was satisfied the applicant’s asserted lack of financial capacity carried more discretionary weight than the countervailing considerations of the lack of merit in his proposed appeal and the need for the Registrar’s resistance of the proposed appeal at expense to the public purse.
The appealable errors in that decision, as asserted by the Registrar, distilled from the Notice of Cross-Appeal and written submissions to be:
(a)The impermissible treatment of the applicant’s mere submissions about his relatively poor financial circumstances as sworn evidence;
(b)The failure to afford the Registrar the opportunity to cross-examine the applicant about his asserted financial circumstances; and
(c)The failure to take into account as a material consideration the undesirability of the public purse having to bear the cost of resisting unmeritorious child support appeals.
The primary judge recounted the substance of the two submissions the Registrar made in support of the costs application about lack of merit and public cost, pursuant to ss 117(2A)(e) and 117(2A)(g) of the Family Law Act, and it could hardly be asserted his Honour did not take those arguments into account in the exercise of discretion, as the reasons recorded (at [60]):
Certainly [the arguments put by the Registrar] are relevant matters in favour of a costs order, but the father’s financial circumstances are also a relevant matter, and taking the two into account, I find that this is an evenly balanced matter with the consequence that the Registrar has failed to discharge the onus of demonstrating… that a costs order should be made…
The Registrar’s contention that the primary judge improperly failed to take one of his two submissions into account therefore devolved to merely an argument about the asserted lack of weight accorded to that submission, which is a much more difficult contention to sustain (see Gronow v Gronow (1979) 144 CLR 513 at 519-520).
The nub of the Registrar’s argument in this Court was therefore confined to the manner in which the primary judge accepted as correct the applicant’s unsworn evidence about his financial circumstances and did not allow the Registrar to cross-examine the applicant.
The Registrar submitted, in reliance upon authority, that the acceptance of an unrepresented party’s statements from the bar table as the equivalent of sworn evidence is irregular (Randwick City Council v Fuller (1996) 90 LGERA 380). Bereft of context, so much is certainly correct, but significantly for present purposes, that was not the context in which the primary judge accepted the applicant’s submissions about his financial circumstances.
The primary judge was obliged by s 42 of the Federal Magistrates Act1999 (Cth) (as the Act then was) to proceed without undue formality and to ensure the proceedings were not protracted. Moreover, to assist the just, efficient and economical resolution of the proceedings, the parties were obliged by r 1.03 of the Federal Magistrates Court Rules 2001 (Cth) (as the Rules then were) to avoid undue delay, expense and technicality.
The primary judge delivered ex tempore reasons for refusing to extend the time for the applicant to file his appeal and for dismissal of his appeal. The Registrar then immediately afterwards made an application for costs against the applicant, in response to which his Honour ascertained from the applicant whether and why he opposed the Registrar’s application. The applicant said he did and his poor financial position was why. The applicant then proceeded to elaborate his financial position from the bar table without interjection or objection by the Registrar. Although the Registrar also complained in these proceedings of the primary judge’s failure to extend to him the opportunity to cross-examine the applicant, the Registrar did not ask the primary judge for permission to do so.
As the NSW Court of Appeal has acknowledged (Randwick City Council v Fuller at 382; Crowe-Maxwell v Frost (2016) 111 ACSR 583 at [52]), a court is entitled to act on unsworn evidence given by a party from the bar table if the other party acquiesces to that course, which is what occurred in this instance. While there should be no inflexible rule forbidding parties from
cross-examining one another on their financial circumstances when costs are at stake (Kohan and Kohan (1993) FLC 92-340 at 79,611-79,612), it should still be relatively uncommon for that to occur, for otherwise there would be a risk of costs disputes outflanking the underlying substantive disputes.
No doubt in this instance his Honour was mindful of his legislative duty to reasonably contain the proceedings. In the absence of objection from the Registrar, it was plainly sensible for the primary judge to accept and act on the applicant’s submissions about his financial circumstances. The only realistic alternative was to adjourn the hearing, direct the applicant to file sworn evidence about his financial circumstances, and re-convene the Court for hearing on another day to enable the Registrar’s cross-examination of the applicant and for the parties to make their costs submissions. That would have put both parties to considerable extra expense and would not have been proportionate to the issue at stake, particularly when the Registrar sought an order quantifying his costs in the fixed sum of only $6,240.
While the Registrar’s proposed grounds of appeal are at least arguable, their relative weakness means the primary judge’s decision to dismiss his costs application is not attended by sufficient doubt to warrant the grant of leave to cross-appeal, and additionally, the small amount of costs in issue inevitably means the Registrar will not suffer substantial injustice if leave to cross-appeal is refused. Leave to cross-appeal should therefore be refused.
Conclusion and Costs
Orders are therefore made refusing leave for the applicant to appeal and for the Registrar to cross-appeal against the orders made by Halligan FM on 4 October 2012.
The applicant was self-represented and confirmed he had incurred no legal costs in respect of the two applications for leave to appeal and cross-appeal, other than for expenses of about $40 compiling the appeal books. In such circumstances there is clearly no need to make any costs order in his favour against the Registrar in respect of the Registrar’s failed application for leave to cross-appeal. There will be no order for costs in that regard.
Conversely, if the applicant was refused leave to appeal, the Registrar sought that the applicant bear the costs related to his resistance of the application for leave. The Registrar even foreshadowed that his application would be for indemnity costs. Given the applicant’s expected opposition to the costs application, let alone for indemnity costs, the question of the Registrar’s costs is reserved.
As was the case before Halligan FM, the applicant will likely want to rely upon his financial circumstances as a reason to resist his payment of costs so, having regard to the Registrar’s complaint about the procedure before Halligan FM, the applicant will need the opportunity to adduce some evidence of his financial circumstances. The Registrar will also likely want to adduce some evidence as the foundation for his claim for costs on an indemnity basis. For those reasons, orders are made requiring the Registrar and applicant to file and serve the evidence and submissions upon which they rely within a reasonable period of time. The Registrar’s costs application can then be determined in chambers on the further evidence and submissions filed.
I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 1 July 2016.
Associate:
Date: 1 July 2016
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