Paxton and Child Support Registrar & Anor (No 2)

[2016] FamCAFC 223

FAMILY COURT OF AUSTRALIA

PAXTON & CHILD SUPPORT REGISTRAR AND ANOR (NO. 2) [2016] FamCAFC 223

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – STAY – Application for a stay of orders pending the outcome of a special leave application to the High Court – Where the special leave application had been dismissed before the hearing of the stay application – Where the stay application was otiose – Application dismissed

FAMILY LAW – COSTS - Applicant ordered to pay the Child Support Registrar’s costs on an indemnity basis.

APPLICANT: Mr Paxton

1ST RESPONDENT: Child Support Registrar

2ND RESPONDENT: Ms Lafferty

FILE NUMBER: PAC 6065 of 2011

APPEAL NUMBER: EA 145 of 2012

DATE DELIVERED: 20 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan, Aldridge & Austin JJ

HEARING DATE: 20 October 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 4 October 2012

LOWER COURT MNC: [2012] FMCAfam 1181

REPRESENTATION

FOR THE APPLICANT: Mr Paxton in Person

COUNSEL FOR THE 1ST RESPONDENT: Mr Dean

SOLICITOR FOR THE 1ST RESPONDENT: Australian Government Solicitor

FOR THE 2ND RESPONDENT: No appearance for or on behalf of the second respondent

Orders

1. The Application in an Appeal filed on 2 September 2016 be dismissed.

2. The applicant shall pay the first respondent’s costs of and incidental to the Application in an Appeal filed 2 September 2016 in the amount of $637.50.

3. The costs shall be paid in a lump sum at the same time the payment referred to in Order 2(b) of the Orders of this Court dated 18 August 2016 is payable.

4. In the event the applicant fails to make a payment referred to in Orders 1 and 2(a) dated 18 August 2016, the amount payable pursuant to Order 2 of these Orders will immediately fall due.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paxton & Child Support Registrar and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (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

Ryan J       

1. This is an application in an appeal filed on 2 September 2016 by Mr Paxton (“the applicant”) in which he sought to stay orders for costs made by this Court on 18 August 2016.  The stay sought to invoke the extraordinary jurisdiction which exists when an application for special leave to appeal to the High Court has been made but not yet determined.  In the interregnum, on 12 October 2016, the applicant’s application for special leave to appeal was dismissed.  In my view there is, thus, no utility in this application and I consider it should be dismissed.

2. In the event that the appeal is dismissed, the Child Support Registrar seeks an order that the applicant pays costs in the amount of $637.50.  The argument is advanced on the basis that the applicant has been entirely unsuccessful and the costs have been incurred unnecessarily.  They are sought on an indemnity basis calculated at an hourly rate of $375.  An order for indemnity costs involves a very great departure from the normal standard, and in this jurisdiction such costs are rarely ordered.  However, reference has been made earlier to the nature of the application and that, notwithstanding that it was pressed in aid of an application for special leave to appeal and that application was dismissed, the applicant pressed on.  In my view, the decision by the applicant to continue the application can properly be categorised as one which has been taken without any regard for the prospect that the respondent would be put to the trouble and expense of defending an entirely unmeritorious application.

3. The applicant’s refusal of the invitation by the Registrar to withdraw his application, and by this I mean not only the invitation of the Appeal Registrar but also the Child Support Registrar in the correspondence which became exhibit A, was beyond imprudent and can properly be categorised as a decision taken in total disregard of the known facts.  I am strongly of the view that not only is an order for costs appropriate but an order for indemnity costs should be made. 

4. The amount sought is modest, although by reference to the Full Court’s reasons for judgment of 18 August 2016 it is accepted that an order for costs will cause some difficulty to the applicant.  He is indeed fortunate that the Registrar was amenable to the notion that any costs need not be payable forthwith.  In this regard, the proposal by the Registrar that the amount is payable in a lump sum at the same time as the final payment of the orders of 18 August 2016 is made, strikes a sensible balance between the applicant’s financial circumstances and the obligation to make the payment in a reasonably timely way. 

5. I would make an order to this effect and in the amount sought.  That is, for the costs of this application to be paid at the same time as the payment required by Order 2(b) of the orders of 18 August 2016.  Those orders make provision for the sums payable thereby to be payable immediately if there is default.  I would impose the same obligation in this order.

Aldridge J

1. I agree with the reasons given and the orders proposed by the presiding judge.

Austin J

1. I agree with the order proposed by the presiding judge and the reasons given therefore.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Austin JJ) delivered on 20 October 2016.

Associate:     

Date:  8 November 2016