HIGH COURT OF AUSTRALIA
GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
RE JJT & ORS RESPONDENTS
EX PARTE VICTORIA LEGAL AID PROSECUTOR
Re JJT; Ex Parte Victoria Legal Aid (M74/1997) [1998] HCA 44
25 June 1998
ORDER
Order nisi for certiorari made absolute.
Order 3 of the orders made by Faulks J of the Family Court of Australia on 9 September 1997 quashed.
Order nisi for prohibition discharged.
Representation:
S M Crennan QC with P J Hanks for the prosecutor (instructed by Victoria Legal Aid)
No appearance for the first and second respondents
B W Walker SC with C E Molyneux QC and C M Caleo for the third and fourth respondents (instructed by Hogg and Reid)
2.
Interveners:
D Graham QC with N D Hopkins intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
R J Meadows QC with C F Jenkins intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)
B M Selway QC with G L Ebbeck intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)
L S Katz SC with A S Bell intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
H C Burmester with J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re JJT & Ors; Ex Parte Victoria Legal Aid
Costs – Power to make order against a non-party – Order of Family Court requiring Victoria Legal Aid to provide for future costs of child's separate representation – Whether order "as to costs" – Whether order as to security for costs.
Family law – Order of Family Court requiring Victoria Legal Aid to provide for future costs of child's separate representation – Whether supported by power to make such other orders as the court considers necessary to secure separate representation – Power to make interim maintenance orders.
Words and phrases – "order as to costs".
Family Law Act 1975 (Cth), ss 68L, 117.
GAUDRON J. I agree generally with the judgment of Hayne J. I would, however, add a few observations of my own.
The power conferred by s 117(2) of the Family Law Act 1975 (Cth) ("the Act") is a power to "make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just." That power is not simply a power to make an order for costs. Were it so, it would only authorise orders to indemnify for "costs actually incurred in the conduct of litigation"[1]. However, a power to make an "order as to costs" is a broader power. And when regard is had to the consideration that s…
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- AGLC
- Re JJT; Ex Parte Victoria Legal Aid [1998] HCA 44
- Case
- [1998] HCA 44
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether the Family Court had the power to make an order requiring Victoria Legal Aid to fund the future costs of a child's separate representation, and if so, whether such an order constituted an order "as to costs" or an order for security for costs. The Court also considered whether the power to make such orders was supported by provisions in the relevant Act that allowed the court to make other orders considered necessary to secure separate representation for a child.
The High Court reasoned that the power to make orders as to costs must be found in legislation, as there is no inherent common law power. The Court emphasised that statutory powers for costs must be construed in light of the specific purposes of the legislation, particularly in the context of the Family Court where proceedings often involve a wider circle of affected persons, including children requiring separate representation. The Court held that the power to make orders as to costs should be construed liberally and amply, consistent with the Family Court being a superior federal court. Amendments to the relevant section of the Act were noted as reflecting a legislative purpose to avoid disadvantages to vulnerable parties, including the need to provide for future costs. The Court concluded that the power to order costs under the Act extends to the future costs of representatives of vulnerable children, analogous to the provision for future costs of vulnerable spouses. While ordinarily costs are not ordered against non-parties, the Court acknowledged that courts have long exercised this jurisdiction, and the issue is typically one of the proper exercise of discretion rather than the existence of power.
The High Court made absolute the order nisi for certiorari, quashed order 3 of the Family Court's orders of 9 September 1997, and discharged the order nisi for prohibition.
Orders
Orders of the court
1.
Order nisi for certiorari made absolute.
2.
Order 3 of the orders made by Faulks J of the Family Court of Australia on 9 September 1997 quashed.
3.
Order nisi for prohibition discharged.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: GAUDRON J, GUMMOW J, KIRBY J, HAYNE J
Before considering each of these suggested sources of the power, a few general propositions may be accepted:1.There was no power to order costs at common law. The source of the power must therefore be found in legislation. Accordingly, the primary task before the Court in this part of the case, is to examine the provisions of the Act relied upon and to consider whether those provisions, or any of them, sustain the order[39]. 2.Statutory powers providing for costs appear in a multitude of forms[40]. Although the word "costs" may import notions of a general kind from the forms of orders which have been made in courts of law for centuries, such preconceptions must not distract the Court from the task of construction which each statutory provision for costs invokes. As with any other legislative measure, the law in question must be construed to achieve its identified purposes[41]. A section empowering orders for costs will be construed in the context of any peculiarities of the legislation in which it appears. Relevantly to the Act in question here, this includes those provisions which necessarily involve in the proceedings, perhaps unwillingly, persons other than the principal parties. It inherently involves any minor child of the parties' relationship, guardians of such child, grandparents and other persons concerned with the care, welfare or development of the child[42]. Litigation in the Family Court is not ordinary litigation[43]. Of its nature, it often involves a wider circle of affected persons who are recognised by the Act, may intervene and become parties to the proceedings. It also recognises, uniquely, the special needs of children sometimes to have a representative appointed to protect their separate interests. To the fullest extent compatible with the language of s 117, the power to make orders as to costs under the Act must be read so as to cover the costs of the variety of persons who participate in proceedings in the Family Court, whether as parties or otherwise[44].3.A grant of power to a court to make orders as to costs will not, in the absence of a legislative indication to the contrary, be construed narrowly. This is because it is implied from the character of the donee of the power that the power will be exercised judicially and in accordance with established legal principles. Because the recipient of the power here is the Family Court of Australia, a superior federal court of record[45], it would be contrary to principle for the power to be given anything other than the most liberal and ample construction[46]. 4.It is legitimate, in construing a power appearing in legislation, to have regard to the course of any amendments which help to explain the legislative purpose that lies behind the present provision. The amendments to s 117, both in the opening words of sub-s (2) and following the insertion of sub‑s(2A), reflect recommendations designed to avoid disadvantages to certain vulnerable spouses (mostly women) which the original language of the section was found to have caused[47]. The disadvantageous position of women in family law litigation[48] produces a special need, in many cases, to provide for future costs, ie in advance of the conduct of the litigation. The word "costs" in s 117 extends to such cases, as properly it must in the context of this particular Act. The suggestion that such orders represent a form of "spousal maintenance", supported by s 74 of the Act, although expressly reserved by this Court in Breen v Breen[49], is unconvincing. Just as the future costs of vulnerable spouses[50] can be, and are, provided under s 117, so the analogous future costs of the representatives of vulnerable children would seem, on the face of things, to attract the same provision.5.Ordinarily, costs are not ordered against non-parties to proceedings before a court. But that is because it is generally inappropriate to do so[51]. Nevertheless, for a long time and in many different circumstances, courts have exercised their jurisdiction to order costs against non-parties[52]. The issue presented in challenges to such orders is normally now addressed not to the power to make them but to whether proper procedures have been followed and whether the discretion has been exercised in a lawful manner, "judicially and in accordance with general legal principles pertaining to the law of costs"[53]. In these proceedings no complaint was made about the procedures. No complaint could be made about the exercise of discretion having regard to the nature of the proceedings.[39]Knight v F P Special Assets Ltd (1992) 174 CLR 178 at 182-183.[40]Oshlack v Richmond River Council (1998) 72 ALJR 578 at 600; 152 ALR 83 at 113-114; [1998] HCA 11 at 110-111 and statutes there referred to.[41]Bropho v Western Australia (1990) 171 CLR 1 at 20 applying Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424.[42]Act, s 65C.[43]cf M v M (1988) 166 CLR 69 at 76.[44]Cassidy v Murray (1995) 19 Fam LR 492 at 501-503; In the Marriage of S (1997) 22 Fam LR 112 at 122-124.[45]Act, s 21(2).[46]Knight v F P Special Assets Ltd (1992) 174 CLR 178 at 205 per Gaudron J. Her Honour so held on the basis that the power will not be exercised "arbitrarily or capriciously or to work oppression or abuse"; see also Parker v Parker (1992) 16 Fam LR 458 at 462; Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203; Caboolture Park Shopping Centre Pty Ltd (In Liq) v White Industries (Qld) Pty Ltd (1993) 117 ALR 253; cf Bent v Gough (1992) 108 ALR 131.[47]See Australian Parliament, Family Law in Australia. Joint Select Committee on the Family Law Act, July 1980, vol 1 at pars 11.35-11.49.[48]See Graycar, "Gendered Assumptions in Family Law Decision-Making" (1994) 22 Federal Law Review 278.[49](1990) 65 ALJR 195.[50]Anticipatory costs for vulnerable spouses were ordered long before the Act was enacted. See Williams v Williams [1929] P 114 at 118; Wilson v Wilson (1966) 9 FLR 1 at 11.[51]Knight v F P Special Assets Ltd (1992) 174 CLR 178 at 203 per Dawson J.[52]The cases are collected in Knight v F P Special Assets Ltd (1992) 174 CLR 178 at 187-188 per Mason CJ and Deane J.[53]Oasis Hotel Ltd v Zurich Insurance (1981) 124 DLR (3d) 455 at 462.Special consideration: the child's representative