Re JJT; Ex Parte Victoria Legal Aid

The High Court of Australia considered an order made by the Family Court of Australia requiring Victoria Legal Aid to provide for the future costs of a child's separate representation. Victoria Legal Aid sought certiorari to quash this order.

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.