Reid and Reid

Case

[2010] FMCAfam 1488

18 November 2010


FEDERAL MAGISTRATES COURT OF AUSTRALIA

REID & REID [2010] FMCAfam 1488
FAMILY LAW – Shared cost order for expert – independent children’s lawyer to contribute – discretion of the Court in relation to remuneration and expenses of court expert under Court Rules – distinction between order for ‘remuneration and expenses of court expert’ under court rules and ‘costs’ under s.117 of Family Law Act.
Family Law Act 1975, ss.4(1), 68L, 68LA,117(1) & (2)
Federal Magistrates Act1999, ss.3(2),15, 43(1), 43(2)
Family Law Rules2004, Part 15.5, r.15.47
Federal Court Rules 1979, Order 34.r 5(2) & 5(4)
Federal Magistrates Court Rules2001, r.1.03, Division 15.2, r.15.11, Dictionary
Family Law Regulations1984, reg.3

AON Risk Services Limited v Australian National University (2009) 239 CLR 175
Badische Anilin und Soda Fabrik v Levinstein (1883) 24 ChD 156
Cocker v Tempest (1841) 7 M & W 502; 151 ER 864
Colls v Home and Colonial Stores Ltd (1904) AC 179
Gale v New South Wales Minister for Land & Water Conservation [2001] FCA 1652
Genetic Institute Inc v Kirin-Amgen Inc (No.2) (1997) 78 FCR 368
Re JJT & Ors: Ex parte Victoria Legal Aid (1998) 195 CLR 184
Newark Pty Ltd v Civil & Civic Pty Ltd (1987) 75 ALR 350
Penfold v Penfold (1980) 144 CLR 311
Sali v SPC Limited (1993) 116 ALR 625
Trade Practices Commission v Arnotts Ltd (1989) 89 ALR 131
Tyler v Thomas (2006) FCR 357

I. Freckelton & H. Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, Fourth Edition (Sydney: Lawbook Co., 2009)

J. Basten, “The Court Expert in Civil Trials – A Comparative Appraisal,” (1977) 40 Modern Law Review 174-191
A. Lyons, “Recasting the landscape of interlocutory applications: AON Risk Services Limited v Australian National University,” (2010) 32 Sydney Law Review 549-573

Applicant: MR REID
Respondent: MS REID
File Number: CAC 152 of 2009
Judgment of: Neville FM
Hearing date: 18 November 2010
Date of Last Submission: 18 November 2010
Delivered at: Canberra
Delivered on: 18 November 2010

REPRESENTATION

Counsel for the Applicant: Ms J Godtschalk
Solicitors for the Applicant: Harris Lieberman, Wodonga VIC
Counsel for the Respondent: Self represented litigant
Solicitors for the Independent Children’s Lawyer Legal Aid, NSW (Wagga Wagga)

ORDERS

  1. The final hearing listed on 7th and 8th of February 2011 be vacated.

  2. The matter be listed for final hearing for 2 days commencing on 16th May 2011 at 10:00am in Wagga Wagga before Federal Magistrate Brewster.

  3. Pursuant to Chapter 15, Division 15.2 of the Federal Magistrate Court Rules 2002 Mr P of Mr P & Associates of [address omitted], Melbourne in the State of Victoria be appointed to enquire into and report matters pertaining to the welfare of the children [X] born [in] 1994, [Y] born [in] 1997 and [Z] born [in] 2002 (“the children”).

  4. For the purposes of preparing the Report, the parties and the children shall attend upon Mr P on 1st February 2011. In the event Mr P requests the attendance of any other adult who is significant in the lives of the children, the parties are to do all things necessary to cause that person or persons to attend on Mr P as requested by Mr P.

  5. Mr P shall be requested to consider the following matters in the preparation of his Report to the Court:-

    (a)Whether the children are at risk of physical or psychological harm from being subjected or exposed to abuse, neglect or family violence and if so, how best to protect them from that risk of harm.

    (b)The benefits to the children of having a meaningful relationship with each of the parties.

    (c)The benefits to the children of having a meaningful relationship with each other.

    (d)The nature of the relationship between:-

    (i)The children

    (ii)The children and each of the parties.

    (iii)The children and any other significant person including their grandparents.

    (e)Whether either of the parties suffers from a psychological and/or psychiatric condition and if so:-

    (i)The nature of that condition.

    (ii)Any treatment recommended.

    (iii)Whether the condition affects that party’s capacity to care for the children and if so in what way.

    (f)The attitudes to the responsibilities and duties of parenthood evinced by each of the parties.

    (g)The parties’ willingness and any significant persons willingness to facilitate and encourage a close and continuing relationship between the children and the other parent.

    (h)Any other issues the Court expert considers relevant.

  6. The cost of the expert’s Report prepared by Mr P be shared equally between the Applicant Father, the Respondent Mother and the Independent Children’s Lawyer.

NOTING THAT THE MATTER IS LISTED FOR FINAL HEARING IN ACCORDANCE WITH ORDER 1 ABOVE, IT IS FURTHER ORDERED IN CHAMBERS THAT:

  1. Evidence in chief at the hearing be by way of affidavit. Oral evidence in chief will only be permitted by leave. Affidavits must comply with Divisions 2.1 and 15.4 of the Federal Magistrates Court Rules 2001.

  2. The Applicant Father pay any hearing fee or seek a waiver of the fee by 2nd May 2011.

  3. Each party file and serve by 22nd April 2011:

    (a)one affidavit setting out any further evidence in chief;

    (b)one affidavit of each lay witness intended to be relied upon at trial.

  4. The parties cannot rely on any material filed after 22nd April 2011 without the leave of the Court.

  5. Each party file and serve on each other party by 9th May 2011 a case outline setting out:

    (a)the final orders sought; and

    (b)a list of documents intended to be relied upon at trial.

    It is requested that a copy of the Orders Sought are emailed to [email protected] prior to the commencement of the hearing.

  6. If an Independent Children’s Lawyer has been appointed, this lawyer will prepare the chronology above, to be settled with the parties, by


    9th May 2011.

  7. The parties are to notify any Family Consultant or other Court appointed expert required to give evidence at the trial a minimum of


    6 weeks prior to trial.

  8. Subpoenas be returnable no later than 2nd May 2011.

AND IT IS NOTED THAT a Compliance Check-sheet will be forwarded to the parties’ legal representatives no less then two weeks before the final hearing to be returnable five working days thereafter and upon receipt, if necessary, the matter will be listed for pre-hearing directions.

IT IS NOTED that publication of this judgment under the pseudonym Reid & Reid is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 152 of 2009

MR REID

Applicant

And

MS REID

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 18th November 2010 I made an order in these proceedings that provided for the appointment of an expert, and that the costs of that expert be shared equally between the parties and the independent children’s lawyer (“the ICL”).

  2. Notices of Appeal in relation to that order were filed on 16th and


    21st December 2010, in so far as the order required the ICL to bear a


    ⅓ share of the costs of the expert (including the production of the expert’s report).  As I understand it, there is no challenge either to the appointment of the expert, or to any other orders made on that day.

  3. As set out in the Notice of Appeal, the sole ground of appeal is: “The Federal Magistrate erred in ordering the Independent Children’s Lawyer to pay a third share of the costs of the court expert report.  No facts or circumstances existed that justified the Federal Magistrate making such an order pursuant to 117(2) [sic] of the Family Law Act.”

  4. The reasons that follow relate solely to the order now under appeal.

Procedural and contextual history

  1. On 13th May 2009, pursuant to s.68L of the Family Law Act1975 (“the Act”), I ordered that an ICL be appointed to represent the children in these proceedings.  On 12th June 2009, the ICL filed a Notice of Address for Service.

  2. On 18th November 2010, among others, I made orders for the appointment of an expert.  Order 6 made on that day provided as follows: “The cost of the expert’s Report prepared by Mr P be shared equally between the Applicant Father, the Respondent Mother and the Independent Children’s Lawyer.”

  3. This matter is listed for final hearing in the Wagga Wagga sittings of the Court in May 2011.  It was originally to be heard in that city in the February sittings.

  4. On 10th November 2010, an Application in a Case was filed by the Applicant Father by which he sought orders to vacate the February hearing and to appoint Mr P as an expert under Division 15.2 of the Federal Magistrates Court Rules2001.  I understand that Mr P is an expert in ‘alienation issues.’

  5. In the event, the Respondent Mother did not oppose the application to vacate the February hearing dates, but questioned the appointment of an expert for reasons she outlined, and which are recorded in the transcript.[1]

    [1] At the time of the mention on 18th November, Ms Reid confirmed that she was due shortly to finish her [occupation omitted] training, following which it had been confirmed that she would be [employed in] Wagga Wagga.  Her lack of opposition to vacating the initial trial dates stemmed, in large measure, from the logistical difficulties associated with her new [employment in] Wagga Wagga.

  6. Mrs Dwyer is the ICL for the three children involved in the proceedings: [X] (born 1994), [Y] (born 1997), and [Z] (born 2002).

  7. At the hearing of the Application on 18th November, Ms Conroy appeared on behalf of Mrs Dwyer.  Ms Conroy, like Mrs Dwyer, is from the Legal Aid office in Wagga Wagga.

  8. In answer to a question from the Bench in relation to the application for the appointment of an expert, Ms Conroy said:[2]

    ... I can indicate Ms Dwyer’s position now.  She feels that it will be of benefit to have a report from Mr P ... as a significant issue in this case is the alienation of [Y] from his father, and any information from the report would assist the court in determining what is in [Y]’s best interests.

    [2] Transcript (18th November 2010) p.3.

  9. Ms Conroy went on to point out that the last report had been done by a family consultant in April 2009.

  10. Later in the exchanges with those who appeared on 18th November,


    Ms Godtschalk, Counsel for the Father, submitted that the costs of the expert’s report “be equally shared between the parties, and ....”  Counsel did not quite finish the sentence because I added “And the ICL.”  I commented further: “That’s a not uncommon order.”[3]

    [3] Transcript (18th November 2010) p.10.

  11. To this, Ms Godtschalk commented quizzically: “Isn’t it?”.  I answered in the affirmative.  Then Ms Conroy said: “I didn’t believe that was usual.”  I commented: “I wasn’t saying that it was usual.  I said that it was not uncommon ....”  Ms Conroy then replied: “Yes, your Honour.”  Ms Godtschalk then said: “Well, that would appear to be appropriate since it’s also a position that’s supported by the ICL ....”[4]

    [4] Ibid.  Ms Reid opposed the making of an order that the parties share the costs of the report equally.  She submitted that Mr Reid only should pay for the report.

  12. A little later in the proceedings on 18th November, I requested


    Ms Conroy to engross the orders that I had pronounced. She agreed to do so. And, at the conclusion of the brief hearing, in answer to the general question implicit in the statement ‘unless there [is] anything else’, Ms Conroy simply said: “No. Thank you, your Honour.”[5]

    [5] Transcript (18th November 2010) p.11.

Legislative and regulatory principle

  1. There is no dispute as to the source of the Court’s power to appoint an ICL under s.68L of the Act.

  2. What is more immediately relevant, in my view, is the consideration of the precise terms of s.68LA of the Act, which detail the role of the ICL. That section provides:

    68LA  Role of independent children’s lawyer

    When section applies

    (1)  This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.

    General nature of role of independent children’s lawyer

    (2)  The independent children’s lawyer must:

    (a)  form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

    (b)  act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

    (3)  The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

    (4)  The independent children’s lawyer:

    (a)  is not the child’s legal representative; and

    (b)  is not obliged to act on the child’s    instructions in relation to the proceedings.

    Specific duties of independent children’s lawyer

    (5)  The independent children’s lawyer must:

    (a)  act impartially in dealings with the parties to the proceedings; and

    (b)  ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

    (c)  if a report or other document that relates to the child is to be used in the proceedings:

    (i)  analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

    (ii)  ensure that those matters are properly drawn to the court’s attention; and

    (d)  endeavour to minimise the trauma to the child associated with the proceedings; and

    (e)  facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

    Disclosure of information

    (6)  Subject to subsection (7), the independent children’s lawyer:

    (a)  is not under an obligation to disclose to the court;

    (b)  cannot be required to disclose to the court;

    any information that the child communicates to the independent children’s lawyer.

    (7)  The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.

    (8)  Subsection (7) applies even if the disclosure is made against the wishes of the child.

  3. Section 3 of the Federal Magistrates Act1999 (“the FM Act”) sets out the objects of the Act. In addition to establishing the Court, s.3(2) relevantly provides:

    The other objects of the Act are:

    (a)     to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and

    (b)     to enable the Federal Magistrates Court to use streamlined procedures ...

  4. Rule 1.03 of the Federal Magistrates Court Rules2001 (“the FMC Rules”) sets out the “Objects” of the Rules. Rule 1.03 is in the following terms (so far as is relevant to the current matter):

    1)   The object of these Rules is to assist the just, efficient and economical resolution of proceedings.

    (2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:

    ·      to operate as informally as possible

    ·      to use streamlined processes

    ·      to encourage the use of appropriate dispute resolution procedures.

    (3)   The Court will apply the Rules in accordance with their objects.

    (4)   To assist the Court, the parties must:

    ·      avoid undue delay, expense and technicality

    ·      consider options for primary dispute resolution as early as possible.

  5. The Court’s power to make orders in relation to the ‘remuneration and expenses of a court expert’ is located in Rule 15.11 of the FMC Rules. That rule provides:[6]

    Unless the Court otherwise directs, the parties are jointly liable to pay the reasonable remuneration and expenses of the court expert for preparing a report.

    [6] Cf. Part 15.5 of the Family Law Rules2004.  In particular, Rule 15.47 provides: “(1) The parties are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.”  Order 34 r 5(2) of the Federal Court Rules 1979 provides: “Unless the Court otherwise orders, the parties shall be jointly and severally liable to the court expert to pay the amount fixed by the Court for his remuneration.” Order 34 r 5(4) further provides: “Sub-rules (2) and (3) do not affect the powers of the Court as to costs.” The Dictionary in the FMC Rules states: “Party: means an applicant, respondent or other person included as a party to a proceeding.” Cf. the Family Law Regulations1984, where reg.3 defines “party to proceedings” as “an applicant, respondent or intervener in proceedings under the Act.”

  6. More generally and further to this, s.15 of the Federal Magistrates Act1999 provides:[7]

    [7] Also see s.43 of the Federal Magistrates Act in relation to this Court’s Rules, and to the Court’s ability to use, in cases where the Rules of this Court are insufficient, the Rules of both the Federal Court of Australia, and the Family Court of Australia.

    The Federal Magistrates Court has power, in relation to matters in which it has jurisdiction to:

    (a) make orders of such kinds, including interlocutory orders, as the Federal Magistrates Court thinks appropriate.

  7. Subject to the discussion that follows, the power that was exercised, in the discretion of the Court, on 18th November 2010 to order the ICL to share with the parties equally in the costs associated with the preparation of an expert report by Mr P, was pursuant to Rule 15.11 of the FMC Rules. As well, without formal articulation, the other Rules of Court to which I have referred, and the sections of the FM Act also mentioned, should be taken to have ‘informed’ the authority for, and the exercise of, the Court’s discretion.

  8. Also for reasons noted later, but (I accept) not formally articulated at the time of the order, the discretion of the Court (and, in consequence, the relevant order) was not exercised pursuant to s.117 of the Act.

Jurisprudential principle and discussion

  1. Historically, and before the proliferation of statutes, according to a wide inherent power, courts have had, and have exercised, a wide discretion to ensure the efficient conduct of proceedings before them in order that justice is achieved.  Thus, in Cocker v Tempest Alderson B said:[8]

    The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice.  The exercise of power is certainly a matter for the most careful discretion ….

    [8] Cocker v Tempest (1841) 7 M & W 502; 151 ER 864 at p.865.

  2. Rather more recently, in AON Risk Services Limited v Australian National University, the High Court has strongly articulated both the discretion that reposes in a court and the responsibility for it to be exercised diligently so as to ensure the efficient conduct of matters coming before it.[9]  Among many matters noted by the High Court were the following: a court is a publicly funded resource; a court must consider the impact of its actions, from a case-management perspective, on other litigants and their claims to the court’s resources; and the interests of the parties themselves.[10]

    [9] AON Risk Services Limited v Australian National University (2009) 239 CLR 175.

    [10] Among other places, see AON Risk Services 239 CLR at [5] & [25] & [26] (French CJ); [57], [89] & [93] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).  In a family law context, see also the general observations of Callinan J in Re JJT & Ors: Ex parte Victoria Legal Aid (1998) 195 CLR 184 at p.229 [149], where his Honour said (internal citations omitted): “In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ adopted what was said by Lord Morris of Borth-y-Gest in Connelly v Director of Public Prosecutions: ‘[A] court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.... A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.’”

  1. Since the High Court’s firm instructions in AON Risk Services, these signal ‘case-management’ considerations have been consistently applied in a wide variety of courts, and in a wide variety of circumstances.[11]

    [11] A convenient and very detailed over-view of the application of the AON Risk Services case-management jurisprudence across multiple courts has recently been provided in a ‘case-note’ in the Sydney Law Review.  See A. Lyons, “Recasting the landscape of interlocutory applications: AON Risk Services Limited v Australian National University,” (2010) 32 Sydney Law Review 549-573.

  2. To speak somewhat generally, courts have regularly advised of the utility, indeed the importance, of an expert’s report.  For example, in an older patent case, Pearson J highlighted the indebtedness of the Court to the report produced by the expert in that case.[12]

    [12] Badische Anilin und Soda Fabrik v Levinstein (1883) 24 ChD 156 at pp.163, 166-67 & 176. Section 217 of the Patents Act 1990 (Cth) [now] provides for the appointment of an expert adviser, known as an ‘assessor.’ See the discussion by Heerey J of the appointment, role and functions of an assessor or court expert in Genetic Institute Inc v Kirin-Amgen Inc (No.2) (1997) 78 FCR 368.

  3. In Colls v Home and Colonial Stores Ltd, Lord Macnaghten “wondered why the Court does not more frequently avail itself of the power of calling in a competent adviser to report to the Court upon the question.”[13]

    [13] Colls v Home and Colonial Stores Ltd (1904) AC 179 at p.192. This was a nuisance case, and the expert required was a surveyor. Closer to home, see also the general observations of Beaumont J in the Federal Court of Australia in Trade Practices Commission v Arnotts Ltd (1989) 89 ALR 131 albeit that his Honour’s decision in that case was in relation to the admissibility of an expert’s report. See too the brief comments of Madgwick J in Gale v New South Wales Minister for Land & Water Conservation [2001] FCA 1652.

  4. Again in more recent times, the Full Court of the Federal Court has provided detailed discussion and guidance regarding the appointment of an expert.  Thus, in Tyler v Thomas (admittedly not in a family law context), Branson J said:[14]

    [14] Tyler v Thomas (2006) 150 FCR 357 at p.365 [29]. See also the comments by Bennett J at [89] – [91], and Graham J at [99] & [213]. Generally, see also I. Freckelton & H. Selby, Expert Evidence: Law, Practice, Procedure and Advocacy, Fourth Edition (Sydney: Lawbook Co., 2009), and in particular, Chapter 18 “Remuneration of Experts”, and Chapter 19 “Court-Appointed Experts;” and J. Basten, “The Court Expert in Civil Trials – A Comparative Appraisal,” (1977) 40 Modern Law Review 174-191.

    Notwithstanding the limited case law on the circumstances in which the discretionary power of a court to appoint a court expert should be exercised, the following broad principles can, I consider, be deduced from the authorities:

    (1) the power to appoint a court expert is part of the armoury made available to courts for the purpose of ensuring the just, efficient and cost-effective management of litigation;


    (2) the power to appoint a court expert is to be broadly understood and is not available to be exercised only where litigation calls for expert evidence of a scientific or technical kind;


    (3) a court expert may be appointed to express an opinion


    on the major issue to be decided in the litigation;


    (4) generally speaking, the correct approach will be to regard the appointment of a court expert as the first step, but not necessarily the only step, in the obtaining of expert evidence on a particular issue;


    (5) ordinarily the appropriate time for the exercise of the power is well before trial so that the parties have adequate time to give consideration to the report of the court expert and to make decisions on whether they wish to challenge any part of that report;


    (6) the power to appoint a court expert is not ordinarily to be exercise [sic] for the purpose of assisting an impecunious party to gather evidence – although the appointment of a court expert may in fact provide such assistance.

  5. This Court, like many others, regularly uses experts and their reports, particularly in family law proceedings involving children.  It is a rare case, I suggest, where such a report is not an invaluable tool in the resolution of the matters before the Court, either through discussions between the parties (and involving the ICL) in the light of what is in the report, or through judicial determination, aided by the evidence from the relevant expert (and also aided by the ICL).

  6. In this case, the formal responsibility of the ICL, pursuant to s.68LA, is “to form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the [children].”

  7. Pursuant to s.68LA(5)(c), the ICL is required to “analyse the [expert] report” and to ensure that the most significant matters for determining what is in the best interests of the children are drawn to the attention of the Court.

  8. Whatever policy considerations might be relevant to any legal aid organisation and its funding operations, but which (in any event) are not matters that are formally before the Court (nor any evidence in relation thereto), it is the responsibility of the Court to ensure (a) the determination of matters before it in the most efficient and appropriate manner, and (b) the adjudication of interlocutory applications in accordance with the precepts of case management determined by the High Court in AON Risk Services.  None of the matters to which I have just referred should, of course, be taken to suggest that the Court has any licence to dispense with or derogate from either (a) general precepts of justice, (b) the rules of natural justice, (c) the Rules of this Court and or (d) the prescriptions of relevant legislation.

  9. However, where, as here, it might be observed that an expert’s report is likely to be used by all parties, as well as the ICL, and that it will likely be of significant assistance to the Court in resolving the issues involving the children and do so having regard to their best interests, one might ask, not unreasonably, why an order should not be made whereby all the parties, and the ICL, share the costs of the report equally?  Undoubtedly, all will use it in some shape or form in considering and presenting their respective submissions.

  10. It might also be observed or considered that ordering parties, including an ICL, at an interlocutory stage of the proceedings, to share equally the costs of the preparation of an expert’s report, upon which the parties and the ICL will rely in framing submissions for the Court’s consideration in making orders that are in the children’s best interests, is part and parcel of this Court’s ‘case management’ considerations. 

  11. This is not to say that such a course will, or should, take place in every circumstance where such a report is sought. It is simply the case that, in this instance, in the exercise of the Court’s discretion, and having regard, among other things, to Rule 15.11 of the FMC Rules, such an order was made.

  12. Indeed, it may ultimately be the case that, come the final hearing, an application is made by the ICL, pursuant to s.117 of the Act, for the ICL’s costs of the proceedings, including the currently ordered share of the professional costs of the expert report, to be awarded in her favour. A similar application may also be made by the Respondent Mother. Any such submissions, and any orders made in consequence of them, must await the resolution of the matter at the trial. Nothing in these reasons should be taken to comment or reflect on any such applications.

  13. In my view, because the order made on 18th November, in fact, relates, not to the costs of the proceedings under s.117 of the Act, but to the “remuneration and expenses of a court expert” pursuant to Rule 15.11 of this Court’s Rules, in my view, the cases that deal with “costs” under s.117, such as Penfold v Penfold and Re JJT & Ors: Ex parte Victoria Legal Aid, have no application at this time in this case.[15] The appropriate time for consideration of those cases (and, of course, any others), and s.117, is at the conclusion of the trial.

    [15] Penfold v Penfold (1980) 144 CLR 311; Re JJT & Ors: Ex parte Victoria Legal Aid (1998) 195 CLR 184.

  14. The orders plainly state and confirm that the expert was appointed pursuant to “Chapter 15, Division 15.2 of the Federal Magistrates Court Rules.”[16]

    [16] Inadvertently, the order refers to the Rules as being dated “2002” rather than “2001.”

  15. Order 6, which provided for the costs of the expert’s report to be shared equally between the parties and the ICL, did not refer specifically to Rule 15.11. It would have been helpful to have done so. However, because the terms of the appointment were specifically stated to be “Pursuant to Chapter 15, Division 15.2”, it should have been inferred that Rule 15.11 was the operative provision in relation to the professional costs of the expert, precisely because that is what the Court was then dealing with. This inference should also be considered, a fortiori, precisely because there had not been any discussion or submission in relation to s.117 of the Act, and because the trial has yet to take place: thus, there is no closure or prevention of any application under s.117 at the conclusion of the trial next May.

  16. For these reasons, the order for the parties, and the ICL, to share equally the professional costs of the expert’s report, was made on 18th November 2010.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Neville FM

Associate: 

Date:  15 February 2011


Actions
Download as PDF Download as Word Document


Cases Citing This Decision

1

Cases Cited

7

Statutory Material Cited

6