Sangara & Hamwood
[2007] FamCA 1353
•20 November 2007
FAMILY COURT OF AUSTRALIA
| SANGARA & HAMWOOD | [2007] FamCA 1353 |
| FAMILY LAW - APPEAL – COSTS– Whether Federal Magistrate was functus officio and precluded from hearing subsequent costs application in circumstances where orders made at conclusion of defended proceedings dismissing all applications before Court - Whether appropriate to use Rule 16.05(2) of the Federal Magistrates Court Rules 2001 to correct orders and make an order for costs - Consideration of principles relevant to the application of the “slip rule” - Whether inadvertent error by Federal Magistrate in failing to deal with costs applications - Doctrine of functus officio did not apply - Appropriate for Federal Magistrate to apply Rule 16.05(2). FAMILY LAW - APPEAL – COSTS – Whether basis for Federal Magistrate’s three costs orders established -Whether Federal Magistrate erred in exercise of discretion in departing from s 117(1) of the Family Law Act 1975 - Whether appropriate for Federal Magistrate to make lump sum costs orders based on Schedule 1 of Federal Magistrates Court Rules 2001- Whether appropriate in exercise of discretion to make first costs order in recovery/residence proceedings when Federal Magistrate satisfied mother had contravened undertaking given to Court - Whether travel expenses wrongly included in quantum of second costs order - Whether Federal Magistrate “double counted” in awarding costs for unsuccessful contravention proceedings heard at same time as costs application hearing - No error by Federal Magistrate established FAMILY LAW - APPEAL – COSTS – COSTS OF APPEAL – Where father was wholly unsuccessful - Father to pay costs of the appeal. |
| Family Law Act 1975, s4(1), s4(1)(f), s 117(1), s117(2A), s 94 AAA(3) |
| Bailey v Marinoff (1971) 125 CLR 529 Halbury’s Laws of England, 4th ed, vol 29, para 766 |
| APPELLANT: | Mr Sangara |
| RESPONDENT: | Ms Hamwood |
| FILE NUMBER: | DGM | 2068 | of | 2006 |
| APPEAL NUMBER: | EA | 83 | of | 2007 |
| DATE DELIVERED: | 20 November 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 17 September 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 June 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 380 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Thos Hodgson |
| COUNSEL FOR THE RESPONDENT: | Ms Swart |
| SOLICITOR FOR THE RESPONDENT: | Ann E Gambetta & Associates |
Orders
That the appeal is dismissed.
That the father pay the mother’s costs of the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Sangara and Hamwood.
| THE APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 83 of 2007
File Number: DGM 2068 of 2006
| Mr Sangara |
Appellant
And
| Ms Hamwood |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the father filed on 5 July 2007 in which he seeks to appeal costs orders made by Federal Magistrate Sexton on 7 June 2007. The appeal is resisted by the mother.
The father challenges the orders made by the learned Federal Magistrate on the basis that her Honour:
· was functus officio at the time she made the costs orders;
· was in error in applying the slip rule to discharge orders made on 28 July 2006;
· erred in the exercise of her discretion in making an order for costs in a fixed sum rather than ordering the costs be assessed or agreed; and
· erred in including in the quantum of costs payable personal travel expenses incurred by the mother.
In the event of the appeal being allowed, the father seeks that, in the re-exercise of the discretion, her Honour’s costs orders be dismissed, and that the mother pay the costs of this appeal.
I am hearing this appeal as a single Judge pursuant to a direction made by the Honourable Justice Bryant, Chief Justice, under s 94 AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
On 23 July 2007 at a procedural hearing I made orders to enable me to hear and determine this appeal.
No list of documents was filed in accordance with Order 1 of my orders by 31 August 2007. On 6 September 2007 a summary of argument was filed on behalf of the father which contained documents asserted to be relevant to the appeal. No transcript of the hearing before Federal Magistrate Sexton of 1 June 2007 (the hearing date) was provided, although transcript of 28 June 2006 was made available. The transcript of 1 June 2007 is potentially relevant to the father’s contravention application, which her Honour dismissed, and in respect of which the Federal Magistrate ordered that the father pay the mother’s costs.
Background
There is little in the material before me about the parties’ history or the litigation. It appears they were never married.
The parties have three children, A born in July 1996, D born in August 1997 and B born in July 2000.
Orders were made by consent in the Family Court of Australia on 26 February 2003 (“the consent orders”). Those orders provided that the children live with the mother, that she be permitted to reside with the children in New Zealand, and for defined contact (as it was then described prior to the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)) by the children with the father. The mother gave an undertaking to the Court at the time of the making of the consent orders the relevant part of which is set out below:
7.(a) that whilst the children are living in New Zealand they shall not be exposed to the mother’s uncle [KH]. If the abovementioned uncle should arrive at a family gathering where the mother and children are present, the mother will leave with the children immediately. [original emphasis]
In July 2006 the father did not return the children to New Zealand in compliance with the consent orders. On 18 July 2006 the mother filed an application in the Federal Magistrates Court, Melbourne Registry in which she sought urgent ex parte orders that the children be returned to her forthwith, or that a recovery order issue. The mother also sought an order that the father reimburse her for any costs incurred in respect of collection of the children pursuant to the execution of the recovery order.
On 19 July 2006 Federal Magistrate Walters made orders restraining the father from removing the children from Australia. He also made orders listing the children’s names on the Airport Watch List, and ordered the father to deliver the children to the Sydney Registry of the Court at 9.15am on 28 July 2006. The mother’s costs were reserved and the proceedings transferred to the Sydney Registry of the Federal Magistrates Court.
On 28 July 2006 the father filed a response to the mother’s application and sought orders that the children live with him and spend time with the mother. He sought costs in his application. The father also filed an application for contempt alleging that the mother was in breach of her undertaking made on 26 February 2003.
On 28 July 2006 her Honour heard the mother’s application for the return of the children. She also dealt informally with the father’s contempt application, which she appeared to treat as if it were a contravention application under the Family Law Act 1975 (Cth) (“the Act”).
During the hearing on 28 July 2006 the mother, who was on that occasion self represented before her Honour, made an oral application for costs. Her Honour made orders that the children be returned to the mother, and dismissed the father’s application for interim parenting orders. Her Honour found that the mother “did contravene her undertaking made to the Court and to the father on 26 February 2003 without reasonable excuse” and varied the consent orders to restrain the mother bringing the children into contact with her uncle. At the conclusion of the hearing her Honour made the following order which is the subject of the challenge in this appeal:
8. All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
On 26 September 2006 the mother’s solicitors sought to relist the matter before the Federal Magistrate to deal with the mother’s application for costs.
On 13 November 2006, the father filed a further application for contempt. The competing applications were listed before her Honour on 27 November 2006. On that day the father asserted that, as her Honour had dismissed all applications on 28 July 2006, she was “functus officio” and could not deal with the parties’ competing costs applications.
On 13 March 2007 the Federal Magistrate ordered that the mother file an application for costs, together with an affidavit in support. Her Honour further ordered that the father file an amended application for contravention (in lieu of his contempt application) and a response to the mother’s application for costs. The matter was listed before the Federal Magistrate on 1 June 2007 “with priority” as the mother had to travel from New Zealand for the hearing.
On 7 June 2007 her Honour discharged Order 8 of the orders of 28 July 2006 pursuant to the “slip rule”. She ordered that the father pay the mother’s costs of the recovery proceedings in the fixed sum of $3,800.00, that he pay the mother’s costs of the contravention application in the fixed sum of $3,000.00, and that he pay the costs of the costs application in the fixed sum of $635.00.
The grounds of Appeal
The father relies on the grounds of appeal set out in his Notice of Appeal filed 5 July 2007. They are as follows:
1.That the Federal Magistrate was in error in law in making any orders in relation to costs in circumstances where she weas [sic] functus officio.
2.That the Fedearl [sic] Magistrate was in error in law in amending Order 8 made 28 July 2006 pursuant to the “slip rule” thereby enabling her to make further orders.
3.That the Federal Magistrate was in error in the exercise of her discretion in determining that in all the circumstances there should be a departure from the provisions of section 117 (1) of the Act.
4.That the Federal Magistrate was in error in the exercise of her discretion in making a costs order in favour of the Mother in circustances [sic] where the Mother had conceded that she had breached an undertaking given the [sic] Court, such breach having precipitated the proceedings determined before her on 28 June 2006.
5.That the Federal Magistrate was in error in the exercise of her discretion in making an order for costs in a specified sum rather than permitting such order for costs to be assessed or agreed.
6.That the Federal Magistrate was in error in including in her order for costs, personal disbursements incurred by the Mother.
7.These Grounds of Appeal have been prepared without the benefit of the Federal Magistrate’s Reasons for Judgment and leave may be sought to amend such Grounds once the Reasons for Judgment become available.
Before me, the father’s counsel’s primary argument was that the learned Federal Magistrate was functus officio after 28 July 2007, and therefore precluded from dealing with the mother’s costs application. In the alternate, his counsel submitted that her Honour’s use of the slip rule to amend Order 8 of the orders made 28 July 2006 was an error of law, the slip rule not extending to “a mistake as a consequence of a deliberate decision” (Appellant’s Summary of Argument, page 3).
The second challenge to her Honour’s orders was directed to an asserted error by the Federal Magistrate in the exercise of her discretion in determining there were circumstances which justified a departure from “the usual rule in Family Law proceedings that each party pay their own costs” (Appellant’s Summary of Argument, page 4).
It was further asserted that her Honour was in error in fixing costs on a lump sum basis, which basis it was asserted was without foundation.
The father sought to impugn the Federal Magistrate’s determination that the mother should be entitled to expenses incurred by her in travelling from New Zealand. The father’s counsel submitted “that Part 19 of the Rules makes no provision for such costs of a party to be paid” (submissions, page 5). It was also submitted that there was a “double count” by the Federal Magistrate by awarding costs for both the contravention and costs application as both were dealt with on the same day.
I propose to deal with the grounds of appeal by firstly considering the challenges to her Honour’s reasons on the basis she was functus officio and/or that she inappropriately applied the slip rule. I thereafter propose to deal with discrete issues relevant to each of the costs orders.
THE FUNCTUS OFFICIO GROUND
Federal Magistrate’s reasons for judgment on issue of functus officio and the slip rule
The Federal Magistrate set out in paragraph 10 her reasons the exchange between the mother and herself when the mother referred to her application for costs.
Thereafter her Honour noted when the matter was before her on 27 November 2006 the father submitted:
…that the Court was ‘functus officio’ because the court had ordered that all outstanding applications be dismissed, which included each party’s costs application sought in the mother’s original Application and the father’s Response filed prior to the hearing. (paragraph 13)
Her Honour explained that on 28 July 2006 the father had not referred to his functus officio argument, but because he was unrepresented and had raised the issue in earlier mentions and his affidavit, her Honour sought submissions from the father on the issue. Her Honour recorded:
As far as I can make out, the father argues, in his affidavit filed
13 November 2006, that on the authority of Kazimierczak & Koch my judgment “had been perfected by the nature of the orders and by being drawn up and sealed and signed by her Honour on 28 July 2006” in particular by the terms of Order 8 that “all outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.” The father says he further relies on the authority of O & L. The father deposes in another affidavit filed 31 January 2007 that “there is an inconvenient common law doctrine… that a power conferred by statute is exhausted by its first exercise (see Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193. In the event of an application for revocation of Order 8, I would submit that detrimental reliance raises an estoppel which prevents the order being revoked.” (paragraph 16) (footnotes omitted)
Her Honour referred to the decision of the Full Court in D & D [2000] FamCA 1668 when the Full Court discussed the issue of whether the trial Judge was, in the circumstances of that case, functus officio.
Her Honour thereafter referred to the decision in Kazimierczak & Koch (1987) FLC 91-849 and quoted from the judgment of the Full Court at 76,418 as follows:
The Court was not functus officio – since the power to award costs is derived from the Act, any limitation as to the exercise of the power to award costs must be found within the Act itself.
Her Honour also referred to my judgment in O & L [2005] FamCA 1233, an application in which a permanent stay of proceedings was sought after costs orders had been made. Her Honour noted:
In both the cases referred to, the question of costs had already been determined. In the present case, it is clear from the transcript that the mother wanted the court to determine her application for costs and the court did not hear her application. At no time did the Court make a finding in relation to costs. (paragraph 20)
Her Honour then went on to discuss the mother’s counsel’s submissions which were to the effect that, having regard to r 21.02 of the Federal Magistrates Court Rules 2001 (“the rules”), the Court was not precluded from hearing a further application by either party for costs. Her Honour noted that, in the alternate, the mother’s counsel submitted the matter was amenable under the slip rule “given the Court clearly intended to address the issue of costs”.
Whilst not accepting the mother’s counsel’s submissions as to the effect of r 21.02, her Honour concluded it was unnecessary to determine that issue as she was satisfied that Order 8 of her orders of 28 July could be discharged pursuant to the slip rule. Her Honour then set out an extract from the judgment in R & R [Slip Rule Application] [1998] FamCA 833 where Chisholm J discussed relevant authorities on the slip rule and concluded:
It is clear from the transcript that it was not the court’s intention to dismiss either party’s application for costs. As already noted, the mother brought to the court’s attention her application for costs during the course of the hearing. Unfortunately, she did not raise it again, and her application was not heard. I am satisfied the order dismissing all outstanding applications should not have been made given neither party’s application for costs had been heard. As said by Justice Chisholm:
it does not assist the parties or the cause of justice to confine too narrowly the powers of the trial judge to correct an obvious slip…
Applying the test in [R & R [Slip Rule Application]], I am satisfied that had it been brought to the Court’s attention that the mother’s application for costs had not yet been determined, before the orders were made, the Court would have determined the application, or, given the particular circumstances on the day, adjourned the application for hearing of the costs application to another day. Order 8 of orders made 28 July 2006 will therefore be discharged pursuant to the ‘slip rule’ and the mother’s application for costs determined. (paragraphs 24 and 25) (footnotes omitted)
The parties’ submissions on functus officio
In his written submissions, the father’s counsel argued that the factual situation before the Federal Magistrate was different to that which pertained in Kazimierczak & Koch as the application in that case was made after judgment in property proceedings in circumstances where no order for costs had been originally sought in the initiating application or at the time judgment was delivered. Counsel contrasted that situation to the instant case where he submitted the mother had sought an order for costs in her original application and the father had also sought an order for costs in his response. Counsel submitted:
Rightly or wrongly, the Federal Magistrate has made Order 8 and such Order has been perfected by being drawn up and sealed. It is submitted that no new Order for costs could thereafter be made in the proceedings. (Appellant’s submissions, page 3)
By contrast, counsel for the mother supported her contention that the father’s ground of appeal was not made out by repeating the quote from Kazimierczak & Koch set out by the learned Federal Magistrate in her reasons, and further in reliance on r 21.02 of the rules.
Counsel submitted in relation to that rule:
…[a]s such, the Mother’s entitlement to make a costs application did not depend upon her inclusion of such an application in her orders sought and the dismissal of all applications did not preclude her making a subsequent application for her costs within the further time allowed by the Federal Magistrate. (Respondent’s Summary of Argument, page 2)
Relevant Law - Federal Magistrates Court Rules 2001
It is relevant for the purpose of this appeal to set out r 21 of the rules, where relevant, which deals with costs. Rule 21.02 is in the following terms:
Rule 21.02 Order for costs
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
Rule 21.03 Determination of maximum costs
…
(2)However, an amount specified must not include an amount that a party is ordered to pay because the party:
(a) has failed to comply with, or has sought an extension of time for complying with, an order or with any of these Rules; or
(b) has sought leave to amend a document; or
(c) has otherwise caused another party to incur costs that were not necessary for the economic and efficient progress of the proceeding or hearing of the proceeding.
(3) The Court may vary the maximum costs specified if, in the Court's opinion, there are special reasons and it is in the interests of justice to do so.
Also relevant is r 21.10 which provides:
Rule 21.10 Costs and disbursements
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Schedule 1; and
(b) disbursements properly incurred.
Note For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 13 of the Federal Magistrates Court (Bankruptcy) Rules 2006.
Neither “costs” nor “disbursements” are defined in the dictionary to the rules, nor in the Act.
The rationale for making, and the recompense afforded by a costs order is explained by McHugh J in Latoudis v Casey (1990) 170 CLR 534 as follows:
An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connexion with the litigation: Kelly v. Noumenon Pty Ltd (1988) 47 S.A.S.R. 182, at p. 184. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party. In Cilli v. Abbott (1981) 53 F.L.R. 108, at p. 111, Keely, Toohey and Fisher JJ. pointed out that “the object of costs is not to penalize; it is to indemnify the successful party in regard to expense to which he has been put by reason of legal proceedings”: see also Anstee v. Jennings (1935) V.L.R. 144, at p. 148.
Also relevant to the issues raised in this appeal is r 16.05(2) of the rules (the statutory codification of the common law “slip rule”):
Rule 16.05 Setting aside
(1) The Court may vary or set aside its judgment or order before it has been entered.
(2) The Court may vary or set aside its judgment or order after it has been entered if:
(a) the order is made in the absence of a party; or
(b) the order is obtained by fraud; or
(c) the order is interlocutory; or
(d) the order is an injunction or for the appointment of a receiver; or
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order is made consents.
As will become apparent from my discussion of the slip rule, also relevant is r 1.03 which sets out the object of the rules. It is in the following terms:
Rule 1.03 Objects
(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) If appropriate, the Court will help to implement primary dispute resolution.
The term “functus officio” is referred to in Halsbury’s Laws of England, 4th ed, vol 29, para 766:
The doctrine of functus officio
The justices are functi officio where they have discharged all their judicial functions in a case. Thus, in criminal proceedings they may not, save in certain specific circumstances, re-open the case after sentencing the accused or after committing him to the Crown Court for sentence.
[footnotes omitted]
A more comprehensive definition of the term is found in Butterworths Australian Legal Dictionary (1997) at 509 as follows:
Functus officio – having discharged one’s duty; having completed one’s term of office; having ceased to hold some public appointment; having performed the authorised act and being unable to go back to it a second time. The state of an administrator or tribunal which has discharged its duty or performed its functions so that nothing further remains to be done. One who is functus officio is precluded from again considering the matter even if new arguments or evidence are presented: MacMillan Bloedel Ltd v Minister of Finance (1985) 60 BCLR 145. See also Certiorari; Prohibition. [original emphasis]
The historical background leading to the functus rule and the applicability of the principles associated with it are described by Jordan CJ in Graziers Association of New South Wales v Australian Legion of Ex-Serviceman and Women (1949) 49 SR (NSW) 300 at 303:
Prior to the Judicature Acts in England, judges in Chancery could rehear their own decisions and those of their respective predecessors, and such rehearings were, in effect, appeals from the former hearings; but no such jurisdiction existed at common law, except that a judgment of the court was amendable in the term in which it was made but not afterwards … The Judicature Acts in effect abolished the jurisdiction to rehear in Chancery … The general rule, as established by the authorities to which reference is made in Ex parte Hassell (1937) 37 SR(NSW) 192 at 195 is that “when an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio, and cannot add to, amend, or detract from what he has done”; although in some jurisdictions an adjudication is not regarded as having been finally made until it has been passed and entered … This rule applies to judges exercising judicial authority conferred by statute, unless otherwise provided by statute…
The rationale of the rule is explained by Gibbs CJ in Bailey v Marinoff (1971) 125 CLR 529 at 539 where his Honour said:
The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing.
It is also useful at this point to refer to the common law principles which apply to the slip rule. Those principles were explained by the Full Court in Noetel v Quealey (2005) FLC 93-230 at paragraph 62 as follows:
The slip rule is a well settled common law convention which allows for an error arising from an accidental slip or omission or an ambiguity or infelicity of expression not of substantive significance to be corrected at any time by a judge by further order.
The interrelationship of the doctrine of functus officio and the slip rule is subject of extensive discussion in the recent decision of the New South Wales Court of Appeal in Newmont Yandal Operations Pty Ltd v J Aron Corporation and Goldman Sachs Group Inc & Ors [2007] NSW CA 195.
In that case, the Court of Appeal was concerned to determine whether or not orders which were made, and regularly entered, which on their face purported to dismiss the whole of proceedings in the Supreme Court, had in fact determined the whole of the litigation between the parties concerning indebtedness said to arise from hedge transactions, or had only determined certain questions in discrete proceeding (“the separate proceedings”). The separate proceedings were designed to permit the determination of issues arising out of an asserted formal defect in deeds.
The separate proceedings, which were resolved in favour of the defendants in the substantive proceedings, resulted in the defendants alleging the substantive proceedings were res judicata, or that the plaintiff was estopped from continuing the substantive proceedings. Spigelman CJ noted that the trial Judge, having determined the separate proceedings, could have “moulded an order… which would have prevented the impact which [the appellant] now seeks to allege is the effect that [the trial Judge’s orders] actually had…”
After making orders in the separate proceedings, the trial Judge, when the issue of the effect of the orders was sought to be agitated before him, disqualified himself from further hearing the matter, and the proceedings came before White J who made amended orders after consideration of two alternate bases of jurisdiction to do so. Those bases were the inherent jurisdiction of the Court, and in reliance on the slip rule (as codified in the Uniform Civil Procedure Rules 2005 (NSW)).
On appeal against White J’s orders, Spigelman CJ (with whom Santow JA and Handley AJA agreed) extensively reviewed the relevant authorities on the inherent jurisdiction of a superior court of record to amend an order to reflect the intention of the Court. That discussion is not relevant for the purposes of this appeal.
Thereafter his Honour considered why the order in the separate proceedings before the Court was amenable to correction under the slip rule.
Having set out four propositions advanced by the appellant as to when the slip rule could be invoked, his Honour noted the requirement for a Judge of the Supreme Court, by virtue of s 56(2) of the Civil Procedure Act2005 (NSW), to “bear in mind the overriding purpose [of the rules] when interpreting the rule”, but explained, even without such guidance, he would have come to the same conclusion. Thereafter his Honour considered the interpretation of r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) which is in the following terms:
Rule 36.17 Correction of judgment or order (“slip rule”)
(cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10)
If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
His Honour said:
By reason of the insertion of the overriding objective into the Civil Procedure Act 2005 words such as “error” and “correct” in the slip rule should not be given a narrow interpretation. In my opinion, carrying into effect the actual intention of the judge making the order, and making sure that the order did not have a consequence which the judge clearly intended to avoid, falls within the natural and ordinary meaning of the word “correction”, particularly as understood in the light of the overriding purpose. The “real issues in the [2004] proceedings”, within the meaning of s 56(1), did not extend in the direction for which, let alone as far as, [the appellant] seeks to contend in its new defence in the 2003 proceedings.
By reason of the significance of the overriding purpose with respect to the slip rule in this State, earlier authorities must be treated with caution. (paragraphs 116 and 117)
It is clear from an examination of r 36.17 of the Civil Procedure Rules and r 16.05(2)(e) of the rules that the former more closely resembles the common law principles colloquially known as the “slip rule”. However I am satisfied that there is some commonality of purpose evinced in s 56 of the Civil Procedure Act 2005 (NSW) and r 1.03(1) of the rules and that I should give a wide interpretation to r 16.05(2)(e).
I accept that, subject to the availability of r 16, a Federal Magistrate is “functus officio” when a matter has been regularly determined, and orders are perfected. The Federal Magistrates Court, like the Family Court and the Federal Court, is a court created by statute and does not have power to re-open its orders regularly entered (see DJL v Central Authority (2000) 201 CLR 226 at 248).
This leads to a consideration of whether the slip rule, or more correctly in this case r 16.05(2)(e), is available to correct the error by the Federal Magistrate in overlooking the costs applications.
The slip rule has been considered and applied in many cases (see Noetel v Quealey at paragraph 63).The rule permits the correction of an accidental slip or error which does not involve the exercise of discretion. It has been applied by judicial officers in varied situations.
In Newmont Yandal Spigelman CJ considered whether the order the subject of appeal was amenable under the relevant rule because it did not, as in this case, reflect the intention of the Court. He concluded in the instant case that “the error was obvious”, and if the error had been drawn to the attention of the trial Judge, he “would ‘at once’ have varied the order”.
It appears to me that if, at the conclusion of the hearing, the failure to deal with the costs applications which were before her Honour had been drawn to her attention before engrossed orders were taken out, she would at once have varied the order which clearly did not reflect her intention.
I am further fortified in this view by other authorities on the slip rule, and in particular the decision of Toohey J in Raybos Australia Pty Ltd & Anor v Tectran Corportion Pty Ltd (1988) 77 ALR 190. In that case the proceedings were dismissed, but no application was made for costs by an accidental oversight by counsel appearing for the respondent. Toohey J in permitting the respondents to bring a subsequent an application for costs said:
In many cases the slip rule or its equivalent is invoked when, through error or oversight, a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced. But it is clear that this power of correction extends to cases where a matter, through inadvertence, was not dealt with at the hearing. In that case the purpose of correction is not to give expression to the intention of the court at the time the judgment or order was pronounced: Coppins v Helmers & Brambles Constructions Pty Ltd [1969] 2 NSWR 279. That is the situation which has arisen here. None of the cases so far mentioned was concerned with a failure to ask for the costs of a successful proceeding. However Re Inchcape (Earl of) [1942] Ch 394 was such a case and Morton J there held that a rule comparable to O 29, r 11 empowered the court to amend an order to include provision for costs which had not been asked for earlier. So too was Rowe v Delfs [1966] WAR 49 where Hale J varied an earlier order by including a certificate for the cost of transcript which counsel had omitted to ask for.
I am satisfied then that the court is empowered to grant the relief which the respondents seek. I am also satisfied that it is appropriate to make an order amending the order made on 6 November 1987 by including provision that the applicants pay the respondents’ costs of that summons… [my emphasis]
See also The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 5) [2007] FCA 466.
For completeness, in determining that the learned Federal Magistrate was not in error in applying r 16.05(2)(e), I have considered the submissions made to me relying on the decision of the Full Court in Kazimierczak and Koch (1987) FLC 91-849. I am satisfied that decision is not directly apposite to this matter for the following reasons:-
(a)The costs sought in that matter, whilst sought under s 117 of the Act, were in respect of completed proceedings for settlement of property. The proceedings in question (property proceedings between parties to a marriage) were a “matrimonial cause”. Section 4(1)(f) also defines as a matrimonial cause “other proceedings” as defined in s 4(1) of the Act. It is in the following terms:
“matrimonial cause” means:
…
(f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.
(b)Section 4(1)(f) enables the Court to hear applications about completed proceedings between parties to a marriage for divorce, maintenance, property settlement, enforcement of maintenance agreements, or with respect to a financial agreement. Thus, that particular case was decided on the basis of completed property proceedings being “proceedings” for the purpose of s 117 of the Act.
(c)Accordingly, the Family Court had jurisdiction under s 117 to make a costs order in “proceedings” at any time because s 4(1)(f) extended the definition of proceedings to “completed” proceedings.
[my emphasis]
No argument was addressed to me as to whether parenting proceedings, or other proceedings under Part VII of the Act, include completed proceedings. I note that the definition of “proceedings” in s 4(1) does not include any reference to completed parenting proceedings. But it is unnecessary for me to determine that issue as I am satisfied from the discussion above, that her Honour did not err in law in applying r 16.05(2)(e) to vary her orders to include an order for costs.
The challenge to the costs orders
The Federal Magistrate determined, in the exercise of her discretion that the father should pay lump sum costs of $3,800.00 in respect of the proceedings in Melbourne before Federal Magistrate Walters and continued before her in Sydney. The mother had sought an order for $8,264.00 which included her legal costs of the first day of the proceedings in Melbourne and counsel’s fees, and the mother’s travel costs from New Zealand to Melbourne and thence Sydney where the children were returned to her.
The thrust of the father’s challenge to this costs orders is essentially a challenge to the exercise of discretion by her Honour in finding circumstances which required a departure from s 117(1) of the Act, and his assertion that the quantum ordered was “plucked out of the air”.
The wide discretion available to a judicial officer to make an order for costs is well established by authority (see Penfold and Penfold (1980) 144 CLR 311; (1980) FLC 90-800.)
In her reasons, her Honour carefully considered each relevant sub-section of s 117(2A), and on balance, came to the conclusion that, notwithstanding her Honour was critical of the mother’s behaviour in contravening her undertaking to the Court, other relevant matters warranted a departure from s 117(1). Those factors included the father’s superior financial circumstances, the fact the father was wholly unsuccessful in respect of the mother’s recovery application and his application that the children live with him, as well as the father’s misleading conduct which her Honour found led to the mother travelling to Melbourne and commencing proceedings in that Registry. I find no appealable error by the learned Federal Magistrate in the exercise of her discretion in finding there were circumstances to depart from s 117 (1).
The second challenge to this order is the asserted lack of basis to arrive at the quantum ordered of $3,800.00. I have already set out the provisions of
r 21.02(2) of the rules. It is clear from that rule that a Federal Magistrate may either make a defined costs order, or provide for assessment of costs under Chapter 19 of the Family Law Rules 2004. Rule 21.10 of the rules provides for ordering of lump sum costs in accordance with Schedule 1, unless the Court otherwise orders. Chapter 19 of the Family Law Rules 2004 has no application, except if costs are to be assessed (referred to in the rules by the old terminology “taxed”). Schedule 1 provides for a lump sum up to the first date of a Court hearing, and for a loading of 50% of the daily fee of $1,500.00 for counsel.
The Schedule provides for Stage 7 proceedings which include an application for a recovery order (lump sum $635.00 plus Court attendance daily hearing fee $1,500.00 plus 50% loading of daily fee for advocacy $750.00). The Schedule also provides for Stage 1A proceedings being proceedings initiating or opposing an application which includes interim order (other than procedural orders) up to completion of first court day of $1,875.00 plus Court attendance daily fee of $1,500.00 plus 50% advocacy loading. The rules also provide for disbursements (being Court fees and other fees and payments to the extent they have been reasonably incurred). I note that there is no provision in Schedule 1 for “expenses” such as the mother’s airline and accommodation costs. Thus, in applying the rules, her Honour could have made a lump sum order for costs for 19 June 2006 and 28 July 2006 of at least $4,125.00.
Her Honour carefully set out the mother’s counsel’s submissions which included the breakdown of the mother’s costs, and also the asserted lump sum fees payable in accordance with Schedule 1. Her Honour clearly had regard to all relevant circumstances under s 117(2A) favouring an award of costs to the mother, and discounted the amount to be awarded to the mother, having regard to her breach of her undertaking given to the Court, to $3,800.00. I am satisfied that this order was well within the reasonable ambit of her Honour’s discretion.
The second costs order made by her Honour (Order 4) was a lump sum costs order of $3,000.00 against the father in respect of his second unsuccessful contravention application.
The Federal Magistrate recorded the basis of the mother’s costs claim under
s 70 NCB as follows:
The mother claims $400 in airfares to and from New Zealand, $218 for two nights’ accommodation and $20 in transfer costs, a total of $638 in disbursements. In addition, she claims counsel’s fees for a one day hearing in accordance with Schedule 1 of the Federal Magistrates Court Rules at $2,250 including an advocacy loading and an amount towards her solicitors’ costs for reading and advising on the father’s material. I take into account that the mother was not required to prepare any documents in relation to this application. I make a costs order in favour of the mother in the sum of $3,000.00. (paragraph 44)
In determining there were circumstances which made it appropriate that the father pay the mother’s costs of the unsuccessful contravention application the Federal Magistrate took into account the mother was required to travel personally from New Zealand, the disparity in the parties’ financial circumstances, the total lack of success of the father’s application and the disorganised manner in which the father presented oral and written material which made it difficult for the mother, and her legal representatives, to know “precisely what allegations the mother was meeting and the basis of those allegations”. Her Honour, in the exercise of her discretion, took into account the fact the mother did not have to prepare any documents for the contravention application.
The father’s counsel seeks to attack this costs order on the basis that her Honour has in effect reimbursed the mother for her travel costs in coming from New Zealand to appear in the contravention proceedings. He further seeks to attack the quantum of the order on the basis it is in excess of that claimed by the mother.
The latter submission can be disposed of shortly. The father’s counsel’s calculation fails to take into account the 50 per cent loading, calculated on the basis of daily hearing fee, for counsel’s fees and a sum to represent the mother’s solicitors’ preparation costs. I am satisfied that applying Schedule 1 her Honour could have, in the exercise of her discretion, awarded the mother costs of at least $3,750.00. Accordingly there is no merit in the first basis of challenge to this order.
Turning then to the father’s assertion that the mother’s travel costs were wrongly included in the costs ordered I note in that Chapter 21 of the rules does not provide for reimbursement of a party’s expenses (other than properly incurred disbursements such as filing fees). Rule 21.12 deals with expenses incurred by a witness required to attend proceedings. The mother was not a witness, but a party to the proceedings in Australia the jurisdiction in which the parties chose to deal with parenting proceedings. In those circumstances it appears to me that there is prima facie merit in the father’s argument that her Honour should have disregarded these expenses. Such a view is consistent with the principles applicable to awarding costs enunciated by McHugh J in Latoudis. However, it is not clear from her Honour’s reasons that she did actually include those expenses in her overall lump sum assessment. As I have already noted the sum awarded was less than the lump sum provision in Schedule 1. I am therefore satisfied there is no appealable error by her Honour in making Order 4 of her orders.
The father’s final challenge to the costs orders is his challenge to Order 5 of her Honour’s orders, in which she ordered the father to pay the sum of $635.00 in respect of the costs hearing, on the basis this constituted a “double count” because costs were already awarded in respect of the contravention application heard at the same time.
The sum awarded was $635.00 which sum was based on Stage 7 of Schedule 1. Stage 7 relates to a recovery order or enforcement of an order. The appeal documents disclose that the mother’ solicitor was involved in interim appearances on 27 November 2006 and 13 March 2007 when the mother was ordered to file an application for costs and an affidavit in support (judgment, paragraphs 12-13). An affidavit was prepared and filed by the mother’s solicitor. The father opposed the mother’s costs application at the interim hearings on the basis her Honour was functus officio.
It is apparent that the mother incurred legal costs and disbursements in respect of the costs application in addition to the hearing of that application concurrently with the father’s contravention application. Again, I am satisfied it was within her Honour’s discretion to award the modest sum of $635.00 in respect of the costs application, and that the father has not demonstrated appealable error.
Costs of the appeal
At the conclusion of the appeal I sought submissions from each party about the costs of the appeal. The mother’s counsel sought costs in the sum of $7,100.00 but did not provide a break down of the costs or tender a schedule of costs. The father, whose financial circumstances are superior to those of the mother, has been wholly unsuccessful in the appeal. In those circumstances I am satisfied it is appropriate that the father should pay the mother’s costs of the appeal. There is insufficient evidence before me to support the lump sum for which the mother contends. I am satisfied it would therefore be appropriate if costs are not agreed, for an assessment to occur.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
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