Secretary of the Department of Health and Human Services and Ray and Ors (Costs)
[2011] FamCAFC 21
•10 February 2011
FAMILY COURT OF AUSTRALIA
| SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES & RAY AND ORS (COSTS) | [2011] FamCAFC 21 |
| FAMILY LAW - COSTS – Costs of appeal – application for Costs Certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – whether the Court has the power to grant a Costs Certificate to a State authority – consideration of s 14 of the Federal Proceedings (Costs) Act 1981 (Cth) – where the Full Court made an order allowing the appellant 30 days to provide submissions in relation to the issue. |
| Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Secretary of the Department of Health and Human Services |
| 1ST RESPONDENT: | Ms Ray |
| 2ND RESPONDENT: | Mr Males |
| 3RD RESPONDENT: | Mrs Males |
| INTERVENOR: | Attorney-General of the Commonwealth of Australia |
| INDEPENDENT CHILDREN’S LAWYER FOR “A”: | Legal Aid Commission of Tasmania |
| INDEPENDENT CHILDREN’S LAWYER FOR “J”: | Fitzgerald & Browne Lawyers |
| FILE NUMBER: | (P)HBC | 1366 | of | 2007 |
| APPEAL NUMBER: | SA | 37 | of | 2009 |
| DATE DELIVERED: | 10 February 2011 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Bryant CJ, Finn and Ryan JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 March 2009 |
| LOWER COURT MNC: | [2009] FamCA 219 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sealey SC and Mr Turner |
| SOLICITOR FOR THE APPELLANT: | Crown Law |
| SOLICITOR FOR THE 1ST RESPONDENT: | Self-represented litigant |
| SOLICITOR FOR THE 2ND RESPONDENT: | Self-represented litigant |
| SOLICITOR FOR THE 3RD RESPONDENT: | Self-represented litigant |
| COUNSEL FOR THE INTERVENOR: | Mr Gageler SC and Mr Lewis |
| SOLICITOR FOR THE INTERVENOR: | Australian Government Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER FOR “A”: | Mr P. Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER FOR “A”: | Legal Aid Commission of Tasmania |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER FOR “J”: | Mr T. Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER FOR “J”: | Fitzgerald & Browne Lawyers |
Orders
That within 30 days of the date of these orders the appellant be at liberty to file and serve any written submissions in relation to the operation of section 14 of the Federal Proceedings (Costs) Act 1981 (Cth) and the appellant’s entitlement to a costs certificate under section 9 of the Federal Proceedings (Costs) Act 1981 (Cth).
IT IS NOTED that publication of this judgment under the pseudonym Secretary of the Department of Health and Human Services & Ray and Ors (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT HOBART |
Appeal Number: SA 37 of 2009
File Number: (P)HBC 1366 of 2007
| Secretary of the Department of Health and Human Services |
Appellant
AND
Ms Ray
1st Respondent
AND
Mr Males
2nd Respondent
AND
Mrs Males
3rd Respondent
AND
Attorney-General of the Commonwealth of Australia
Intervenor
AND
Independent Children’s Lawyer for “A”
AND
Independent Children’s Lawyer for “J”
REASONS FOR JUDGMENT
On 22 December 2010 this Full Court made orders and published reasons for judgment allowing an appeal by the Secretary of the Tasmanian Department of Health and Human Services against orders made by Benjamin J on 31 March 2009.
At the conclusion of the hearing of that appeal we invited oral submissions in relation to the costs of the appeal. Such submissions were made on behalf of the various other parties, who had taken part in the appeal, seeking costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”). However the Solicitor General for Tasmanian, who appeared for the Secretary, informed us that he was uncertain as to his instructions in relation to costs, and thus made no further submissions.
In light of the submissions which were made to us by the other parties in relation to costs, and given the outcome of the appeal and the important issues which the appeal raised, we determined in our reasons for judgment delivered on 22 December 2010 that there should be no order for costs in relation to the appeal, but that costs certificates should be granted to those parties who had sought them. We then stated in the final paragraph of our reasons:
102. … It remains open to the Secretary to seek such a certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) if it is considered appropriate (by letter to the Appeal Registrar).
The Director of Public Prosecutions for Tasmania, who is the solicitor on the record for the Secretary, has now written to the Appeal Registrar referring to paragraph 102 of our reasons and requesting a costs certificate for the successful appellant Secretary under s 9 of the Costs Act.
We have considered that request together with the provisions of the Act. It is now our view, that not only would it not be appropriate for us to grant the Secretary a certificate, but indeed that we have no power to do so given the operation of s 14 of the Act which provides:
(1) A court is not empowered by this Act to grant a costs certificate to:
(a) the Commonwealth;
(b) a State;
(c) the Northern Territory;
(d) a person suing, or being sued, on behalf of the Commonwealth, of any State or of the Northern Territory;
(e) an authority of the Commonwealth, of any State or of any Territory (including the Northern Territory and Norfolk Island);
(f) a body corporate that has a paid‑up capital of $200,000 or more; or
(g) a body corporate that is not a body corporate referred to in paragraph (f) but is related to such a body corporate.
(2) For the purposes of subsection (1), the question whether bodies corporate are related to each other shall be determined in the same manner as the question whether corporations, within the meaning of the Corporations Act 2001, are related to each other would be determined under that Act.
We consider, however, that given that there was no discussion of s 14 at the hearing of the appeal nor in our reasons for judgment in relation to the appeal, that we should give the Secretary a period of 30 days from the date of delivery of these reasons to make any written submissions to us in relation to any entitlement which it is considered he may have to a costs certificate notwithstanding the apparent operation of s 14.
If any such further submissions are received from or on behalf of the Secretary, we will then further consider his request for a certificate in light of those submissions.
If it is decided that no further submissions should be made on behalf of the Secretary, it would be of assistance if the Appeal Registrar could be advised of that decision by a brief letter.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Ryan JJ) delivered on 10 February 2011
Associate:
Date: 10 February 2011
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