Vranic & Vranic

[2007] FamCA 401

FAMILY COURT OF AUSTRALIA

VRANIC & VRANIC AND ORS [2007] FamCA 401

FAMILY LAW - PRACTICE AND PROCEDURE - Service
COURTS AND JUDGES - Rules of Court - Functus officio

APPLICANT: Mrs Vranic

FIRST RESPONDENT: Mr Vranic

SECOND RESPONDENT: Ms Muncic

THIRD RESPONDENT: M Pty Ltd

FILE NUMBER: SYF 6740 of 2002

DATE DELIVERED: 7 May, 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Justice Cohen

HEARING DATE: 19 March, 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Oliveri Attorneys

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENTS: Van Houten Solicitors

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 6740  of 2002

Mrs Vranic

Applicant

And

Mr Vranic

First Respondent

And

Ms Muncic

Second Respondent

And

M Pty Ltd

Third Respondent

REASONS FOR JUDGMENT

1. On 22 September, 2006 I made orders in response to some interlocutory applications. One of the orders is: “4. Costs are reserved for one month.” The wife now seeks costs pursuant to this order. Her application for costs was filed on 13 October, well within time. However it was not served until 30 January, 2007. It was not served immediately after filing because of a fault in the Court’s listing system. The method which the Court adopted in its attempt to cure it without putting litigants to additional expense and inconvenience initially took the timing of service out of the applicant’s hands. When the application was filed the Court was unable to allocate a return date and did not know when it could. It volunteered to send the parties copies of the application which had been filed once it could be endorsed with the return date. The applicant could justifiably assume service on the other party was effected by the Court at the earliest time reasonably possible. In the circumstances, if it is necessary and if I have the power to do so, it would be appropriate to extend the time for service until after 30 January, 2007.

2. The second and third respondents have submitted, as a preliminary issue, that I do not have the power to extend time because, having made a specific order for the making of any application for costs within a stated time, the order being a final order, I am functus officio and I could not make a costs order after the expiration of one month.

3. The solicitor for the wife has argued that because s117 Family Law Act provides a Code and the Rules of Court are made pursuant to the Act and provide for extension of time for service, I have the power to extend time and my own orders cannot take that away. He also submitted that there is no need for any extension of time because the rules only limit time for filing, not for service and, additionally, the order I made really only refers to the making of an application not service of it.

4. Counsel for the second and third respondents relies on the unreported decision of the Full Court of the Family Court of Australia in D v D (20 December, 2000) in which the Court said that once a judge has performed his function in a matter by making final orders that judge has no further authority in the matter. The Full Court was there speaking of a decision to revoke an earlier decision. However, it recognised that the issue of whether or not a particular power is only exercisable once rather than from time to time depends on statutory interpretation if statute has relevantly supplanted the common law. The Acts Interpretation Act, 1901 (Cth), s33(1) permits a power conferred by statute to be exercised from time to time unless the contrary intention appears.

5. Counsel for the second and third respondents in his written submissions properly did not fail to inform me that in D v D the Full Court relied on Kazimierczak v Koch 1987 FLC 91- 849 in which similar argument to his had been presented and rejected. The ground relied on is that s117 of the Family Law Act regulates costs in the Family Court of Australia, so any limitation on the exercise of that power must be found in the Act itself. By s4(1), it permits the Court to make orders “relating” to completed proceedings.

6. In Kazimierczak v Koch it was held that the then r18 imposes a time limit on costs applications to prevent them from being made long after completed proceedings because, if too much time passes between the completion and the application, the application may be regarded as no longer related to the completed proceedings.

7. Part 19.08(2)(b) of the current rules provides that an application for costs may be made by filing an application in a Court within 28 days after the final order is made. Rule 1.14(1) provides that a party may apply to extend a time fixed under the rules or, very importantly, by a procedural order. The order I made relating to costs on 22 September is a procedural order rather than a final substantive order. There is no requirement in the rules that service be within a specified time or, in particular, within 28 days of a final order in the case of a costs application. Rule 1.15 provides that if a rule or order requires a person to undertake an action but does not specify a time before which it must be undertaken, it must be undertaken as soon as practicable. In the case before me, I find that service was achieved as soon as practicable when the Court sent a copy of the application for costs to the respondents.

8. Rule 1.11 permits a Court to set aside or vary an order made in the exercise of a power under the rules. By Rule 1.12, the rules only apply if the Court does not order otherwise. The rules are statutory rules. The intention appearing from them is that an order for time for service may be varied if the demands of justice require that variation. There is clearly no intention disclosed by the rules that the power to vary the time set for service, even if by order, should not be exercised from time to time in relation to the same service. If this were not so those deliberately avoiding service would be greatly assisted. However, it does not seem to matter here because the application for costs was filed within both 28 days and the calendar month which I specified.

9. My above analysis of the position at law is fully in accord with the wife’s solicitor’s written submission. It requires me if necessary to find that I am not prevented by the doctrine of functus officio from extending time for the filing and service of the wife’s costs application, but that there is no need to do so because the application was filed and served in accordance with the time requirements of the order I made and the rules. My order relates to the time for making the application, not for service of it and service has been in accordance with the rules. Accordingly, I shall declare that I am not functus officio and shall list the matter for further hearing of the wife’s application for costs.

10. The orders I shall make are:

    1.   I hereby declare that I am not functus officio in relation to hearing the wife’s application for costs against the second and third respondents filed on 13 October, 2006.

    2.   The matter is stood over to a date to be fixed for hearing for half a day as a part heard matter.        

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate: 

Date:  7 May, 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as VRANIC & VRANIC