Yates & Yates (Independent Children's Lawyer - Costs)
[2012] FamCAFC 219
•21 December 2012
FAMILY COURT OF AUSTRALIA
| YATES & YATES (INDEPENDENT CHILDREN’S LAWYER - COSTS) | [2012] FamCAFC 219 |
| FAMILY LAW – APPEAL – COSTS – oral application for the grant of costs certificates by the Independent Children’s Lawyer (“ICL”) – where the ICL is the Legal Aid Commission of Tasmania (“the Commission”) or a legal practitioner effectively employed by or on behalf of the Commission – whether s 14(1) of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) prevents the grant of costs certificates to the Commission or to a lawyer employed by or on behalf of the Commission – whether the Commission is “an authority of the State” pursuant to s 14(1)(e) – where the ICL submits such an authority acts “in right of or on behalf of the State”, is “a person or body exercising power or command” on behalf of the State and is “a body which is given by the State the power to direct or control the affairs of others on behalf of the State” – where the ICL submits there is no basis to find the Commission has these powers or acts on behalf of the State – where the Commission is clearly a body established under State law and possesses powers conferred on it by State law to carry out its function of providing legal aid – where the purpose of the Costs Act is to provide reimbursement to litigants where they have incurred costs in circumstances beyond their control, such as in this case where the husband and wife incurred costs because the trial judge made an erroneous determination of a question of law and aspects of the case were remitted for re-hearing – where it can be argued the Costs Act was not intended to allow an ICL who is effectively employed by a Legal Aid Commission, or indeed who is the Commission itself, to be paid money in reimbursement of legal costs, particularly where the Commission chose to appear and was not obliged to – ICL’s oral application dismissed. |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 14(1)(a)-(g) Legal Aid Commission Act of Tasmania 1990 (Tas) ss 6(1)(a), 7(1), 10(1), 25(2), 27 and Guideline 11.5 |
| Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 Committee of Direction of Fruit Marketing v Australian Postal Commission (delegate of) (1980) 30 ALR 599 Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559 Maluka & Maluka [2011] FamCAFC 187 |
| APPELLANT: | Mr Yates |
| RESPONDENT: | Ms Yates |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
| FILE NUMBER: | HBC | 506 | of | 2009 |
| APPEAL NUMBER: | SOA | 76 | of | 2010 |
| DATE DELIVERED: | 21 December 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Finn, Strickland & Johnston JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 September 2010 |
| LOWER COURT MNC: | [2010] FamCA 775 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Ayliffe |
| SOLICITOR FOR THE APPELLANT: | Munro & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Turnbull |
| SOLICITOR FOR THE RESPONDENT: | Bishops Barristers & Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
Orders
The oral application by the Independent Children’s Lawyer for the grant of costs certificates pursuant to sections 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yates & Yates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 76 of 2010
File Number: HBC 506 of 2009
| Mr Yates |
Appellant
And
| Ms Yates |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 31 August 2012 this court delivered its reasons for judgment and made orders in relation to the Amended Notice of Appeal filed by the husband on
30 March 2011.
At the conclusion of the hearing of the appeal an oral application was made by the Independent Children’s Lawyer (“ICL”) for the grant of costs certificates pursuant to sections 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) and this court made the following order:
(12)In the event that the Independent Children’s Lawyer seeks to pursue an application for costs certificates pursuant to the provisions of sections 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth), within 21 days of the date of these orders the Independent Children’s Lawyer file written submissions in support of such application and serve the same upon the other parties.
The ICL determined to pursue the application and sought and was granted an extension of time to file written submissions. On 28 September 2012 those submissions were filed. Although they were served on the other parties, no further submissions have been filed, noting of course that no order was made providing for that to occur.
The issue
The issue can be simply stated. Section 14(1) of the Costs Act provides as follows:
(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.
The question here is whether this subsection prevents the grant of costs certificates to the Legal Aid Commission of Tasmania (“the Commission”) where the Commission (or a legal practitioner effectively employed by or on behalf of the Commission) is the ICL.
The court framed the question differently in the reasons for judgment delivered on 31 August 2012. In paragraph 134 of those reasons for judgment the court said this:
Thus, the issue is whether s 14(1)(a), (b), (e) or (f) of the Costs Act precludes us from granting costs certificates to an Independent Children’s Lawyer where that Independent Children’s Lawyer is a Lawyer employed by the particular Legal Aid Commission which has arranged the representation, in this case the Legal Aid Commission of Tasmania. We understand that that is the case here, namely that the Independent Children’s Lawyer is a Lawyer employed by the Legal Aid Commission of Tasmania.
In his written submissions counsel for the ICL said this:
9.Pursuant to section 7(3) of the [Legal Aid Commission Act of Tasmania 1990 (Tas)] the Commission does not employ legal practitioners. Rather, pursuant to section 10 of the Act legal practitioners (staff) are employed by the Department of Justice (Tasmania) and are assigned to assist the Commission in the performance of its functions. [Mr Fitzgerald] (the Independent Children’s Lawyer) is such a legal practitioner.
However, we do not understand that this submission was put to suggest that because the ICL was “employed” by the Department of Justice rather than the Commission that meant that s 14(1) did not apply. We observe that if that was the submission then we are not persuaded by it. What s 10(1) of the Legal Aid Commission Act of Tasmania 1990 (Tas) (“the Act”) in fact provides is that, “persons may be … employed to assist the Commission in the performance of its functions or the exercise of its powers”. In other words, the word “employed” is used and not the word “assigned” as suggested by counsel.
The point of distinction sought to be made in paragraph 134 of our reasons for judgment was between an employee of the Commission and a private lawyer assigned by the Commission to act as the ICL. Where the latter is the case, and the private lawyer seeks the grant of a costs certificate, s 14(1) of the Costs Act does not apply (see Maluka & Maluka [2011] FamCAFC 187).
In any event, this issue was almost certainly resolved by counsel for the ICL subsequently in his written submissions describing the application by the ICL as having been made “for and on behalf of the Commission”.
Discussion
Although ss 14(1)(a)-(b) and (f) were referred to in paragraph 134 of our reasons for judgment, it is plain, as submitted by counsel for the ICL, that none of those paragraphs apply here. Thus, the question narrows to whether paragraph (e) applies, and in particular whether the Commission is “an authority of the State” of Tasmania.
There is no definition of “an authority” in the Act and counsel for the ICL has relied primarily on decisions of other courts in support of the proposition that
s 14(1)(e) is not enlivened here.
First though the relevant legislation needs to be considered.
As put by counsel for the ICL, the Commission is “an autonomous statutory authority created by [the Act]”.
Pursuant to s 6(1)(a) of the Act the primary function of the Commission is “to provide legal aid in accordance with this Act”, and pursuant to s 7(1) “[t]he Commission has such powers as are necessary to enable it to perform its functions and exercise its powers”.
Counsel for the ICL suggests that statutes such as the Costs Act are classified as remedial or beneficial, and therefore are to be “interpreted liberally”. Further to preserve a liberal interpretation any exception such as contained in s 14 must be interpreted “narrowly”. We clearly accept these submissions, but we do not agree with the interpretation of s 14(1)(e) as promoted in this case by the ICL.
Counsel for the ICL submits as follows:
a)“… the distinctive characteristics of ‘an authority of the State’ entails the devolution to an entity (the Authority) of the functions of the State, whereby that entity (be it a person or corporate body) acts in right of or on behalf of the State”. [Original emphasis]
In making this submission counsel referred to the decision of the Full Court of the Federal Court in Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143. There, in considering whether the court was empowered to grant a costs certificate, and whether
s 14(1)(e) applied the court held (at 53) that:
… Because the Committee is established by rules made under the ATSIC Act, to perform a public function on behalf of the Commonwealth, which would normally be performed by the Electoral Commission, it should be regarded as an authority of the Commonwealth. …
b)The word “authority” is used to mean “a person or body exercising power or command” (or public function) on behalf of the State. This meaning is said to be consistent with what Gibbs J said in the High Court decision of Committee of Direction of Fruit Marketing v Australian Postal Commission (delegate of) (1980) 30 ALR 599 at 602, namely:
The expression “authority of a State” refers to a body which exercises power derived from or delegated by the State, but the fact that a body is established under State law and possesses power conferred upon it by State law will not necessarily mean that the body is an authority of the State.
And further:
The words “authority of the State” naturally means a body which is given by the State the power to direct or control the affairs of others on behalf of the State.
c)The definition of “authority of the State” emerging from these cases is “a body which is given by the State the power to direct or control the affairs of others on behalf of the State”.
Here it is said there is no basis to find that the Commission either has these powers or acts on behalf of the State of Tasmania.
In simple terms the Commission is clearly a body established under State law and possesses powers conferred on it by State law. Further, in our view, it plainly carries out a function of the State, namely the provision of legal aid. Thus it seems to us that prima facie at least it is an authority of the State, as described by Gibbs J in Committee of Direction of Fruit Marketing v Australian Postal Commission (delegate of). There is also no doubt that the Commission exercises “power derived from or delegated by the State”, again as described by Gibbs J in Committee of Direction of Fruit Marketing v Australian Postal Commission (delegate of).
To suggest as counsel for the ICL does that the body must be given “power to direct or control the affairs of others on behalf of the State” is an unwarranted gloss. To appreciate this it is helpful to consider the entirety of what Gibbs J said on this topic in Committee of Direction of Fruit Marketing v Australian Postal Commission (delegate of). His Honour said this (at 602):
The expression “authority of a State” refers to a body which exercises power derived from or delegated by the State, but the fact that a body is established under State law and possesses power conferred upon it by State law will not necessarily mean that the body is an authority of a State. For example, a private company, such as a gas supply company, which provides a public service for profit, may be set up under the company laws of a State, and may be given special statutory powers to enable it to carry on its undertaking, but it does not thereby become an authority of a State. The words “authority of a State” naturally mean a body which is given by the State power to direct or control the affairs of others on behalf of the State – ie, for the purposes of and in the interests of the community or some section of it. In some cases it may be decisive that the body concerned is given exceptional powers of a kind not ordinarily possessed by an individual or a company, and that those powers are intended to be exercised for a purpose that would ordinarily be regarded as a purpose of government. On the other hand, in some cases it may be decisive that the body is conducted in the interest, and for the profit, of its members. In all cases, however, it is necessary to have regard to all the relevant circumstances in order to determine the character of the body in question. [Our emphasis]
The circumstances here are that the Commission is established by the State to provide legal aid, and it has all the powers necessary to effect that purpose. Clearly, in exercising those powers and carrying out its primary function the Commission is acting on behalf of the State. If it be necessary to find that the Commission has the power to direct or control the affairs of others on behalf of the State then that condition is plainly satisfied here by the provisions of the Act under which the Commission determines applications for legal aid and provides legal aid.
If further support needs to be garnered for this interpretation there is what Dixon CJ said in Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559 at 565, namely:
The word “authority” has long been used to describe a body or person exercising power or command. No doubt this has come about by a transfer of meaning from the abstract conception of power or command to the body or person possessing it. But in relation to such a public affair as public transport the use of the word “authority” as a description of a person or body implies he or it is an agency or instrument set up to exercise control or execute a function in the public interest whether as an emanation of the general government or as an adjunct of local government or as a specially constituted officer or body. [Our emphasis]
It is noteworthy that Gibbs J in Committee of Direction of Fruit Marketing v Australian Postal Commission (delegate of) referred to this decision and indicated that he was much assisted by what Dixon CJ said.
Further, it is useful to reflect on the purpose for which the Costs Act exists and the different position that an ICL has compared to other litigants.
Not surprisingly the purpose of the Costs Act as expressed in the Explanatory Memorandum is to provide reimbursement to litigants in Federal and Territory Courts where they have incurred costs in circumstances beyond their control. For example, in the case at hand, the appeal was allowed because the trial judge made an erroneous determination of a question of law, and aspects of the case were remitted for re-hearing as a result.
The appellant and the respondent would have each incurred unnecessary legal costs for the appeal, and will incur further unnecessary legal costs for the purposes of the re-hearing.
There is no question that an ICL can be heard on an appeal, but the fact of the matter is that there is no requirement that the ICL take part in an appeal. In this case the appeal was not brought by the ICL; the appellant is the husband and the respondent is the wife. The decision to appear, albeit the appeal is filed by one of the parties, is one entirely within the discretion of the ICL.
In these circumstances it can be argued that the Costs Act was not intended to allow an ICL who is effectively employed by a Legal Aid Commission, or indeed who is the Commission itself, to be paid money in reimbursement of legal costs, and particularly where the Commission chose to appear and was not obliged to. It is simply not the same as the need for the husband or the wife in this case to be reimbursed for the legal costs that they have each paid their legal representatives This perhaps exemplifies why an authority of a State is unable to obtain the grant of a costs certificate.
Conclusion
We find that the Legal Aid Commission of Tasmania is an authority of the State of Tasmania within the meaning of s 14(1)(e) of the Costs Act. Accordingly, here this court is not empowered to grant costs certificates under the Costs Act to the Commission acting as the ICL, and the oral application of the ICL should be dismissed.
It will be clear from our reasons that we do not agree with the suggestion in paragraph 6 of the decision of the Full Court in Maluka that there is “capacity to grant a certificate in favour of an ICL employed by a legal aid body”, and we note that the Full Court there acknowledged that that issue did not ultimately arise in that case. Rather the issue in that case was the grant of a costs certificate to a lawyer in private practice assigned by a Legal Aid Commission to act as an ICL. The Full Court decided that there was “no statutory barrier” to the grant of a certificate in such circumstances, and as presently advised, we do not disagree with that decision.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Johnston JJ) delivered on 21 December 2012.
Associate:
Date: 21 December 2012
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