Zotkiewicz and Commissioner of Police (Costs) - [2011] FamCAFC 200

FAMILY COURT OF AUSTRALIA

ZOTKIEWICZ & COMMISSIONER OF POLICE (COSTS)

[2011] FamCAFC 200

FAMILY LAW – FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS – COSTS – Application deemed to be an application for costs certificate – Where the Appellant was self represented – Where appeal succeeded on a question of law – Appellant in modest financial circumstances having incurred modest costs – Costs certificate granted

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004 (Cth)

Cramer v Davies (1997) 72 ALJR 146
De L v The Director General, New South Wales Department of Community Services & Anor (1997) 190 CLR 207

APPELLANT:

Ms Zotkiewicz

RESPONDENT:

Karl Joseph O’Callaghan, Commissioner of Police

FILE NUMBER:

PTW

1930

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

11 October 2011

PLACE DELIVERED:

Perth

JUDGMENT OF:

May, Thackray and Moncrieff JJ

HEARING DATE:

Written Submissions

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

27 January 2011

LOWER COURT MNC:

[2011] FCWA 5

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Thatcher

SOLICITOR FOR THE RESPONDENT:

State Solicitor’s Office

Orders

The appellant is granted a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal determined by a judgment pronounced on 8 July 2011.

IT IS NOTED that publication of this judgment under the pseudonym Zotkiewicz v Commissioner of Police (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 PERTH

Appeal Number: WA 7 of 2011
File Number: PTW 1930 of 2010

MS ZOTKIEWICZ

Appellant

And

KARL JOSEPH O'CALLAGHAN, COMMISSIONER OF POLICE

Respondent

REASONS FOR JUDGMENT

On 8 July 2011 orders were made allowing the appeal against the orders of Crooks J made on 4 February 2011 pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) for the return of N Zotkiewicz to Poland in the company of his father.
The formal orders made were as follows:
(1) The application of the appellant to adduce further evidence filed 30 March 2011 be dismissed.
(2) The appeal be allowed.
(3)The orders made by the Honourable Justice Crooks on 4 February 2011 be set aside.
(4)The Form 2 Application of the respondent filed 9 July 2010 be dismissed.
(5) The costs of the appeal be reserved.
(6)Within twenty-one (21) days the appellant file and serve submissions in support of any application for costs.
(7)Within twenty-one (21) days thereafter the respondent file and serve submissions in response to the submissions on behalf of the appellant in relation to costs.
(8)The appellant have leave to apply for a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), such leave to be exercised within 28 days of the making of these orders.
On 25 July 2011 the appellant filed an application in an appeal seeking orders in the following terms:
1. Reimburse Applicant’s costs incurred during the appeal case (Appeal NO WA 7/2011 from PTW 1930/2010) as outlined in supporting affidavit;
2. Permit the Applicant, Ms [Zotkiewicz], to amend the costs claim if other related costs are identified.
Although the application and affidavit are not in the form that we would normally anticipate submissions being filed, clearly the intention of the appellant was to make an application as contemplated by our orders and within the time prescribed.
In the circumstances we accept the appellant’s application and affidavit in support as satisfying the requirements stipulated for the appellant to make an application for costs.
In her application the appellant does not specify against whom she seeks costs.
The appellant prepared her appeal herself and represented herself at the appeal. She deposes to have received a single legal consultation from a firm of solicitors practising in family law to receive advice as to how to structure her argument and compile and file the relevant documents. She paid $550 for the consultation.
She estimates the balance of her costs to be another $533.70.
This is based on an estimate of her costs of photocopying, which she estimates at $249.60 in total (including the photocopying costs of her current application totalling $5.20) and includes the cost of replacing a friend’s printer cartridge, having used her friend’s printer for the purposes of preparing her documents in the appeal, the cost of the replacement being $50.
Additionally she includes the costs of “combined driving and parking expenses when attending Family Court at $200.”
With respect to the “driving and parking” and “photocopying and laser replacement” expenses the appellant has not produced any receipts in support of her claim.
She further claims the sum of $36.30 for a copy of a historical police report.
The appellant has annexed receipts in support of her paid legal costs of $550 and the cost of the police report of $36.30.
Whilst the appellant has made some minor arithmetical errors in the calculations in her affidavit, by any measure of legal costs, those sought are modest.
In the submissions filed in response on behalf of the respondent the respondent quite properly submits:
A costs order cannot ordinarily be made against the State Central Authority in the Family Court, unless the authority has asserted a [sic] interpretation of the regulations that is unreasonable or not convenient to give effect to Australia’s obligations under the Convention.
The respondent cites in support of the proposition the decision of the High Court of Australia in De L v The Director General, New South Wales Department of Community Services & Anor (1997) 190 CLR 207, the provisions of s 117AA of the Family Law Act 1975 (Cth) (“the Family Law Act”) and Regulation 7 of the Regulations.
Section 117AA empowers the court to make an order for costs only in the favour of a party who has been substantially successful in the proceedings and “against a personal body who holds or held an office or appointment under [the] Regulations and is a party to the proceedings in that capacity”. The respondent accepts it is such a body for the purposes of s 117AA.
However, s 117AA(2) limits the circumstances where a court may make an order to those where the court considers that:
…the party against whom the order is to be made asserted a meaning or operation of this Act or those regulations that the court considers:
(a)is not reasonable given the terms of the Act or regulations; or
(b)is not convenient to give effect to Australia’s obligations under the Convention concerned, or to obtain for Australia the benefits of that Convention.
Regulation 7 provides:-
A court must not make an order that requires the Commonwealth Central Authority or State Central Authority to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority.
The relevant regulation was subject to the interpretation given it by the High Court in De L v The Director General, New South Wales Department of Community Services (supra) which is now reflected in section 117AA of the Family Law Act.
The respondent also refers to paragraph 124 of the judgment where we observed as to the question of costs:
Although we will make directions allowing for the filing of costs submissions we note that the mother seems to have incurred little in the way of costs. Furthermore, our preliminary view is that this would not be an appropriate case for an order for costs against the State Central Authority. The position adopted by the State Central Authority was responsible. Its case was not only arguable, but presented with great care and skill. As for costs certificates, we note that the provisions of s 14(1)(e) of the Federal Proceedings (Costs) Act 1981 (Cth) would appear to prevent the grant of a certificate to the State Central Authority.
There is nothing in the submissions advanced on behalf of the appellant that would move us from our preliminary view that this is not a matter where costs should be awarded against the State Central Authority and accordingly we are disinclined to do so.
The respondent has not sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”) and in its submissions quite properly endorses the preliminary view we expressed in paragraph 124 of the judgment that the award of a certificate in favour of the respondent is prevented by s 14(1)(e) of the Costs Act.
The respondent in their submissions refer us to the fact that although the appellant was given leave to apply for a costs certificate she has not done so and submits against the awarding of a certificate in favour of the appellant, given the absence of such application, concluding that each party should bear their own costs.
Whilst it is the case that the appellant has not specifically applied for an order under the Costs Act certainly the availability of a costs certificate was considered in exchanges between the appellant and counsel for the respondent at the conclusion of the appeal. We indicated that if any order was made for costs that it would likely be for the grant of a certificate.
The subtleties of the differences between an application for costs under the relevant statutory provisions of the Family Law Act or the Costs Act, may not be easily understood by a self represented litigant, particularly one for whom English is not their first language, as is the case here.
We have regard to the decision of Kirby J in Cramer v Davies (1997) 72 ALJR 146 at paragraph 18 where His Honour, referring to the Costs Act, accepted the argument that:
3. The general objective the Act is remedial. It has been expressed as one designed to ensure that where errors of law occur in courts of law, which are not the fault of the parties but by definition the fault, if of anybody, of the administration of justice, the burden of costs which is invariably substantial should not fall upon the parties but should fall upon the community generally through laws such as the Act.
We also have regard to the main purpose of the Family Law Rules 2004, namely, to resolve matters “in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”.
In the circumstances of this appeal and the exchange with the appellant at the conclusion of the hearing of the appeal, we consider it appropriate to treat the application as if it were an application under the Costs Act.
Prior to the granting of a certificate, however, we must be satisfied that the necessary three preconditions as enumerated and discussed by Kirby J in Cramer v Davies (supra), namely:
·the existence of a federal appeal;
·that the appeal is succeeded on a question of law; and
·that this court having heard the appeal
are established.
The matter is a federal matter having been conducted under the provisions of the Family Law Act and regulations made under that Act.
An error of law has been found to be established in the appeal and this is the Court that held the appeal.
Further we are satisfied that the additional precondition for the grant of a certificate prescribed in s 9(1)(b) of the Costs Act, namely “in accordance with s 117 of the Family Law Act 1975 (Cth), each party to the appeal bears his or her own costs” is satisfied as we agree that in the circumstances of this appeal no order would be appropriately made against the respondent and accordingly the appellant would otherwise be left to bear her own costs.
Being satisfied that all the relevant preconditions for the grant of a certificate are established, it is ultimately an exercise of our discretion as to whether to grant a certificate.
The appellant is in modest financial circumstances and is dependent upon government benefits. Although the costs claimed by her are modest, and some of which she may have difficulty establishing, we have no doubt that to her they represent an impost that she should not be required to bear and accordingly we exercise our discretion in favour of the appellant to grant her a certificate pursuant to s 9 of the Costs Act.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Moncrieff JJ) delivered on 11 October 2011.

Associate:

Date: 11 October 2011