1. Cachia v Hanes

High Court of Australia|1997-09-09|Before: Callinan JJ, Faulks J, Gaudron J, Hayne J, Dawson JJ, Deane J, Mason CJ, Gummow J, Callinan J

The application of this principle together with the proposition stated by this court in Knight's Case [128] provide ample means for a court, such as the Family Court, to act against abuse of its processes and to award costs against a non-party in an appropriate case.

That is enough to dispose of the application and to require that the order nisi be made absolute on the first ground.

It is therefore not necessary to deal finally with an argument that the order was so defective in form that it could not stand for that reason alone. The order is expressed as having been made in exercise of power conferred by s 117 of the Family Law Act. There was no stated reliance upon s 68L. To the extent that the latter provision might have been prayed in aid, it may, without deciding the point, be taken that that aid would not be denied by failure to specify s 68L in the order [129] . Upon application for prerogative relief under s 75(v) of the Constitution, the question would be whether the powers conferred by the Family Law Act under which the order was made are to be read as "requiring certainty of expression as a condition of [their] valid exercise" so that "in the end, the question comes back to ultra vires". The words are those of Dixon J in, respectively, Cann's Pty Ltd v The Commonwealth [130] and King Gee Clothing Co Pty Ltd v The Commonwealth [131] .

cf Brown v West (1990) 169 CLR 195 at 203 2. (1946) 71 CLR 210 at 227. 3. (1945) 71 CLR 184 at 196. See also Aronson and Dyer, Judicial Review of Administrative Action (1996), pp 358-361.

Fletcher Moulton LJ, in Gundry v Sainsbury [132] emphasised the nature of an award of party and party costs as an indemnity:

The principle that party and party costs are only an indemnity - an imperfect indemnity, it is true, but never more than an indemnity - is deeply rooted in our law. 1. [1910] 1 KB 645 at 651.

The order of the Family Court here does not have the character of an indemnity in the sense stated by Fletcher Moulton LJ nor does it answer the description of an order for security for costs, which, as I have indicated earlier in these reasons, may aptly be described as an order specifying the amount and the means by which it is to be provided, to protect a party to litigation (usually but not always a plaintiff) against the costs which that party might incur.

Any order of a court should be precise. A party against whom it is made is entitled to know exactly what obligations it imposes. This order lacks that precision.

The order creates other problems with respect to its performance. It makes no provision for the receipt and holding of the sum ordered to be paid. The word "facilitate" as used in the order is an inappropriate expression for the imposition of an obligation. All of these matters would probably be sufficient to warrant the quashing of the order of the Family Court, but it is unnecessary to reach any final view on this aspect.

Accordingly I would order that the order nisi for certiorari should be made absolute, order 3 of Faulks J of the Family Court of 9 September 1997 be quashed and the order for prohibition be discharged.

High Court of Australia Gaudron, Gummow, Kirby, Hayne and Callinan JJ Re JJT; Ex parte Victoria Legal Aid (M74/1997) [1998] HCA 44

[1986] AC 965. See also Oshlack v Richmond River Council (1998) 193 CLR 72 at 87 2. Aiden Shipping [1986] AC 965 at 979. 3. cf Corporations Law, s 1335(2) which limits an award of costs in proceedings before a court under the Law so that it is "borne by such party to the proceedings as the court, in its discretion, directs".

" 91b Intervention by Child Welfare Officer (1) In any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare. (2) Where the court has, under subsection (1), requested an officer to intervene in proceedings: (a) the officer may intervene in those proceedings; and (b) where the officer so intervenes, the officer shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party." 2. "92 Intervention by Other Persons (1) In proceedings other than proceedings for principal relief, any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings. (1a) In proceedings for principal relief, a person in relation to whom an order has been made under subsection 69W(1) requiring a parentage testing procedure (within the meaning of Part VII) to be carried out may apply for leave to intervene in the proceedings, and the court may make an order entitling the person to intervene in the proceedings. (2) An order under this section may be made upon such conditions as the court considers appropriate. (3) Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party." 3. Hyman v Rose [1912] AC 623 at 631, per Lord Loreburn LC; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283-284, per Wilson J; at 290, per Gaudron J; Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313, per Brennan CJ, Gaudron and McHugh JJ; at 316, per Toohey and Gummow JJ; Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 136-137, per Gaudron J. 4. Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205, per Gaudron J.

[A] court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process. 1. (1992) 174 CLR 509 at 518. 2. [1964] AC 1254 at 1301.

(1989) 13 Fam LR 205

(1996) 20 Fam LR 766

(1997) 22 Fam LR 112

(1994) 18 Fam LR 265

(1990) 14 Fam LR 397

(1992) 15 Fam LR 662

(1992) 16 Fam LR 458

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