AMO25 v Administrative Review Tribunal

(a) being wholly unsuccessful;

(b) refusing to consent to the reasonable Draft Orders, which, it is submitted, were ultimately made by the Court; and

(c) unnecessarily prolonging the proceedings.

1. If an order for costs is made, it would usually be on a party and party basis: r 40.01 and see the definition of "costs" in Schedule 1 of the Federal Court Rules 2011 (Cth) (FCR); Edwards v Nine Network Australia Pty Limited (No 6) [2024] FCA 758 at [5]. Section 43(3)(g) of the FCA and r 40.02(a) specifically allow the ordering of costs on an indemnity basis. Schedule 1 to the FCR defines the following terms:

(a) costs as between party and party means only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation.

(b) costs on an indemnity basis means costs as a complete indemnity against the costs incurred by the party in the proceeding, provided that they do not include any amount shown by the party liable to pay them to have been incurred unreasonably in the interests of the party incurring them.

1. The Applicant's claim for costs does not seek compensation for her own time in the litigation, she seeks what are generally regarded outlays or disbursements and a fee for a direct brief to counsel. The difference between a costs order on an indemnity basis and on a party and party basis usually means that the costs that party has paid to their lawyers will be completely paid, subject to any unreasonable amounts claimed. Whereas costs on a party and party basis are only paid to an amount fairly and reasonably incurred. Usually, a costs order on a party and party basis will not provide a complete indemnity for the legal costs incurred by a party. Where the Applicant is self-represented and only seeks costs for outlays or disbursements, the distinction of the basis for the costs, will not provide much, if any, difference.
2. The Applicant's submissions (at [31]) seeks costs of $3,300 plus the filing fee. The Applicant's second affidavit in support of her application for costs seeks the following costs (being a total of $8,995):

(a) Initiating Application fee $1,695;

(b) Direct Brief to Counsel $3,300;

(c) Interlocutory Application fee $610; and

(d) Setting down fee $3,390.

1. It does appear from the Court file that the Applicant has paid the Initiating Application Fee, however the status of the other fees is not known. The Applicant has annexed a copy of an invoice from the court for the setting down fee, such that this does appear to have been incurred.
2. The Applicant has provided evidence of a tax invoice from a barrister in the amount claimed as a direct brief to counsel. The Applicant has not provided evidence of any costs agreement or direct brief engagement with the barrister (as would be required under Queensland Bar Association Conduct Rules, r 24B, which are made pursuant to s 220 of the Legal Profession Act 2007 (Qld) (LPA)). The Applicant gives evidence that she and the barrister entered into a "Fee Agreement" on 27 February 2025. Further, the Applicant deposes that she was provided a copy of the "Fee Agreement", which is annexed. That document, however, is the tax invoice from the barrister to the Applicant dated 11 March 2025, with a notation that is was "from 27 February 2025" in the Federal Court and that the fees were for "General advice and assistance". The quantum of the fee rendered does not exceed the "detailed disclosure threshold amount", as such, an abbreviated disclosure of costs to clients is all that was required: s 300 and s 307B of the LPA. However, the tax invoice would not satisfy those disclosure requirements, particularly as it was issued after the work is performed. One of the main purposes of Part 3.4 of the LPA is to provide for disclosures to clients regarding legal costs for the protection of consumers of services of the legal profession and the public generally: ss 299(a) and 3(a) of the LPA; Connollys Lawyers Pty Ltd v Davis [2013] QCA 231 at [21]. There are a range of consequences for a failure to disclose: s 316 of the LPA. I hasten to add that I am not making a finding of failing to comply with the LPA. I am considering these matters in relation to what costs order, if any, should be made, on the basis of the evidence before me. The Applicant does not depose to or annex any evidence of having paid this invoice from the barrister, or otherwise annex a document which could be considered a costs agreement.
3. Although the "indemnity principle" in relation to costs is to provide an indemnity of the legal obligation incurred by that party to his or her lawyers, it does not require the costs to have been paid. However, there must be a legal liability to pay those amounts: Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 at [45]- [49], [102], [126] and [168]. Such that the issue, if any, is whether the Applicant has a legal liability to pay the tax invoice to the barrister. A costs agreement may fall foul of the indemnity principal: Frigger, in the matter of Computer Accounting & Tax Pty Ltd (in Liq) (No 2) [2018] FCA 612 at [26]. As the relevant costs agreement is not before the Court, in this matter, it is not possible to undertake that evaluation. However, given the statutory requirements for a written disclosure of costs, the reference to a "Fee Agreement" and the production of a tax invoice by a barrister, I would not assume that such a document does not exist. However, evidence of it should be produced.
4. The Third Respondent seeks to resist any order for costs being made against him. The Third Respondent points to the significant history of court proceedings between the parties and refers to other observations in other proceedings regarding applications for costs. The Third Respondent refers to a proposed consent order dated 24 February 2025, and says he agreed to the terms of that Order. Those were timetabling orders for the substantive hearing of these proceedings. The Third Respondent refers to the Draft Orders and observes that he did not agree to those orders because of the decision of the President of the Tribunal not to refer the matter to the Guidance and Appeals Tribunal. The Third Respondent submits that it would be unfair to financially penalise him for raising and relying on the President's decision. Finally, the Third Respondent submits that his position regarding the school fees and objecting to the initial decision of Child Support was reasonable in all of the circumstances, particularly having regard to the history, quantum involved and his financial position.
5. However, the Third Respondent's financial position is not a sufficient reason of itself to depart from the usual positions as to costs: Northern Territory of Australia v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [35]- [36]; Sayed v National Disability Insurance Agency [2025] FCAFC 40 at [23]; Wilson v State of Victoria (Costs) [2024] FCA 1190 at [33].
6. The Third Respondent's position, seeking that this Court follow or adopt the decision of the President of the Tribunal, in relation to whether the matter should be referred to the Guidance and Appeals Panel, was not unreasonable. Similar, although not the same submissions were advanced to the President as to the legal error in the Decision. The President in balancing all of the relevant factors to decide whether to refer this matter to the Guidance and Appeals Panel, decided not to make the referral. One of the matters considered was the possible legal errors, which were said to be at the low end of the spectrum of possibilities, which on their own were insufficient to warrant a referral. As explained in the First Judgment at [49] in this Court, the Applicant only need establish the legal error advanced. There is no balancing of other factors.
7. However, even if the Applicant's costs (as a self-represented litigant) were to be different on an indemnity basis, I am not satisfied that the conduct of the Third Respondent warrants an indemnity costs order. That a litigant was unsuccessful in the arguments advanced is usually insufficient of itself to amount to some special or unusual feature to depart from the usual position that costs should be on a party and party basis. Furthermore, seeking to rely on the decision of the President was not unreasonable because it was a decision of another Judge, although there were different considerations required.
8. Finally, although the matter may have been dealt with on a final basis on the first return date of 28 February 2025, the Third Respondent agreed to dealing with the matter effectively in a summary way and he provided submissions in a timely way, agreeing to prepare those over a weekend. The summary hearing proceeded on 12 March 2025, which was agreed to by the Third Respondent. This means that the additional time taken was short, it being less than two weeks. Further the Applicant's evidence is that she engaged the barrister on 27 February 2025 and it is not possible to discern from the tax invoice rendered how much of the lump sum fee charged was incurred on or prior to 28 February 2025. Although the Applicant does say that the barrister did provide assistance up to 11 March 2025, so perhaps the fee would have been less. However, it is simply not possible to quantify that position. In these circumstances, the proceedings were not unnecessarily prolonged by the Third Respondent seeking to be heard and develop his submission about the weight and reliance on the decision of the President.
9. As such, there is no special or unusual feature in these proceedings such as to depart from the usual position on costs. On these bases, I decline to orders costs on an indemnity basis.
10. This then leaves whether the Applicant should receive the usual order as to costs. As a self-represented litigant, explained in the authorities referred to above, that can only be for outlays and disbursements. I was not asked to assess the costs or to consider making a lump sum order as to the costs. On the basis of the material which is before me, I would have declined to do so, in any event, because of the uncertainties I have described.
11. The Applicant's application for costs was only made against the Third Respondent who was also self- represented. As a self-represented litigant, that does not, of itself, relieve him from an obligation to pay costs, if they are otherwise justified: Kennedy v Secretary Department of Industry (No 2) [2015] FCA 884 at [12]; Sayed at [23]. It was not explained why the Applicant did not also seek costs as against the Second Respondent (of course, the First Respondent taking the usual and appropriate position of abiding the Order of the Court). At the hearing, when the Applicant identified that she would be seeking costs against the Third Respondent, she said:

AMO25: The third respondent, your Honour, given that the second respondent has conceded and provided the proposed orders.

1. Implicit in this position is that the Applicant is making a concession that she would not seek her costs against the Second Respondent because of the position it took, being an early acceptance and agreement to the Decision being set aside and the proceedings remitted to the Tribunal.
2. The usual position would be for an applicant to seek their costs against all respondents. This would have effectively resulted in each of the Second and Third Respondent paying half of the Applicant's (limited) costs. However, it appears that the Applicant has accepted that because of the quick concession made by the Second Respondent, she will not seek any costs against them. Although that is a more than reasonable approach, it is then unfair to seek all of her costs against the Third Respondent. There is no evidence before me that the Third Respondent was informed or warned that if he took the position of resisting the proposed orders as agreed to by the Second Respondent and the Applicant, then the Applicant would seek the entirety of her costs against him. Furthermore, the Applicant is not simply seeking, for example, any additional costs after 28 February 2025 against the Third Respondent.
3. As such, in all of the circumstances discussed above, the appropriate order for costs is that the Third Respondent should pay half of the Applicant's costs properly incurred, as a self-represented litigant. I have expressly referred to "properly incurred" on the basis of the Applicant's status as a self-represented litigant and the potential uncertainty in relation to some of the costs and disbursements claimed: P v Child Registrar [2012] FCA 1398 at [36]- [37] and Mbuzi v Favell (No 3) [2012] FCA 1078 at [9]- [11].
4. Assessment of the Applicant's costs and disbursements, properly incurred, can be safely left to a Registrar as to what is reasonable in all of the circumstances: Schokker v Commissioner of Taxation [1999] FCA 1311.

1. On consideration of these reasons, it has become apparent that there is an error in the date referred to in Order 2 made on 12 March 2025. That being the operative judgment of the Court. The date of the Tribunal's decision stated in Order 2 is "25 October 2024", that is incorrect. The date of the Tribunal's decision is 11 October 2024. This correct date is referred to in [1] of the First Judgment. The Draft Orders, which became Exhibit 1, referred to the date of the Tribunal's decision as 25 October 2024.
2. This was raised with the parties on the first return date, and the following exchange took place:

HER HONOUR: If I may, Ms Helsdon, is the - I had thought - and perhaps I have this wrong - that the decision of the tribunal was of 20 October. I'm just looking at proposed order 3.

MS HELSDON: Yes, I think there was an issue with the date. I will just confirm.

HER HONOUR: Thank you. So I see from the applicant's originating application, it's referred to as a decision dated 11 October, but published on 20 October. Does that accord with your understanding?

MS HELSDON: I have got a date of the ART decision as 11 October.

HER HONOUR: Yes. All right. Well - - -

MS HELSDON: But was not issued - - -

AMO25: Your Honour, that would have been - - -

MS HELSDON: - - - to the parties until 25 October.

HER HONOUR: Right. Sorry. Yes, Ms AMO25.

AMO25: Sorry.

HER HONOUR: Yes.

AMO25: Sorry. That would have been an error in my documentation, where I have referred to it as being published on the 20th. It was published on 25 October.

HER HONOUR: All right. Just bear with me for a moment. I might just pull it up. If I recall, it's exhibited to your first affidavit?

AMO25: Yes.

HER HONOUR: Yes. Thank you. Yes. All right. Yes, I see that the date of the decision is 11 October. But am I right in saying all the parties agree it was actually issued on 25 October?

MS HELSDON: Yes, from my perspective. Yes.

HER HONOUR: Yes. Thank you.

AMO25: Yes. Thank you.

1. However, despite this exchange, the Orders made still reflected the date the Decision was issued, rather than the actual date of the Decision.
2. The Applicant's originating application referred to the Decision being dated 11 October 2024, published on 20 October 2024. The Draft Orders referred to the Decisions in Order 3 and in the accompanying notation as being dated 25 October 2024. There is clearly an accidental error in the Orders of 12 March 2025, by reference to the date of the Tribunal Decision.
3. Rule 39.05 of the FCR provides as follows:

Varying or setting aside judgment or order after it has been entered

The Court may vary or set aside a judgment or order after it has been entered if:

(a) it was made in the absence of a party; or

(b) it was obtained by fraud; or

(c) it is interlocutory; or

(d) it is an injunction or for the appointment of a receiver; or

(e) it does not reflect the intention of the Court; or

(f) the party in whose favour it was made consents; or

(g) there is a clerical mistake in a judgment or order; or

(h) there is an error arising in a judgment or order from an accidental slip or omission.

Subsections (g) and (h) incorporate what has traditionally been thought of as the "slip rule": Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd (No 2) (2012) 209 FCR 123; [2012] FCA 1404 at [4]; Australian Competition and Consumer Commission v BlueScope Steel Limited (No 7) [2023] FCA 1140 at [4].

1. The Full Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Registered Organisations Commissioner (No 2) [2021] FCAFC 56 at [12] described r 39.05 as follows:

Rule 39.05 of the Federal Court Rules allows the Court to vary or set aside a judgment or order after it has been entered if, relevantly, the judgment or order does not reflect the intention of the Court, or there is an error arising in a judgment or order from an accidental slip or omission. A "judgment" is defined in s 4 of the Federal Court of Australia Act 1976 (Cth), relevantly, as a "judgment, decree or order". A "judgment" is a formal order by which the court disposes of the matter before it, and reasons for judgment are not themselves a "judgment": see, for example, the judgments of the Full Court in Ah Toy v Registrar of Companies [1985] FCA 291; (1985) 10 FCR 280 at 285-286; Australian Telecommunications Commission v Colpitts [1986] FCA 257; (1986) 12 FCR 395 at 399; Arrowcrest Group Pty Ltd v Gill [1993] FCA 541; (1993) 46 FCR 90 at 99; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 at 378; Australian Securities & Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183 at [35]; and Harmer v Oracle Corporation Australia Pty Limited [2013] FCAFC 63; (2013) 299 ALR 236 at [21]- [22] and [33]; Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145; (2013) 216 FCR 197 at [46]; Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 at [49] and [309]; Letten v Templeton [2014] FCAFC 131 at [17]...

1. The slip rule applies in circumstances where the proposed correction to a judgment or order is one in which no real difference of opinion can exist. The operation of the slip rule reflects the authority of a superior court of record at any time to correct an error in an order arising from an accidental omission or slip: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385; [1995] FCA 943 at 389-391. It was described by Gordon J (then of this Court) in Tropicana Limited v Australasia Corporate Services Pty Ltd [2011] FCA 684 at [16], as follows:

The slip rule reflects the authority of superior courts at any time to correct an error in a decree or order arising from a slip or accidental omission and may be invoked irrespective of whether the order has been drawn up, passed and entered. It permits the correction of an error where it is either a unilateral or mutual error or inadvertence by the parties' representatives, or an error of the Court. Importantly, it operates nunc pro tunc to correct the earlier order, and speaks from the date of the earlier order, which then operates with full force as corrected: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [1995] FCA 943; (1995) 61 FCR 385 at 389 to 391 and the authorities there cited. The rule is very wide in its scope but it is not available as a matter of course: Elyard at 390. As the High Court said in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 at 597, there is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made. It is important to remember that the rule exists to avoid injustice: Elyard at 391-392. The rule does not apply where the amendment is a matter of controversy. It can apply where the proposed amendment is one upon which no real difference of opinion can exist: Elyard at 390-391. Finally, it is in the Court's discretion to exercise its powers under the slip rule to correct an accidental error or omission and the Court may do so on its own motion: Shaddock at 597.

1. None of the parties have raised this issue with the Court. However, the Court may act on its own motion, as observed by Gordon J.
2. The front page of the Tribunal's decision records the date of its decision as 11 October 2024. There can be no real difference of opinion that can exist about the date of the Tribunal's decision. It appears where the variation arises is the date that the Tribunal provided is reasons for decision, be it either on 20 or 25 October. However, it was providing its Decision dated 11 October 2024.
3. The parties have not had the opportunity to be heard and they should be afforded such an opportunity, before the correction takes place. As such the Orders will be:
   1. The Third Respondent pay half of the Applicant's costs (as a self-represented litigant) to be taxed if not agreed.
   2. If no party makes any submission to the contrary within 7 days of the date of this Order, then pursuant to r 39.05 of the Federal Court Rules 2011 (Cth), Order 2 of the Orders of the Court made on 12 March 2025 be varied to substitute the date "25 October 2024" for the date "11 October 2024".

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheatley.