Cosenza v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

REASONS FOR JUDGMENT 1 On 18 December 2009 Finn J handed down reasons for dismissing the applicant's proceeding which sought to set aside orders made by the respondent relating to his entitlement to a Carer Payment. At the same time as his Honour published those reasons he made an order that the application be dismissed with costs. His Honour described the matter as having a tortured history and recounted that history. 2 On 27 May 2010 the respondent lodged a bill of costs pursuant to O 62 r 12 of the Federal Court Rules seeking costs in the sum of $25,585.69. The bill was accompanied by an affidavit of Michael Ryan Dwyer, solicitor for the respondent, who deposed that the bill of costs had been sent to the applicant. Following upon the lodgement of the bill of costs on 27 May 2010, the Registrar made an estimate of the costs. She estimated the costs on a taxation would be $14,952.43. On 29 July 2010 Mr Dwyer filed an affidavit in which he deposed that the bill had been sent to the applicant on 28 May 2010 and that he had received a letter from the Deputy District Registrar estimating the costs in the sum of $14,952.43. 3 Because no objection to the estimate was made by either party, Mr Dwyer sought an order that a certificate of taxation issue in the amount of the estimate of $14,952.43. On 29 July 2010 a certificate issued. On 18 November 2010, because the costs remained unpaid, Mr Dwyer again approached the Court and this time sought to have the Registrar enter an enforcement order under O 62 r 45(3) of the Federal Court Rules. That rule provides that if, after 14 days from the date of service of the certificate of taxation, the costs remain unpaid the Registrar shall, at the request of the party in whose favour the costs were awarded, draw up, sign and seal an order in favour of that party for the sum shown in the certificate of taxation and enter the same. 4 Mr Dwyer deposed to having served the sealed certificate of taxation on the applicant by sending a letter, together with that certificate of taxation, to the applicant on 6 September 2010. On 19 November 2010 the order sought by Mr Dwyer issued and an order was made that the applicant pay the respondent the sum of $14,952.43. The effect of that order is to enter a judgment against the applicant in that sum which judgment is payable upon entry of the order. 5 On 13 January 2011 the applicant filed a notice of motion seeking the following orders: 1. To apply for an extension of time of Order 46 Rule 7B. 2. To have the enforcement order made on 19 November be set aside. 3. The applicant seeks a review of the Registrar's decision to issue the order, pursuant to Order 46 Rule 7B of the Federal Court Rules. 4. The applicant seeks a review of taxation, pursuant to Order 62 Rule 11 of the Federal Court Rules. 6 In my opinion, with respect to the applicant, who is unrepresented, the application is misconceived. The order which was entered on 19 November 2010 was entered as an administrative act by the Registrar under O 62 r 45(3). It did not entail the exercise of a judicial power and is therefore not subject to review under s 35A of the Federal Court of Australia Act 1976 (Cth) or to O 46 r 7B. For that reason alone, the application must be dismissed. 7 However, there are other reasons why, in my opinion, the application is misconceived. The notice of motion was accompanied by an affidavit of the applicant in which the applicant complained of the respondent's conduct in the proceeding. He wishes, effectively, to have the Court inquire into the respondent's conduct in the assessment of the costs which would be payable by him in the proceeding. 8 The difficulty is, as I explained to the applicant on this hearing, the order made by Finn J is uncomplicated and general in terms. It means that the applicant must pay the costs of the proceeding. The applicant is entitled to insist, of course, that the respondent's costs be restricted to party and party costs. However, on a taxation, if there were to be a further taxation, he would not be entitled to go behind the general order for costs. 9 If he challenges the correctness of making an order that he pay the costs of the proceeding, for whatever reason, he must, as I explained to him, apply to set aside the order made by Finn J. I told him in explaining what courses were available to him that an application of that kind would be difficult to maintain and difficult to succeed upon, having regard to the time which has passed since his Honour made his decision and entered the order for costs, and having regard to the costs which have been incurred since that time. 10 The applicant says he has not been served with a number of documents, although there is evidence to the contrary that each of the documents were sent to him and there is no evidence that any of the documents were ever returned. Putting that aside, it seems to me that the applicant would have serious difficulty in applying to set aside Finn J's order so long after the order was made. The applicant has sought in his notice of motion to have a review of the taxation pursuant to O 62 r 11. That application also cannot be granted whilst the enforcement order made under O 62 r 45(3) continues to apply. 11 In my opinion, the applicant is not entitled to any relief in relation to the matters which have occurred since the order was made by Finn J until such time as the order made by Finn J is set aside. The notice of motion is dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.