De L v Director-General, Department of Community Services

High Court of Australia|1997-04-09|Before: Brennan CJ, Kirby JJ, Dawson J

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ De L v Director-General, Department of Community Services (NSW) [1997] HCA 14

The respondent's costs to be paid by the Attorney-General.

In allowing the appeal by Mrs De L against the Director-General on 10 October 1996, this Court made an order that the Director-General pay Mrs De L's costs. [1] The Director-General was a State Central Authority who had instituted proceedings in the Family Court of Australia against Mrs De L for an order for the return to Virginia in the United States of the two children of her marriage to Mr De L. Those proceedings were instituted under the Family Law (Child Abduction Convention) Regulations (Cth). The Regulations were made in exercise of the power conferred by s 111B(1) of the Family Law Act 1975 Cth. The Director-General's application was dismissed at first instance but an appeal to the Full Court of the Family Court succeeded. [2] Special leave to appeal to this Court was granted and the Director-General appeared to support the orders made in the Full Court.

De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640. 2. Director-General, Department of Community Services v De L [1996] FLC ¶92-674.

After the order of this Court was pronounced but before it was formally drawn up, the Director-General filed a notice of motion seeking an order vacating the costs order made against him. He relied on reg 7 which provides:

A person who holds office as the Commonwealth Central Authority, who is appointed to act as that Authority or who, being a State Central Authority, exercises the powers and performs the functions of that office shall not be made subject to any order to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority. If, on its true construction, reg 7 denies this Court the power to make an order and if, so construed, reg 7 is within the regulation-making power conferred by s 111B(1), it would be necessary to revoke the costs order against the Director-General. [3] 1. State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29; Gould v Vaggelas (1985) 157 CLR 215.

It is an essential function of the State Central Authorities to apply for orders "to secure the prompt return of children wrongfully removed to or retained in" Australia (to adopt the terms of Art 1(a) of the Convention on the Civil Aspects of International Child Abduction (the Convention)), to prosecute such an application and, if successful, to defend any order made to achieve that end. The risk of a liability for costs in the event of non-success is an inhibition against performance of that function, but the conferring of an immunity from that liability removes the inhibition and is conducive to the assiduous performance of the State Central Authority's function. The power to make regulations to implement the Convention is conferred by s 111B(1) of the Family Law Act [4] :

The regulations may make such provision as is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the " Convention ") but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia. The Family Law Act contains no detailed provisions giving effect to the Convention. The implementing of that Convention is left to be prescribed by regulation. The scope of powers conferred in terms such as the power conferred by s 111B(1) was indicated by this Court in Morton v Union Steamship Co of New Zealand Ltd [5] : A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned. Regulation 7 can reasonably be regarded as "necessary to enable the performance of the obligations of Australia" under the Convention and to provide for the more effective administration of the Convention. In our opinion, the provisions of reg 7 prima facie satisfy the requirements of a regulation which might be made under s 111B(1). 1. A general regulation-making power is conferred on the Governor-General by s 125 of the Act but s 111B(1) is the sole source of the Governor-General's authority to make regulations to implement the Convention. 2. (1951) 83 CLR 402 at 410.

If it were not for s 26 of the Judiciary Act 1903 Cth reg 7 would preclude the making by this Court of an order for costs against the Director-General in proceedings in which the Director-General appears either as appellant to appeal against a refusal of an order for the return of children to a Convention State or to support such an order made by the Family Court. But s 26 of the Judiciary Act confers on this Court a power to order costs against any party to proceedings before it. It reads as follows:

The High Court and every Justice thereof sitting in Chambers shall have jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction. The power conferred by this section is not subject to any limitation, albeit the discretion must be exercised judicially. [6] The power is not expressed to be subject to other Acts of the Parliament [7] or to regulations made under other Acts. In so far as reg 7 purports to confine the discretion conferred by s 26 to preclude the making of an order for costs against a State Central Authority which is a party in proceedings before the Court, it is inconsistent with s 26. [8] Does reg 7 operate to amend s 26 by confining the discretion which the section confers or does s 26 require that reg 7 be read down (and thereby avoid invalidity) so that it does not apply to proceedings before this Court? The answer depends upon the intention to be ascribed to the Parliament by reference to the provisions of s 26 of the Judiciary Act and to s 111B(1) of the Family Law Act. 1. See Wentworth v Attorney-General (NSW) (1984) 154 CLR 518 at 527-528; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 202-203, 205. 2. In contradistinction to s 51 of the Supreme Court Act 1981 UK which confers a discretionary power to order costs "[s]ubject to the provisions of this or any other enactment and to rules of court". 3. Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 184-185.

Assuming that it would be constitutionally possible for the Parliament to authorise the making of a regulation that would amend or repeal a provision of an earlier Act of the Parliament [9] , it would require express words to convey an intention that a general power to make regulations for a stated purpose authorised the repository to repeal or amend the Parliament's own enactments. Section 111B(1) does not purport to authorise the making of a regulation having such an effect. We would construe s 111B(1) as conferring a power to make regulations which are not inconsistent with any Act of the Parliament in force at the time when the regulations are made. Acts enacted subsequent to the making of the regulations and inconsistent with them would repeal them to the extent of the inconsistency.

As Hale J suggests in Hotel Esplanade Pty Ltd v City of Perth [1964] WAR 51 at 54 that the Western Australian Parliament could do.

Construing s 111B(1) in this way, reg 7 cannot confine the general discretion conferred on this Court by s 26 of the Judiciary Act. [10] This being so, there is no compelling reason why the order made against the Director-General should be revoked. Although reg 7 might have been taken into account as indicative of the regulation-making authority's opinion as to the desirable course to be taken by a court in considering an order for costs, that was not a factor on which the Director-General relied or to which he drew the Court's attention before the order against him was made. That factor apart, the Court was of the opinion that the merits of the case warranted the making of an order for costs against him. There is no reason why, the purport of reg 7 now being drawn to our attention belatedly, the order already made should be revoked.

Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 184-185, 202-203, 205.

On 10 October 1996 this Court disposed of proceedings, on appeal from the Family Court of Australia, between the Director-General of the New South Wales Department of Community Services (the Director-General) and Mrs De L. [11] In doing so, the Court allowed Mrs De L's appeal, set aside orders of the Full Court of the Family Court and remitted the matter to be reheard by a single judge of that Court in accordance with the judgment of this Court. It ordered the Director-General, as the first respondent to the appeal, to pay Mrs De L's costs of the appeal. [12]

De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640. 2. De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 690.

The second respondent to the appeal was Mr De L, the estranged husband of Mrs De L and the father of the children whose abduction from the United States of America had occasioned the proceedings. By those proceedings, the Director-General sought the return of the children to the United States. Mr De L took no substantive part in the proceedings in this Court. He submitted to the orders of the Court save as to costs. [13]

De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 664-665.

In the foregoing circumstances, the Court's orders, disposing of the costs and requiring the Director-General to pay Mrs De L's costs of the appeal were unremarkable. The Director-General had contested the interpretation of the applicable law, advanced by Mrs De L. In this, he supported the submissions made to the Court by the Solicitor-General on behalf of the Attorney-General for the Commonwealth, intervening.

By notice of motion lodged within a week of the making of the Court's orders, the Director-General moved the Court to vacate the order as to costs. In essence, he submitted that the order had been made without due regard to the provisions of reg 7 of the Family Law (Child Abduction Convention) Regulations Cth (the Regulations). That regulation reads:

Immunity of Commonwealth Central Authority, &c, in respect of orders to pay costs

A person who holds office as the Commonwealth Central Authority, who is appointed to act as that Authority or who, being a State Central Authority, exercises the powers and performs the functions of that office shall not be made subject to any order to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority.

It was submitted that the order for costs made by this Court accidentally failed to have regard to reg 7. Alternatively, it was put that the exercise by the Court of its discretion to order costs was made without regard to reg 7, a relevant consideration.

The Director-General's motion was supported by the Attorney-General, who once again intervened. As a palliative, it was suggested that the proper course, open to the Court, was to grant Mrs De L a costs certificate in respect of the appeal pursuant to the Federal Proceedings (Costs) Act 1981 Cth (s 9(1)). The Court was told that the Attorney-General, who administers that Act, supported the making of such an order. Questions arise as to the applicability of that Act, the amount recoverable under such a certificate and whether it would apply to various interlocutory applications, including the application made in this case for a stay pending the outcome of the appeal [14] and the special leave application. The Court was told by the Solicitor-General that Mrs De L had enjoyed certain support by way of legal aid for the proceedings in this Court. That fact is irrelevant to the issues of law and of discretion which have to be decided.

De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640.

Mrs De L resisted the reopening of the Court's orders. She relied upon her application for costs at the hearing of the appeal and the failure of the Director-General (or the Attorney-General) to raise the point now belatedly pressed. It was also submitted on Mrs De L's behalf that the regulation was inapplicable or alternatively that it was invalid to the extent that it purported to cut down the general power of this Court to dispose of the costs of an appeal before it as the merits required.

The following issues arise for decision on the motion:

Whether the Court is empowered to, and should, reopen the proceedings to consider the vacation of its order disposing of the costs of the appeal. ("The reopening issue".)

Whether the regulation, upon its true construction, purports to provide an immunity to the Director-General, in his capacity as the State Central Authority, from an order for costs such as was made by the Court. ("The construction issue".)

Whether, if the proceedings should be reopened, the regulation falls within the applicable regulation-making power and operates to limit or control the exercise by this Court of the discretion conferred upon it by s 26 of the Judiciary Act 1903 Cth. ("The validity and operation issue".)

If the regulation is valid and applies, whether the Court should disturb its earlier orders, recommit the exercise of the costs discretion and make new orders as to costs. ("The discretionary issue".)

The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded "on a misapprehension as to the facts or the law", [15] where "there is some matter calling for review" [16] or where "the interests of justice so require". [17] It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required "without fault on his part", [18] ie without the attribution of neglect or default to the party seeking reopening. [19] By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case. [20]

Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302. 2. Smith v NSW Bar Association (1992) 176 CLR 256 at 265. 3. Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 322. 4. Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; cf State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45-46; Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 168. 5. Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 303. 6. Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302; Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 at 394-395; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28-29.

The Director-General, who is now seeking this exceptional relief, made no reference to reg 7 in his written submissions to the Court. Nor did the Attorney-General for the Commonwealth, intervening. On the other hand, in her submissions, Mrs De L referred expressly to reg 7 in the course of arguing that provision should be made for her costs. The submission reads:

If upon its proper construction regulation 7 of the Family Law (Child Abduction Convention) Regulations precludes the making of an order for costs against the First Respondent (both personally and as "an office" distinct from the person who holds the office of the Central Authority), each of the Wife and the Husband should nevertheless be protected by orders under the Federal Proceedings (Costs) Act 1981 from hardship arising from exposure to proceedings in the Court Below and the High Court In this way only, and that elliptically, was an allusion made to reg 7. No written or oral response to Mrs De L's submission, mentioning reg 7, was elicited either from the Director-General or from the Attorney-General. In oral argument, the question of costs was raised specifically with counsel for Mrs De L but neither with counsel for the Director-General nor with the Solicitor-General representing the Attorney-General. It was accepted by the Solicitor-General in these proceedings that the Court had not, during the hearing, received the assistance from him or from counsel for the Director-General on the significance of reg 7 which the point merited.

In such circumstances, Mrs De L opposed the reopening sought by the Director-General. She suggested that the source of the problem which had arisen lay in the failure of those representing the Director-General to make any submissions, written or oral, on the point of costs and was compounded by the failure of the Attorney-General, in otherwise detailed written submissions, to respond to the written submission for Mrs De L in which mention of reg 7 had been made and costs sought. There is force in this submission, particularly as the Director-General, as the State Central Authority, could be taken to have been aware of the practice of the Family Court to observe reg 7 in proceedings before it involving him. [21]

See, eg, Ottens v Ottens (unreported; 21 December 1988; Family Court (Frederico J)); Paterson v Casse (unreported; 27 March 1996; Family Court (Kay J)).

Nevertheless, for a number of reasons, we believe that this is a proper case in which to permit reopening. An important consideration is that the orders of this Court, although publicly announced, were not perfected. That is, the formal entry of the orders in the Court's records was not made before the present motion was filed. As a result of the motion, the Registrar of the Court, of his own initiative, has delayed the entry of the orders pending the outcome of these proceedings. Courts have always treated differently applications to reopen final orders which, although pronounced publicly, have not been finally entered in the Court's records. Different considerations arise when this latter step has been taken. [22]

State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 308, 317; University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 482-483; 60 ALR 68 at 70.

The oversight of reg 7 occurred by accident. The focus of submissions was, naturally enough, upon the substance of the contest, in which there were several points of difficulty. The Court did not address specific questions on costs either to counsel for the Director-General or counsel for the Attorney-General, intervening. Even assuming that the general costs discretion applied, it has been exercised without regard to the possible application of reg 7 and the purposes for which the regulation was made. For economy and efficiency, the Director-General, sensibly enough, left most of the argument of the appeal to the Solicitor-General, appearing for the Attorney-General. The application to vacate the costs order was made promptly. No relevant disadvantage could be shown by Mrs De L save for the costs of the motion. The Court was informed that those costs would, in the circumstances, be borne by the Commonwealth. The point raised is one of importance for the meaning and application of a federal law. It is also potentially one of general application. It is desirable that the position of the parties and of the law should be clarified.

Save, therefore, for the question of the utility of reopening the Court's orders, now to be addressed, and any relevant residual matters of discretion affecting the provision of relief, we would favour, in the particular circumstances of this case, reopening the costs order to safeguard against the risk of injustice that could flow from the unconsidered making of an order on its face apparently contrary to the requirements of reg 7. [23]

Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 303.

It was next put that the regulation did not, in its terms, purport to forbid the making of the order which the Court made. Put shortly, the submission was that reg 7 was concerned with the protection of the Director-General personally and not in his capacity as the State Central Authority. [24] This argument was advanced on the footing that the regulation is expressed to protect "[a] person who holds office" as distinct from the office itself. The point was foreshadowed, in an obscure way, in the short passage in the submissions for Mrs De L quoted above. No assistance could be derived from experience in other countries which are parties to the Convention on the Civil Aspects of International Child Abduction (the Convention). [25] The Court was informed that Australia is the only Convention country with such a provision.

cf Hanbury-Brown and Hanbury-Brown; Director General of Community Services [1996] FLC ¶ 92-671 at 82,977. 2. The Convention is Sch 1 to the Regulations.

There is no merit in the argument. The purpose of reg 7 is clear enough. It is reinforced by the heading to the regulation. It is to provide immunity to the Central Authority. Like the Crown in its traditional role in criminal proceedings, the Central Authority would neither seek nor pay costs. [26] Presumably, this was out of recognition of the high public purpose which the Central Authority performed in executing the functions envisaged by the Convention and effected by the Regulations. [27]

Latoudis v Casey (1990) 170 CLR 534 at 538, 557. 2. s 111B(1) of the Family Law Act 1975 Cth.

There would be no point in affording immunity to the Director-General as a person or as an individual, as distinct from in the Director-General's capacity as the State Central Authority performing the functions envisaged for that Authority under the regulations. If reg 7 were to be confined, in its construction, to such a narrow ambit, it would entirely miss the target of its obvious (and stated) purpose. The regulation should not be so narrowly construed when it can be given a meaning, consistent with its language, which effects its purpose of providing immunity to the office holder, represented in this case by the Director-General.

On the face of things, therefore, the regulation applies.

For Mrs De L there were then two attacks on reg 7. The first was that it fell outside the regulation-making power contained in the Family Law Act 1975 Cth. That power is expressed in the following terms:

111b(1) The regulations may make such provision as is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the " Convention ") but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia. The constitutional validity of s 111B(1) was not contested in the previous proceedings. It has been upheld by the Full Court of the Family Court [28] in a decision in relation to which special leave to appeal to this Court was refused. In the earlier proceedings in this matter, this Court drew attention to the width of the language of s 111B(1). It is expressed not simply to provide for the operation of the Convention in Australia. It is expressed, more widely, to make necessary provision for the performance of Australia's obligations and to obtain for Australia any advantage or benefit under the Convention. [29] These provisions confer a wide latitude upon the Executive Government in making the Regulations. They recognise the fact that the Convention is addressed to governments throughout the world, necessarily with differing legal and administrative systems. It will be implemented in different ways: sometimes through judicial process and sometimes through administrative procedures. [30] Furthermore, the Convention is intended to apply in countries with differing constitutional arrangements, for example, in unitary states as well as federations. In some federations, it may be envisaged that child custody matters will not be the responsibility of the federal authorities. Perhaps, unsurprisingly, the Convention itself does not make detailed provision in respect of costs, and there are no provisions which limit the recovery of costs from the State Central Authority. The only provision as to costs in the Convention is expressed in terms which forbid the recovery of costs by the State Central Authority. Article 26 provides, relevantly: Each Central Authority shall bear its own costs in applying this Convention.

Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.

By making no provision for the recovery of costs from the State Central Authority, it may be assumed that the Convention was content to leave that matter to be resolved according to the legal provisions of each state party, where it would have been known that such provisions differ greatly. 1. McCall and State Central Authority (1994) 18 Fam LR 307 at 319. 2. De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 650-651, 679-680. 3. Article 7(f) of the Convention obliges Central Authorities to take all appropriate measures "to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child ".

In Australia, in order to give prompt effect to the speedy operation of the Convention, which is a clear feature of its language and purpose, [31] and to recognise the close involvement of State and Territory authorities in child welfare proceedings, the Regulations provide for the appointment by the Attorney-General for the Commonwealth of persons "to be the Central Authority of a State or Territory" for the purposes of the Regulations (reg 8(1)). The Regulations also empower the appointment of a person "from time to time holding, occupying or performing the duties of a specified office or position of a State or Territory" (reg 8(2)). Subject to the instrument of appointment, a State Central Authority has, under the Regulations "all the duties, may exercise all the powers, and may perform all the functions, of the Commonwealth Central Authority" (reg 9).

De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 654-655, 668-669, 689-690.

The provision for immunity, relevantly, of a State Central Authority exercising the powers and performing the functions envisaged by the Regulations, arguably derives from more than the history and the traditional role of the state, as the successor to the parens patriae responsibilities of the Crown. Within a federation, the involvement of State and Territory office-holders would presumably entail costs and administrative as well as legal expenses. The provision of immunity may have been the price of obtaining the advantage of the participation of State and Territory officers in the scheme, entailing the use of their experience as well as their availability, where necessary, to act in all parts of Australia, promptly as the Convention envisaged.

For these reasons, we would reject the argument that the provision of the immunity to the Director-General is outside the scope of the power afforded by s 111B(1) of the Family Law Act. We would not be prepared to hold that the provision for immunity was not "necessary to enable the performance of the obligations of Australia" or to "obtain for Australia any advantage or benefit" under the Convention. A wide latitude must be permitted to the Executive Government under words of such generality. [32] This is especially so where, as here, the purpose of the regulation-making power was to introduce, in a federal constitutional setting, Convention requirements expressed to operate globally and therefore, necessarily, in countries with quite different constitutional arrangements and administrative traditions.

De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 650-651, 679-680; cf State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 at 452.

The second challenge to reg 7 has more substance. It raises the question whether that regulation operates to derogate from the power given to this Court by the Parliament to provide for the costs of proceedings before the Court. Relevantly, the power afforded to this Court is found in s 26 of the Judiciary Act 1903 Cth which reads:

The High Court and every Justice thereof sitting in Chambers shall have jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction. The question is whether reg 7 is, in effect, a purported partial repeal of s 26. Regulation 7 is not, in terms, expressed as a control, or limitation, upon the powers of courts or tribunals. But as courts and tribunals are the only bodies which ordinarily have the power to make orders for the payment of costs, the effect of reg 7 is to limit or control their powers. In the case of the Family Court of Australia, the regulation accommodates itself quite comfortably to the provisions of s 117 of the Family Law Act. That section establishes the primary rule that, subject to specified exceptions, to one of which reference will later be made, each party to proceedings under the Act bears his or her own costs (s 117(1)). This is not the general rule observed in this Court, enjoying as it does the power conferred by s 26 of the Judiciary Act.

The power to provide costs is an important one designed to ensure that a court may protect a successful party against the substantial burden of costs which could otherwise render its success nugatory. The crushing burden of costs might be a disincentive to parties prosecuting just and lawful arguments in this Court. Furthermore, there are special reasons in this Court why the operation of s 26 of the Judiciary Act should not be narrowed. Those reasons include the function of the Court in expounding points of general principle which have application to many parties beyond those immediately involved in the litigation. Because proceedings, such as the instant appeal, must run the gauntlet of special leave requirements and the possibility of the participation of the Commonwealth, the States and other interveners, which may substantially enlarge the hearing, it can be assumed that, by the time such proceedings reach this Court on appeal, they typically involve points of law of general application and often national importance. So it certainly was in the appeal of Mrs De L. Her case involved the elucidation of the operation of the Family Law (Child Abduction Convention) Regulations. In such circumstances, it could occasion a serious injustice to a party such as Mrs De L to deprive her of the ordinary benefit of success in the appeal to this Court, viz an order for costs in her favour. It would seem extremely unlikely that the Director-General, who resisted Mrs De L's appeal, would himself have to bear the costs of elucidating the points of principle of general application. Accordingly, the merits are entirely in favour of maintaining the order which was made.

But does reg 7 forbid such an order? On its face, it applies only to "costs in relation to exercising the powers, or performing the functions, of the Commonwealth Central Authority". That expression may be contrasted with the more general specification in s 117(1) of the Family Law Act that "each party to proceedings under [that] Act shall bear his or her own costs". The more narrow prescription in reg 7 directs attention to the powers and functions of the Commonwealth Central Authority which are specified in reg 5(1) as follows:

(a) to do, or co-ordinate the doing of, anything that is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention; and

(b) to advise the Attorney-General, either on the initiative of the Commonwealth Central Authority or on a request made to that Authority by the Attorney-General, on all matters that concern, or arise out of performing, those obligations, including any need for additional legislation required for performing those obligations; and

(c) to do everything that is necessary or appropriate to give effect to the Convention in relation to the welfare of a child on the return of the child to Australia.

For practical purposes, it is only the performance of the duty or the exercise of the function set out in reg 5(1)(c) which could give rise to an order for costs, and then only in respect of applications under the Regulations.

It is to be noted that reg 5(1)(c) is necessarily to be read as requiring the Central Authority to do everything which is authorised or required by the Regulations and which is, also, "necessary or appropriate to give effect to the Convention". From that construction, two matters relevant to the operation and effect of reg 7 emerge. First, reg 7 cannot immunise either the Commonwealth Central Authority or a State Central Authority with respect to costs in proceedings in which they assert powers or functions outside the scope of the Regulations. The second is that, even if the Regulations extend beyond what is required by the Convention, immunity only extends to that which is "necessary or appropriate to give effect to the Convention".

It follows, in our view, that reg 7 does not provide immunity against costs with respect to proceedings or, perhaps, more accurately, that aspect of proceedings in which either the Commonwealth Central Authority or a State Central Authority asserts a meaning or operation of the Regulations which their terms do not bear or which is neither necessary nor appropriate to give effect to the Convention.

It is inconceivable that a matter could come to this Court with respect to the Regulations which did not involve a question as to their meaning or operation, whether because that is the matter in issue or because their meaning and operation must be determined as a preliminary to determining their validity. Given that and given the restricted nature of the immunity conferred by reg 7, it is, in our view, impossible to treat reg 7 as manifesting an intention to derogate from the broad power to award costs conferred on this Court by s 26 of the Judiciary Act. That is not to say that reg 7 is not a relevant consideration in the exercise of the Court's power under s 26. It is enough to say that, in the circumstances of this case, the regulation is not a compelling reason against the order for costs which the Court made.

In argument, the Solicitor-General and counsel for the Director-General also placed some reliance on s 117 of the Family Law Act which, as already noted, provides, subject to exception, that each party should bear its own costs (s 117(1)). One exception is if "the court is of opinion that there are circumstances that justify" the making of an order (s 117(2)). "Court" is defined in s 4(1) of the Family Law Act to mean "in relation to any proceedings the court exercising jurisdiction in those proceedings by virtue of this Act". That definition is not apt to identify the source of the jurisdiction exercised by this Court on the present appeal. It is true that s 95 of the Family Law Act provides that an appeal does not lie to the High Court except by special leave of the High Court. However, once special leave is granted, this Court proceeds to exercise jurisdiction directly conferred by s 73(ii) of the Constitution with regard to judgments, decrees, orders and sentences of federal courts such as the Family Court of Australia. Accordingly, and as with reg 7, in this case s 117 does not derogate from the power conferred by s 26 of the Judiciary Act. [33] The conclusion that s 117 has no application to this appeal also tends to confirm the conclusion that reg 7 has no such application. In this regard, it would be strange if a prohibition effected pursuant to the regulation-making power, and expressed without reference to this Court, were to operate in circumstances in which the statutory prohibition effected by s 117 does not.

Contrast s 347(1) of the Industrial Relations Act 1988 Cth which provided that "[a] party to a proceeding in a matter arising under [that] Act shall not be ordered to pay costs incurred by any other party unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause" which was held to apply in this Court: Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 93-94.

Even if the foregoing conclusions, which require the dismissal of the application, had been different, a question would remain whether, in the exercise of its discretion, the Court should vacate its earlier order. It is one thing to permit reopening of the orders to allow consideration of a matter accidentally overlooked so that it may be taken into account. It is another to provide relief where the party seeking it has, by its own confession, not done all that might have been done to raise the point when it was timely and appropriate to do so. Especially in this Court, judges are entitled to look to the parties, at least where they are legally represented, to defend their own interests and to alert the Court to any claimed immunities which rest upon legal provisions. That was not done here.

In the circumstances, in the view which we favour as to the operation and validity of reg 7, the discretionary question does not have to be addressed. The argument of the Director-General, supported by the Attorney-General, fails on the footing that neither reg 7 nor s 117 confines the power of this Court to award cost.

By this course we reach a conclusion that the order previously made by the Court was valid in law. It was undoubtedly sustained by the merits. It should stand. The question of the grant of a certificate under the Federal Proceedings (Costs) Act 1981 does not therefore arise. Nor is it necessary to consider a constitutional question not argued in these proceedings. This is whether the Parliament may authorise the making of a regulation which would amend or repeal a provision of an Act of Parliament.

The motion should be dismissed. The Attorney-General should pay the respondent's costs of the motion.

(1994) 18 Fam LR 307

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Judgment (74 paragraphs)

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Cases Cited (17)