Garnaut v Child Support Registrar

REASONS FOR JUDGMENT 1 I gave judgment in this matter on 25 August 2004, dismissing Ms Garnaut's application for an order of review. On that day I directed that the respondent file and serve any submissions with respect to costs within seven days, and the applicant file and serve any submissions with respect to costs within fourteen days. 2 Both parties have made submissions concerning costs in accordance with those directions. 3 Section 43 of the Federal Court of Australia Act 1976 (Cth) confers power on the Court to award costs. The award of costs under that section is in the discretion of the Court. 4 In Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, Black CJ and French J said at 235: 'The award of costs to a successful party is principally by way of perceived restorative justice. The general rule assumes that where an applicant succeeds it will have incurred costs because the respondent's conduct made it necessary for the applicant to bring the proceedings. If the applicant fails, the respondent will have incurred costs defending an action which ought not to have been brought against it. The order made in such cases is compensatory. …' 5 The general rule is that costs follow the event, unless there are some special circumstances to deviate from that rule. The fact that Ms Garnaut conducted her application without the benefit of legal representation is a matter that has to be taken into account, but does not preclude the making of a costs order against her. Absent special circumstances the ordinary rule should apply, and the respondent should have its costs of and incidental to the application. 6 In this case, however, there are factors which qualify the operation of the ordinary rule. On 30 July 2003 the Court made an order dismissing the proceedings based on a submission by the respondent that the relevant decision was not amenable to judicial review. On this erroneous basis being discovered, the matter was brought back to the Court on 3 February 2004 and the proceedings reinstated. Directions were given for the filing of further material. 7 On 23 March 2004, the Court heard a notice of motion by the respondent seeking orders concerning access to documents. The respondent did not obtain the orders sought by that notice of motion, but the Court made confidentiality orders in respect of some of the material the subject of the notice of motion. 8 In my opinion, the applicant should not have her costs of the appearance on 3 February 2004, and there should be no order in respect of the costs of and incidental to the notice of motion heard on 23 March 2004. 9 The submissions of the respondent recognise that there were expenses involved in the photocopying which were incurred by the applicant because of the erroneous submission as to jurisdiction, and recognise that a number of extensive affidavits were filed subsequent to the date of the erroneous submission as to jurisdiction. Ms Garnaut filed affidavits dated 10 February 2004, 8 March 2004, 22 March 2004, 30 April 2004 and 17 May 2004. The respondent acknowledges: '11. Normally the Applicant should be entitled to the expense of compiling these affidavits as having been occasioned by the incorrect submission in July 2003. However, almost all of this material was irrelevant. 12. The relevant parts of these affidavits, including annexures, could not have exceeded 50 pages. The Respondent considers that an allowance of $300.00 for photocopying expenses for the Applicant in respect of costs thrown away by the incorrect submissions in July 2003 is adequate. The Applicant has no legal costs.' 10 The submissions by Ms Garnaut on costs seek an order that the respondent and Ms Garnaut 'meet our own filing and legal costs'. The submissions continue: '4. … However, I submit that the Court, order the Respondent pay to me, the sum of $1000.00 for the lengthy compilation of the further documents attached to the second Application for an Order of Review, including the Second and Third Notice of Objections, and not the amount of $300.00 as submitted and agreed by the Respondent in a letter to me dated 2 September 2004, that they would pay to me.' Ms Garnaut also says in that submission: '5. In the unfortunate event that the Court may decide to award court costs against me, it should be noted by the Court that the Respondent has already indicated to me in writing in the same letter dated 2 September 2004, abovementioned, that she shall be seeking an amount in the order of $62,000.00, or a percentage thereof. I know that, if this does happen, it will only destitute me even further. If this is to happen to me, I will require a very lengthy period to pay.' 11 It seems to me that $62,000.00, or a figure anywhere near it, is a grossly exorbitant assessment of what might be the respondent's proper costs. Costs of that order seem, at first and admittedly uninformed blush, to smack of exorbitant overcharging, amounting even to professional misconduct. 12 In a very broad-brush way, I think I should fix $500.00 as the sum the respondent should pay to the applicant as a consequence of the hearing on 30 July 2003. Further, the appicant should not have any of her costs of and incidental to the appearance on 3 February 2004, nor the costs of and incidental to the notice of motion heard on 23 March 2004. Otherwise, in accordance with the general rule, I order the applicant to pay the respondent's costs of and incidental to the application, those costs to be taxed if not agreed. 13 The sum ordered to be paid by the respondent to the applicant should be offset against the liability of the applicant for the costs I have ordered the applicant to pay to the respondent. Whether the respondent would wish to enforce the costs orders that I make is, of course, a matter for the respondent. It should not be inferred from the fact that the costs orders have been made that there is any obligation or duty to seek to recover those costs ordered.