Nilant v Macchia

REASONS FOR JUDGMENT 1 This is a notice of motion by Mario Silverio Macchia, who will be referred to as the Bankrupt, filed in appeal WAG 51 of 1997 seeking orders that: "1. Pursuant to s 6 of the Federal Proceedings (Costs) Act a certificate be granted to the Respondent in respect of the appeal. 2. Pursuant to Section 8 of the Federal Proceedings (Costs) Act a certificate be granted to the Respondent in respect of the re-hearing before Lee J." 2 Section 6 of the Federal Court Proceedings (Costs) Act 1981 (the Act)relevantly provides: "6(1) Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. … 6(3) The certificate that may be granted under sub-section (1) … by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of - (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates". 3 Section 7 deals with costs certificates for appellants in Federal appeals. There has been no costs certificate granted under s 7. 4 Section 8 has the heading "Costs Certificates - New Trials" and provides: "8(1) Subject to this Act, where, in a Federal appeal that succeeds on a question of law, the court that heard the appeal grants a new trial in a cause of a civil nature, the court may, on the application of a party to the cause, grant to the party a costs certificate in respect of the new trial … 8(3) The certificate that may be granted under sub-section (1) … to a party to a cause … by a court that has granted a new trial is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party … in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party or accused person in relation to the new trial." 5 On an application by the Bankrupt, to which Mr Nilant (the Trustee) was respondent, Lee J held on 11 April 1997: "Having regard to all these matters I conclude that an appropriate order in this case is that the period of bankruptcy limited by s 149 of the Act be abridged from 3 years to 1 year and 1 month from the date of filing of the statement of affairs. As a result Mr Macchia will be discharged from bankruptcy as at 22 February 1995, a period of bankruptcy of 3 years and 5 months." 6 The orders his Honour made were: (a) that the time limited by subs 149(3) of The Bankruptcy Act 1966 (Cth) for the period of bankruptcy in this matter be abridged to 13 months from the date on which the Bankrupt filed his statement of affairs; and (b) that there be no order as to costs. 7 The appeal in respect of which the Bankrupt seeks a costs certificate was an appeal by the Trustee from those orders. The Bankrupt was the respondent to that appeal. It was heard on 14 July 1997 by the Full Court as presently constituted, which ordered on 15 September 1997 that: "1. The appeal be allowed. 2. The orders made on 11 April 1997 be set aside and the matter be remitted to Lee J for further consideration. 3. The respondent pay the appellant's costs of the appeal and of the proceedings before Lee J to date." 8 The basis for the making of those orders was the view of the Full Court that s 33(1)(c) of the Bankruptcy Act 1966 (the Bankruptcy Act) does not permit the time provided by s 149(3) of that Act for the discharge from bankruptcy of a bankrupt to be abridged, on the basis that it is not a time limited by the Bankruptcy Act "for doing an act or thing", as is required to invoke s 33(1). The appeal succeeded, therefore, "on a question of law" as required by s 6 of the Act. 9 The Court did not, in terms, "grant a new trial", but remitted the matter to the learned primary judge "for consideration of any alternative basis upon which to determine the actual period of the respondent's bankruptcy." 10 Notwithstanding s 12 of the Act, which provides that "[t]he jurisdiction conferred on a court by this Act to grant costs certificates may be exercised by a member of that court sitting in Chambers", having regard to the conferral of power under ss 6 and 8 of the Act on "the court that heard the appeal", from an abundance of caution this notice of motion has been considered by the same Full Court as heard appeal WAG 51 of 1997. 11 The Trustee has had notice of the Bankrupt's notice of motion, but did not seek to make submissions about it. 12 It seems to us that the proceedings at first instance, leading to the orders of 11 April 1997, and the appeal brought from those orders to the Full Court, both turned on a mistaken view that s 33(1)(c) of the Bankruptcy Act permitted an abridgment of the period of bankruptcy specified by s 149. It is appropriate in those circumstances for the Court to make an order for a costs certificate for the Bankrupt under s 6 of the Act. That certificate should state that in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the Bankrupt in respect of: (a) the costs incurred by him in relation to the appeal to this Court; and (b) any costs incurred by the appellant Trustee in relation to the appeal to this Court that have been, or are required to be, paid by the Bankrupt to the appellant Trustee in pursuance of the order of the Full Court. 13 So far as a certificate under s 8 of the Act is concerned, in our view neither the circumstance that, on further consideration of the matter on remittal from this Court, the learned primary judge made orders favourable to the Bankrupt but made no order as to costs, nor the fact that those orders, including the order that there be no order as to costs, are the subject of an appeal by the Trustee to a further Full Court, are relevant to the exercise of the discretion provided by s 8. 14 The evident purpose of s 8, in the context of the Act, is to permit the Attorney-General to pay, to any party to a matter that has been the subject of an order for a new trial, part or the whole of any costs incurred by that party in relation to the new trial. This is to be contrasted with s 6. Section 6 is not concerned with the costs of either the first trial or a new trial. Section 6(3)(a) is directed at "the costs incurred by the respondent ín relation to the appeal", and s 6(3)(b) is directed at "any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court …". Section 8, clearly, is directed at the costs of a party on a new trial. It is not concerned with the costs of any party on the first trial. Nor is it concerned with costs other than the costs incurred by a party on the new trial. This indicates that s 8 does not extend to costs that a party might be ordered on the new trial to pay to another party, nor to any costs order that might be substituted by a Full Court on appeal from orders made on the new trial. This observation is consistent with the distinction between the costs referred to in s 6(3)(a) and those referred to in s 6(3)(b). 15 So far as a criminal appeal is concerned, since the appellant against a conviction will have incurred his or her costs of the first trial, the intention of the conferral of the power in s 8 of the Act is that he or she, in an appropriate case, should not have to pay more than one set of his or her own costs of a proceeding at first instance. 16 We are prepared to accept that the "further consideration" which the Full Court ordered in the present case is a "new trial in a cause of a civil nature" within s 8(1) of the Act, with the consequence that the foundation for a s 8 certificate exists. Given that the second hearing became necessary as a consequence of the error of law identified by the Full Court, it is appropriate in all the circumstances to grant to the Bankrupt a costs certificate under s 8 of the Act in respect of the costs incurred by him in relation to the new trial. 17 The orders that we make on the notice of motion are: 1. Pursuant to s 6 of the Federal Proceedings (Costs) Act 1981, the Full Court of the Federal Court grants to the respondent to appeal WAG 51 of 1997 a costs certificate in respect of that appeal, the certificate to state that in the opinion of the Full Court it would be appropriate for the Attorney-General to authorise a payment under this Act to the respondent in respect of : (a) the costs incurred by the respondent in relation to that appeal; and (c) any costs incurred by an appellant in relation to that appeal that have been, or are required to be, paid by the respondent to the appellant in that appeal. 2. Pursuant to s 8(1) of the Federal Proceedings (Costs) Act 1981, the Full Court of the Federal Court grants to the respondent to appeal WAG 51 of 1997 a costs certificate in respect of the new trial, stating that in the opinion of the Full Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in that appeal in respect of such part as the Attorney-General considers appropriate of the costs incurred by that party in relation to the new trial. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Carr, and Finn JJ