De L v Director General NSW Dept of Community Services & Anor S146/1996 [1997] HCATrans 33 (10 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S146 of 1996

B e t w e e n -

DE L

Appellant/First Respondent

and

DIRECTOR GENERAL, NSW DEPARTMENT OF COMMUNITY SERVICES

First Respondent/Applicant

DE L

Second Respondent/Second Respondent

Application to vacate order

BRENNAN CJ

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 10 FEBRUARY 1997, AT 10.19 AM

Copyright in the High Court of Australia

______________

MR G.R. KENNETT: May it please the Court, I appear for the first respondent, who is the applicant on the notice of motion. (instructed by the Crown Solicitors Office (New South Wales))

MR G.C. LINDSAY, SC: May it please the Court, I appear with MR R.D. WILSON, who is the respondent to the motion, the appellant in the proceedings. (instructed by Stacks - The Law Firm)

MR G. GRIFFITH, QC: If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the Attorney- General for the Commonwealth intervening. (instructed by the Australian Government Solicitor)

BRENNAN CJ: Yes, thank you.

MR GRIFFITH: Although my learned friend, Mr Kennett, announced on behalf of the first respondent that he was the applicant, in essence, the Commonwealth has the burden of the argument here, and if the Court would permit it, I would present the argument.

BRENNAN CJ: Yes, Mr Solicitor.

MR GRIFFITH: Firstly, your Honour, could I make it clear that this is a matter of mere culpa the application made in that it is clear that the Court did not have the assistance to which it was entitled to on the issue of costs in this matter. Whether it was because of optimism on, at least, the respondent's part that there would not be an occasion for costs to follow the event of the judgment or there is some other explanation, I am unable to say, other than to say to the Court that it is regretted that the assistance was not forthcoming, particularly, as I note your Honour

Justice Gaudron at the end of argument, transcript 96, did invite the wife's counsel to make submissions. It is clear both from the file material and the absence of any submissions whatsoever, oral submissions by the respondent or the Attorney intervening that, at the very least, attention was not turned to this peculiar issue of costs and, that, therefore, it is assumed and perhaps the Court could correct me if the assumption is false that the Court thereby was not directed to what seems to be a particular difficulty in the context of costs orders and appeals under the Family Law Act 1981 , including in respect of The Hague Convention matters. Having said that, can I take the Court to the issue which is the operation of the Regulation 7.

BRENNAN CJ: Before you do, Mr Solicitor, might I mention that the Senior Registrar certifies that she holds a letter from the solicitors for the second respondent advising the second respondent does not wish to be heard on the application by the first respondent to vacate the costs order.

MR GRIFFITH: Thank you for that indication, your Honour. Could I take the Court to Regulation 7 of the regulations which provides, we say, in clear enough language that "A person", in this case "being a State Centre Authority", and the person, although designated "State Centre Authority" is an individual:

exercises the powers and performs the function 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.

This regulation seems to have been regarded by the Full Court as preventing any orders for costs. One picks that up in the appeal book page 167 and it does seem that on the application for special leave that that was the position taken by the wife as the appellant to this Court. In paragraphs 43 and 44 of her submissions she refers to the operation of Regulation 7 and as we read it, conceding that the central authority is immune from the order for costs. Those submissions appear as Annexure A to the affidavit of F.G. Kerr, 17 October - - -

GUMMOW J: There was a constitutional issue in this appeal that has got to this Court, was not there?

MR GRIFFITH: No, there was not, your Honour. No, I do not think so.

GAUDRON J: Was not there one about the proper application - the question whether the regulations implemented the Convention?

MR GRIFFITH: Your Honour, I think that is probably correct, yes.

GUMMOW J: And we said the regulations were invalid.

MR GRIFFITH: Yes, that is probably so, your Honour.

GAUDRON J: Would not the simpler course be to make an order for costs against the Attorney-General intervening?

MR GRIFFITH: Your Honour, that would not be a simple course because that might discourage the Attorney-General from coming to assist the Court in these matters.

GAUDRON J: That might serve a very useful dual purpose, in that event.

MR GRIFFITH: May I go directly to the merits and say that it is accepted by the respondent applicant, and also by the Commonwealth Attorney-General intervening, that there is a strong argument in the interest of justice that the wife should have her costs. There is an indication that she did have legal aid for the appeal, itself, but beyond that we are content to accept that this is an occasion for the Court to make an order under section 9 of the Federal Proceedings (Costs) Act which would seem specifically intended to deal with that situation. Perhaps, your Honour, it may be of assistance if I also hand up to the Court the second reading speech on the introduction of the 1981 Act which makes it quite clear that there is an intention that there should be, in the interests of justice, a fund of moneys available, as the Court no doubt is aware. In the States, by and large, the appeal cost fund is funded by a levy on litigants in courts. In the case of the Commonwealth, it is funded by direct budgetary contribution by the Commonwealth.

As we read section 9, and we take it from my learned friend that an application will be made to the Court for a certificate under section 9, that it would seem to cover the situation here where one has an appeal in a family law matter where the basic operation of section 117(1) is that there should be no order for costs, as was the case regarded down below, and where, in the case of the application concerning The Hague Convention and the New South Wales central authority, it seems Regulation 7 applies. Your Honours, I should also indicate that it - - -

GUMMOW J: But section 117 of the Family Law Act applies to proceedings under that Act.

MR GRIFFITH: Yes, your Honour.

GUMMOW J: This was not a proceeding in this Court under that Act.

MR GRIFFITH: It was an appeal, your Honour, and we would say that should be regarded as within the umbrella of being regarded under that Act.

GUMMOW J: Why should it take away the Court's power under section 23, is it, of the Judiciary Act?

McHUGH J: Section 26.

MR GRIFFITH: Section 26, your Honou. We would not wish to submit that it takes it away, but what we say, your Honour, if the Court is to exercise its power under that section it should have regard to the ordinary position with respect to costs so far as the position of family law appeals are concerned. I should also indicate that it has been agreed that the Commonwealth should pay the costs of the wife in respect of today's application, and no order is required so far as that is concerned to cover those costs. So, the issue before the Court today is whether or not Regulation 7 should be given effect according to its terms.

In answer to your Honour Justice Gummow's proposition to me, we would say that whatever might be the overarching power of this Court, it is appropriate for the Court to have consideration to the cost structure provided for under the Family Law Act, the general provision of section 117(1) there should be no order for costs, and also the particular operation of Regulation 7 in connection with Hague Convention applications.

TOOHEY J: I just wonder whether section 117 is wide enough to include this type of situation when it ordinarily would look to proceedings between spouses.

MR GRIFFITH: Yes, your Honour, but we would say the principal provision on costs here is Regulation 7 being, as the Court has held validly, the regulation - - -

TOOHEY J: Yes, but in terms of invoking section 9 of the Federal Proceedings (Costs) Act.

MR GRIFFITH: Yes. As to that, your Honour, I wish to address no argument that section 9 does not apply because we would submit that the reference to section 117 in section 9 is a reference to the ordinary provision that there should not be costs orders under the Family Law Act. Regulation 7 is in no way inconsistent with that. In a way, Regulation 7 operates to really remove from at least the Family Court at least the section 117(2) power. We say that it does not do that by way of a regulation superseding a statutory provision but by way of the enactment of The Hague Convention obligations pursuant to section 111B of the Act in the form of the regulations which by and large have been held valid by decisions of this Court.

So that we would not seek to make a sharp point that section 9 does not apply by reason of that phrase in subsection (1)(b) that your Honour refers to. It seems to us that this is the plain sort of case that section 9 is intended to cover, namely where it is a family law matter and the ordinary rules that there should be no orders for costs apply. They apply here, your Honour, more because of the operation of Regulation 7 but in conformity with the general statutory provision of section 117. That is why we have no difficulty about the Court making an order, as indeed an order was made by the Full Court down below in this matter.

GAUDRON J: Is the order worth anything under section 9?

MR GRIFFITH: I gather it is worth $6,000, your Honour. The Attorney-General invariably pays on the certificate, so it is worth something. I mentioned that today's costs are also covered and there is a grant of legal aid. But our principal point is that Regulation 7, as in the court down below, firstly should have been brought to the Court's attention and considered - and that was obviously a neglect of those then appearing for the authority not to bring out clearly to the Court the matter which is touched upon in the submissions on special leave, namely that Regulation 7 is there.

Your Honours, that having been brought to the Court's attention, our submission is that it is appropriate for the operation of Regulation 7 to remain the practice of this Court, accepting the point put to me by Justice Gummow that there would still be a jurisdiction in this Court under section 26 to make an order for costs if the Court were minded to do so.

BRENNAN CJ: Against the central authority?

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: Despite the wording of Regulation 7?

MR GRIFFITH: Your Honour, that is the issue of could the regulation under section 111B in effect be regarded as negating the operation of the Judiciary Act provision. I was not intending to enlarge on an argument that to that extent, pro tanto, the Judiciary Act provision did not apply.

GUMMOW J: It would be a question as to whether section 111B authorised a regulation which, pro tanto, repealed a section in the Judiciary Act.

MR GRIFFITH: Yes, your Honour. I do not wish to argue that. What we say is that Regulation 7 makes clear enough the policy of the operation, we say for obvious reasons, of the - - -

BRENNAN CJ: But are you putting this argument as a matter of discretion or are you putting it in terms of power?

MR GRIFFITH: Your Honour, up to section 26 we put it to one of power, but when section 26 is raised we say, "Well, yes, it's accepted that there is an overarching discretion in this Court but it is one which the Court should address its mind to." And only for exceptional reasons, your Honour, we say in a situation where this is an appeal in a matter arising under the Family Law Act, including a connection with The Hague Convention matter through section 111B and the regulations, should the operation - - -

KIRBY J: But if one did that and if one, therefore, as it were, recommitted the discretion, may one not say that under the proposal you have put forward the applicant is going to get much less than she would get under the costs order? The case that was raised was a test case, it was a case of general importance, it was argued on that basis and that normally one would provide, if there is power, even on reconsidering and considering Regulation 7, for the respondent's full costs.

MR GRIFFITH: Your Honour, we would say it cannot be assumed that the applicant will get substantially less; but, your Honour, in Family - - -

KIRBY J: I thought you told us that under the certificate it - normally under the Suitors Fund Act in New South Wales it is substantially less that would be given by a costs order inter partes.

MR GRIFFITH: Your Honour, I do not know what the applicant's costs will tax out at, but it may or may not be some great amount.

KIRBY J: With two counsel, one would expect it would be more than - - -

McHUGH J: Plus special leave.

MR GRIFFITH: Your Honour, I mentioned also there has been a grant of legal aid for the appeal; but it is a question, your Honour, of what costs are there. What we do say is firstly, the Court, we would suppose in the absence of indications to the contrary because there was no argument put to the Court, had not considered these aspects of discretion. Our principal submission is that the Regulation 7 should be a regulation which should operate according to its terms in respect or appeals to this Court as much as they do in respect of appeals to the Full Court of the Family Court.

TOOHEY J: When you say "operate according to its terms", I am still not clearly, Mr Solicitor, whether you are, in effect, conceding that section 26 gives an overriding jurisdiction and, therefore, the matter is simply one of the exercise of the Court's discretion or whether the submission goes further than that?

MR GRIFFITH: Your Honour, I have difficulties in going further and saying the operation of Regulation 7 is to, in effect, narrow the Court's general discretion under section - - -

McHUGH J: There is a serious question whether Regulation 7 is valid in any event, quite apart from section 26.

MR GRIFFITH: Your Honours, I was hoping that no one would raise that, but that is a regulation which we say is supportive as part of the enactment of the Convention.

McHUGH J: It does not seem to be enforcing the obligations under the Convention. That is what - anyway, that is another question.

MR GRIFFITH: It is an incidental part of it, your Honour, but what we submit with respect to that your Honour is that when one has the Convention scheme of a central authority administering the Act it is appropriate for regulations to make a cost provision such as that.

TOOHEY J: But on that approach Regulation 7 is simply a pointer to the way in which the Court ought exercise its discretion.

MR GRIFFITH: What we say, your Honours, is that it is a default setting which should be displaced on appropriate strong cause shown which, in our submission, a case at family laws matters should be rarely, if ever. We say the basic position for family law appeals, including to this Court, is that orders for costs - - -

McHUGH J: I am not sure you should say that we never considered it. I just have the vaguest of vague recollections of thinking to myself that that has nothing to do with this Court. I may be confusing it with something else or some other case but I just have a - - -

MR GRIFFITH: I should indicate paragraphs 26 to 30 of the wife's submissions make it clear that she wished her costs to be paid in some way or another but, when read with the submissions made on special leave, we do not read the submissions as saying that Regulation 7 does not prevent an order being made directly against the central authority. The submissions of the wife of course, in case she did not know whether she would be successful or not were in effect looking for some order for costs in any event.

BRENNAN CJ: Mr Solicitor, I understand that you wish to wound without striking in relation to the validity and operation of Regulation 7 but, on analysis, if it is a question simply of the exercise of discretion, you have a litigant who has succeeded in an ordinary contest. What is the factor which would lead to a deprivation of the ordinary order as to costs? Answer: there is a regulation which does not bind the Court to observe immunity in respect of the unsuccessful party.

MR GRIFFITH: Yes, your Honour. I was hoping that would strike and not merely wound because what we say is that is the practice of the Court in considering Hague Convention matters. In effect, any such order of this Court would be the first occasion when any order for costs has been made notwithstanding the terms of Regulation 7.

BRENNAN CJ: It would be giving effect to something which has no legal operation.

MR GRIFFITH: Your Honour, it certainly has legal operation in courts below this Court.

TOOHEY J: Yes, but section 26 of the Judiciary Act is sort of hovering over all of this. When you say this would be the first occasion on which an order for costs has been made in this type of proceeding, do you include appeals to this Court?

MR GRIFFITH: In Hague Convention matters?

TOOHEY J: Yes.

MR GRIFFITH: Yes, your Honour.

KIRBY J: I do not quite understand why you do not wish to argue as to the validity and effect of Regulation 7. On the face of it it is a particular and specific matter dealing with a very small subcategory of costs and can be reconciled with the Judiciary Act by saying there is a general power but, when you come to this particular matter, the law of the land, namely the regulation should be within power, makes a particular order which is addressed to the world at large.

MR GRIFFITH: Your Honour, that is very appealing. The difficulty is of course the point made by Justice McHugh that this is a regulation. It does seem to us it is a somewhat long bow to rely on it as limiting the operation of a section.

KIRBY J: But if it is within power it is made under an Act and it is part of the law.

MR GRIFFITH: Your Honours, we - - -

KIRBY J: Anyway, if you do not want to argue it, I am not going to pressure you into arguing it, but I am just affected by what the Chief Justice said that if it is relevant and part of the law, then we have to consider it. If it is not, then let it be swept aside and then it is just a matter of applying the Judiciary Act and the general discretionary principles.

MR GRIFFITH: Your Honour, we do submit it should be considered and it should have been brought to the attention of the Court at the time, particularly as Justice Gaudron raised the issue of costs at the end of - - -

KIRBY J: I just do not see how you can have it both ways. If it is valid and part of the law it must be considered and applied. If it is not binding on this Court, then I do not see why we have to consider it.

MR GRIFFITH: Your Honour, we certainly say that it is valid so that, for example, in the Family Court, it applies as it has been applied. In the case of this Court, your Honour, it has the advantage of section 26, but we submit that it is appropriate, your Honour, for the statutory scheme to be respected by this Court unless there is some particular reason for the Court to exercise its discretion in a contrary way.

BRENNAN CJ: Mr Solicitor, the option is fairly stark, is it not? Either section 26 confers a discretion which is not cut back by the subsequent enactment of Regulation 7, as Justice Gummow put to you, or it is not. If it is, then the question arises as to the validity of the regulation. As I understand it, you do not wish to argue that. The alternative is, of course, that it does not affect section 26 and so the matter is at large.

MR GRIFFITH: Your Honour, we wish to get the result and what we say, your Honour, is section 26 confers jurisdiction on the Court in respect to costs.

BRENNAN CJ: Well, you cannot really put it that way, can you? You must say, "Gives jurisdiction to the Court to award costs against the present applicant."

MR GRIFFITH: Yes, your Honour, but the awarding of costs is a discretionary matter under section 26 as in any other proceedings in the Court, whether there is specific cost provision or not, and we say that on the exercise of discretion, your Honour, there is an additional provision which is a valid provision, Regulation 7, which indicates that on the issue of appeals in family law matters under the Act, particularly arising from Hague Convention matters, then there is to be a result that there should not be an order for costs.

BRENNAN CJ: Then, Mr Solicitor, you face another point, do you not? Regulation 7 says they are immune.

MR GRIFFITH: Yes, your Honour.

BRENNAN CJ: Section 26, if it is unaffected by Regulation 7 says there is power. Well, now there is a conflict, so that one either reads down Regulation 7 or one reads down section 26. Which is it to be?

MR GRIFFITH: Well, your Honour, that first bit, if it is to be as stark as that, we would read down section 26 to vindicate the policy of Regulation 7.

BRENNAN CJ: Do you speak of policy and not operation?

MR GRIFFITH: The operation of Regulation 7, but that, of course, then invites a resposte which, no doubt, my learned friend will then make to say, "The regulation cannot operate according to its terms to cut down the statute." I suppose we get then, your Honour, to an issue of the extent of the regulation-making power under section 111B. Now, your Honours, our submission on that is that section 111B does support Regulation 7. It is a valid provision, your Honour. So, that, perhaps, in a way by making it clear that it is necessary to strike rather than wound puts my submissions at a slightly more elevated point than I thought it was necessary to go, your Honour, to get the order which we seek today, but we would put it like that if pressed so as to strike.

KIRBY J: If we take that line of thinking, and we have not had much assistance from you with respect about the validity of the regulation. You just assumed it. If it has to be answered starkly then I think we have to have some assistance on that question.

MR GRIFFITH: Yes, your Honour.

GUMMOW J: You have to say, do you not, that Regulation 7 confers an immunity even in a suit in which the validity of the regulations, including Regulation 7, are brought into question.

MR GRIFFITH: Yes, I do, your Honour.

GUMMOW J: Not to the point to say this is a case under The Hague Convention, it is much more than that; it is a test case about validity of these regulations. It was not a run of the mill case.

MR GRIFFITH: Your Honours, we certainly do say that Regulation 7 is valid. If the Court took the view that Regulation 7 was not valid, we would take the view that section 117 would still apply. Section 117 establishes a general rule that each party "shall bear his or her own costs".

GUMMOW J: That is in proceedings under the Family Law Act.

MR GRIFFITH: We say, in effect, these were proceedings under the Family Law Act. It was an appeal with respect to an order made under section 111B of the Family Law Act.

GAUDRON J: They are also proceedings under the Judiciary Act are there not, once they get to this Court?

MR GRIFFITH: They do not stand alone, your Honour. We say that this is a matter under the Family Law Act, that is, removed from the Family Law Act. Your Honour, there is a limited exception in section 117(2) enabling the Court to make a different order, it being satisfied as to particular matters. As we see it, there is no application that those criteria are satisfied.

On the validity point which we now seem to be engaged in, we do submit that the regulation-making power under section 111B authorises:

The regulations may make such provision as is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any benefit, under the Convention -

"Necessary", we would submit, does not mean essential, so "necessity" in this sense is a common sense conception which requires some analysis of what is reasonably required or legally ancillary, if you like, to the accomplishment of the relevant aim. It travels beyond bear essentials. Could I give the Court two authorities, not of this Court, which we would regard as supporting that proposition? The first is - sorry, your Honours, these were not on our list because we did not apprehend that we would pressed to this point. The first is State Drug Crime Commission (NSW) Chapman 12 NSWLR 447 at page 452. Also, Proprietors Units Plan No. 52 v Gold [1993] FCA 385; (1993) 44 FCR 123 at page 126. That is a decision of the Full Court which applied the New South Wales dictum.

We would secondly say that section 111B is a law with respect to external affairs independently of the Convention. Of course, that was held by the Court, in this case, 70 ALJR of the Court's decision at page 935. We say it is clearly directed at implementing the Convention. It obviously intended full implementation of the Convention. We say that section 111B then must be regarded as conferring a regulation-making power in the fullest terms that it would allow under the incidental power and also under the external affairs powers, implementation of the treaty.

So we submit that a regulation is permissible which is capable of being reasonably considered to be appropriate and adapted to implementing the Convention. We say that the power is not directed to literal implementation with the precise obligations. So that - - -

KIRBY J: Is it suggested that the provision follows any of the other nations that have introduced the regulations?

MR GRIFFITH: Your Honour, that is not suggested. I am unable to give the Court a table, although we could provide one, your Honour, as to what is foreign practice in this matter. In fact, your Honour, perhaps we should to that because that does, as your Honour - - -

GUMMOW J: The Convention does not require handing authority to judicial power, does it?

MR GRIFFITH: No, your Honour, in many States it is not, it is administrative,.

GUMMOW J: It is really administrative.

KIRBY J: And in some States there would be different costs provisions. For example, the United States is a party to the Convention and would have different cost orders.

MR GRIFFITH: They basically would not have costs orders one would expect, your Honours. I would have thought but perhaps we should look at this, that it would be surprising if there were many jurisdictions that had an ordinary practice for costs orders. We will consider that, and if I had the leave of the Court we could file and serve submissions that deal with that matter of fact. It is our submission that Regulation 7 is appropriate and adapted to give effect of the commission in that it protects the persons who hold office as central authorities from a form of pecuniary liability arising from the actions that they may have in discharging their obligations with respect to the implementation and the operation of the Convention; indeed, discharging obligations which by the terms of the Convention Australia owes to other countries.

So that when one looks at Article 26 of the Convention there is a requirement that the central authority bear its own costs. So that prevents a charge being imposed in relation to applicants under the Convention from foreign States. The Convention itself requires that the costs remain in board the country where the application made is for an order of return. We submit, your Honour, it is open to Australia in implementing the Convention to require the respondent to an application for return of a child to meet their own costs. The protection of Regulation 7 removes a fetter on actions by central authorities as a matter incidental to action which needs to be taken to ensure that Australia fulfils its obligation. So in that way we would submit that it is necessary, in the relevant sense, to enable the performance of the obligations of Australia under the Convention within the meaning of section 111B. So that it is our submission that Regulation 7 if challenged is valid.

TOOHEY J: As to whether or not it is to be challenged it is not clear until we have heard from Mr Lindsay. But looking at the written submissions on behalf of the wife, if you look at paragraph 8 it is in terms, if there is an inconsistency between section 26 and Regulation 7, Regulation 7 is to that extent invalid. I am just still having difficulty with how far the argument is going. Whether it is simply that, yes, Regulation 7 is valid, it does not cut down the powers of the Court under section 26 of the Judiciary Act but is an indication of how those powers should ordinarily be exercised, or whether you are saying that because Regulation 7 is valid the power exercisable under section 26 cannot extend to the making of an order against the authority.

MR GRIFFITH: I accept responsibility for your Honour's difficulties. The purpose of our submissions would be to obtain a result that the order for costs was made under the Costs Act rather than under the ordinary jurisdiction of the Court on an appeal as regarding the Family Law Act. So that it really is the case in response to indications in the Court in argument that we do take up strike position and therefore would say that, firstly, Regulation 7 is valid for the reasons that we have stated. On that basis, your Honour, I would be emboldened to make the submission that that would cut down section 26 if the Court - - -

TOOHEY J: That inevitably draws Mr Lindsay into the area of validity.

MR GRIFFITH: Yes, your Honour. One thing we were concerned to make in this application is where it might end up because it is just a little order for costs, but one thing builds on another. I suppose the question of Mr Lindsay as to how far he wishes to be drawn. At one stage when he approached the Court it seemed he was content to accept the operation of Regulation 7. I suppose now he has a costs order in his pocket he feels that it is appropriate to defend it by arguments of this sort.

KIRBY J: Is there a case that you can cite to us where there has been a clash between an Act expressed in general terms and a regulation that comes later in particular terms where it is suggested that that is inconsistent with the Act?

MR GRIFFITH: Your Honour, I do not have one with me. We could attempt to find one.

KIRBY J: Because at least arguably you have an Act in general terms and a regulation which is not inconsistent but is addressing a particular small section of the matters that are dealt with under the Act, that there is no real inconsistency; the two can live together. The one does not derogate from the other; it simply shows how the power is to be exercised.

MR GRIFFITH: Of course, your Honour, we would say the same thing for section 117, although that is a statutory provision rather than a regulatory one, 117(1), which is a specific one dealing with family law and that really - - -

GUMMOW J: You have to bring all this into the - it was not simply a case of applying The Hague Convention, was it? There was a question of validity involved, in this Court anyway.

MR GRIFFITH: Yes. We say in a matter on appeal under the Family Law Act involving an order made under the Convention.

GUMMOW J: You may have nothing to fear at all as to what happens below this Court, but this particular.....in this Court, it had a special dimension. It was a matter arising under or involving interpretation of the Constitution in relation to external affairs power.

MR GRIFFITH: Your Honour, that could be said at the Full Court level also where the operation of Regulation 7 was accepted.

KIRBY J: May there not be matters of general principle as to why section 26 of the Judiciary Act should not be narrowly confined, given that by the time matters come to this Court there are often questions of very broad general consideration and cases are often test cases, as this one was, and that therefore there should be no reading down of section 26.

MR GRIFFITH: Your Honours, the costs position or the interests of the parties can vary from case to case. It is quite usual in this Court that at the special leave stage where an authority seeks to appeal in matters such as that that, it is on terms that it will pay the costs in any event; for example, revenue repeals - that is almost an invariable order. In other matters, indeed costs are usually offered. But it is not the case that the Court always is able to make appropriate orders for costs.

KIRBY J: I think in the Industrial Relations Act Parliament took the pains, as I remember it in the old Act, to expressly control the orders for costs. I do not know whether it did so in this Court but I think consideration has been given to that statutory provision in the exercise of the Court's discretionary power.

MR GRIFFITH: I think in non-prerogative writ matters, your Honour, certainly there are no orders for costs made. Prerogative writs I think are regarded separately in industrial matters because it is a direct jurisdiction under section 75 of the Constitution. But, your Honours, we would demur from the suggestion that this Court always has the capacity to make costs orders as it sees fit. We say that it is tempered by the legislative structures. In effect, your Honours, we would say to introduce an unreal analysis to say that this was in effect an original case in this Court in its jurisdiction to interpret and apply the Constitution. It was not. It was an appeal from the Full Court in a matter where issues of the operation of the Convention arose, including issues of validity of the regulations.

But it does seem that we have certainly exposed by knowing, which is certainly longer than intended, the fact that there is an issues for consideration of the Court. Could I indicate again that it is with regret that the Court was not taken to these matters at the time that it should have been taken to them, namely at the very latest the closing of the oral arguments before the Court. Perhaps I can indicate to your Honours that I was unaware at that stage that there, firstly, were these issues and, secondly, that the Commonwealth had any interest in them. But that is by way of explanation and certainly not excuse. If the Court pleases.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Lindsay.

MR LINDSAY: Your Honours, we submit that the Court had jurisdiction to make the order that it did under section 26 and we submit that it was an appropriate exercise of discretion by the Court to make the order that it did make. The respondents in the appeal and the Attorney had an opportunity to make submissions on the appeal and they did not. Accordingly, there are no grounds for interfering with the order that was made. So far as the question of jurisdiction is concerned, it would be our submission that section 26 is an independent head of power and ought not to be read down by Regulation 7.

BRENNAN CJ: Why not?

MR LINDSAY: First of all, if one looks at Regulation 7, it concerns proceedings under the Convention regulations and we would submit that does not have a wider impact on proceedings in this Court where there is an independent grant of power.

BRENNAN CJ: Why do that say that is a matter of construction of Regulation 7?

MR LINDSAY: We do.

BRENNAN CJ: But it is in relation to the exercise of the powers or functions of the central authority. Are you saying that the appearance of a central authority here and the prosecution of the matter was not in performance of those functions?

MR LINDSAY: No, I do not submit that but, on the interpretation of Regulation 7, we would submit that that is not intended to cut down the broader aspect of the proceedings which were before this Court, namely the questions of validity and the like, and there is an independent power under section 26. If it was intended to cut down section 26, in our submission, it would be more clearly made out both in Regulation 7 and in section 111B of the Family Court Act. It is a big step, in our submission, to say that - - -

BRENNAN CJ: And in section 117 of the Family Law Act?

MR LINDSAY: Well, section 117 of the Family Law Act, I suppose, from our point of view, cuts both ways. There is a question about whether or not these procedures could be characterised as being under this Act in terms of section 117.

BRENNAN CJ: Why do you say that?

MR LINDSAY: I have in mind that that question arose in the context of whether or not section 111B operated independently of the general provisions of the Family Law Act. There was a question as to whether or not proceedings under the Convention were ordinary proceedings under the Family Law Act and my recollection is that the authorities suggested they are not, so there is a question about whether or not section 117 applies, but it is not - if I can be, I suppose, candid about it - in our interest to struggle too much about that because any order that we might ultimately seek under the Costs Act, section 9, requires the proceedings to be under section 117. Our submission would really be that section 26, if it was intended to cut it down, would require a clear indication of legislative intention and that is not to be found by a side wind.

TOOHEY J: That is shadow sparring to some extent, is it not? You have said nothing as to the validity of Regulation 7 so assume for the time being that it is the valid regulation, are you then saying that as a matter of construction of the regulation it is not available to the authority in these circumstances or, yes, it is available to the authority but section 20 must be read subject to section 26 as not excluding the power of the Court to award costs in respect of Hague Convention proceedings.

MR LINDSAY: We submit that section 26 is untrammelled. It is not, as a matter of jurisdiction, cut down by Regulation 7, assuming that Regulation 7 is otherwise valid. It may be - - -

TOOHEY J: You say that as a matter of construction of Regulation 7, namely, that it has no operation in this situation or, yes, it does have an operation but it does not detract from the broad powers conferred by section 26.

MR LINDSAY: If I may take it back a bit, it is not only the view taken of Regulation 7. It is the view taken of section 26, which is expressed in general terms and without qualification, and it would be assumed that if there was to be any cutting down of that general power, it would be clearly stated. We then turn to Regulation 7 and, in our submission, Regulation 7 does not clearly indicate any intention to take away this Court's jurisdiction in relation to costs so that to that extent, and assuming that Regulation 7 is otherwise valid, to that extent it has to be read down so that it does not cut across the bows of section 26. That would be sufficient, so far as the present costs order is concerned, to dispose of the question of jurisdiction.

We would submit further, if we were required to though, that to the extent of any inconsistency between the two - that is section 26 and Regulation 7 - Regulation 7 would be invalid because of that conflict and we would embrace the question which has arisen today, to the extent that we have to, that Regulation 7 does not give effect to the Convention and so is not authorised by section 111B of the Family Law Act. So that although all those issues - - -

KIRBY J: Why would it not be seen as reasonably incidental to giving effect to the Convention to, as it were, protect a body which has purely public functions to perform and whose performance is integral to the proper operation of the Convention?

MR LINDSAY: Because the provision in section 111B is expressed in terms of provisions being necessary to enable the performance of obligations of Australia. It is not necessary to the performance of the obligations of Australia that there be an immunity conferred - - -

BRENNAN CJ: So necessity is a question for this Court under that section?

MR LINDSAY: Yes.

KIRBY J: Why is it not reasonably open to the executive government which makes these regulations to form the view that it is necessary for the operation of the Convention to give an immunity and, therefore, such opinion would not be interfered with by the Court?

MR LINDSAY: The question is not so much that question, if I may put it respectfully, but rather whether or not in terms of section 111B, as a matter for construction, it is necessary. There is either power there or there is not. It would not be a matter for some subjective judgment on the part of the executive.

KIRBY J: I am not suggesting subjective, I am suggesting that it is at least arguably open to the executive to whom the power to make regulations is given by the Parliament to so determine and that this Court would have to have very good reason to reach a different view.

MR LINDSAY: Your Honour, I do not suggest there is not an issue but the issue would have to be determined by reference to the language of section 111B and it would have to be held that such a provision which would perhaps displace ordinary rules about costs would be "necessary to enable the performance of obligations."

KIRBY J: You see, the Convention would operate in most cases in a unitary state but in Australia it has to operate in the complications of a federal State. Public officers of the State paid out of the consolidated revenue of the State accept certain obligations to do certain things It may be that the price of their doing so in negotiation with the Commonwealth was that they would be given immunity from costs and that, therefore, this is within Australia, in the federal sense, necessary to effect the carrying out of the Convention.

MR LINDSAY: That still raises the question of the interpretation of section 111B, but it also raises another matter which, perhaps, should be noticed, and that is on the construction of Regulation 7. The text of Regulation 7 suggests that it is simply intended to protect the holder of a particular office from orders against the person, personally, as distinct from the office. We would submit that was the effect of Regulation 7, to protect, in effect, the public servants rather than the institution standing behind them. The indication to the contrary, or an indication to the contrary, may be in the marginal note which is expressed in more general terms.

In our submission, at the end of the day, though, the question really comes back to whether or not there was a sufficiently clear intention to cut down section 26. We submit there was not. When one finds that there is some jurisdiction, this application, in our submission, can have no legs because it has conceded, in essence, that (a) there was a discretion, and (b) there were no good grounds for exercising jurisdiction or discretion in favour of the appellant on the merits. In those circumstances, bearing in mind that the matter could have been dealt with on the previous occasion, it would be our submission that the Court should not interfere with the order for costs that was made.

One matter that I should deal with since it has come up on the facts: it is true that the appellant had a grant of legal aid in respect of the hearing in the appeal, but that grant dated from 13 August 1996 so that it did not cover the application for special leave, and that was, I think, on 5 August, and nor did it cover the application for a stay which came before Justice Gummow on 4 April. We would also submit that in considering this question, in any event, whether or not there was or was not a grant of legal aid, as a matter of principle, is not something that can sway the issue and we would submit that the reference to legal aid to that extent is irrelevant.

So far as reference to section 9 of the Costs Act is concerned, if the order was for costs made by the Court were set aside, we certainly would seek an order under the Act, but it should not, and I do not think it seriously is suggested, that that is a complete substitute for the order for costs we have bearing in mind that there is this limit on its operation, said to be $6,000.

KIRBY J: Presumably, Regulation 7 is expressed in the general terms that are used because the central authority or the State central authority may, from time to time, have to make applications to State courts, Territory courts, the Family Court, Magistrates Courts, and that therefore the protection is expressed in very general terms addressed to the world at large. Would that be so?

MR LINDSAY: The general proposition that it is expressed generally has some force. Ultimately we would say that would not displace section 26. The other aspect of what your Honour put to me about applications being made in other courts, I am not sure that that is strictly correct because the applications that are made are made under the regulations and in the Family Court.

KIRBY J: But may they not, for example, if a restraining order was sought in a Magistrates Court, have certain functions to go to the Magistrates Court and say, "This is a matter which has to be dealt with under the Convention"?

MR LINDSAY: To that extent, yes.

KIRBY J: You say section 26 was not displaced, but why is it necessary to interpret section 7 as displacing section 26 as distinct from governing the way in which in this particular the costs discretion is exercised?

MR LINDSAY: If we get to that stage that part of the case really leaves the Commonwealth argument, in our submission, with nowhere to go because, if we are dealing with things at that level, we are dealing with a case where it was accepted that there were merits in favour of a costs order in favour of the appellant. If it is just a discretionary factor, it is open to the Court, was open to the Court, remains open to the Court to adhere to the costs order made on the 10th.

KIRBY J: I put it poorly. Section 26 normally grants a general discretion, but why does not section 7 simply cut out in the particular case of costs orders against this particular authority the discretion to provide costs?

MR LINDSAY: If we are dealing with it at that level, it is a question of construction and validity. It goes to jurisdiction and we would submit that to effectively cut down or to invalidate by another means, if you like, section 26, it would be necessary for there to be clear indications that the general discretion of the Court was to be taken away. If it is purely a matter for discretion, namely this is a factor to be taken into account and we should all be very careful about putting burdens on the central authority, then in those circumstances it is literally something that depends on the facts of the case and, in our submission, there were merits and remain merits to support the order that was made.

Your Honours, if there are any written submissions, we would seek a short time after the Attorney's submissions to respond if appropriate. May it please the Court.

BRENNAN CJ: I do not understand that, Mr Lindsay.

MR LINDSAY: There was some suggestion on behalf of the Solicitor that he would seek an opportunity to make some submissions after today on some questions that have arisen. I am seeking simply to reserve our position if there are such submissions to respond within a reasonable time.

BRENNAN CJ: Yes.

MR LINDSAY: May it please the Court.

BRENNAN CJ: Mr Solicitor.

DAWSON J: Could I be quite clear, Mr Solicitor. You are saying that there is no power under section 26 to make the order that was made in the light of Regulation 7.

MR GRIFFITH: Your Honour, I should make myself clear. What we say, your Honour, on section 26 is that the grant of jurisdiction should not be confused with the conferral of a discretion. So that section 26 enables this Court to decide the matter according to applicable legal principles. So we say, for example, your Honours, that in proceedings under the Family Law Act other than proceedings under the regulations as here, the Court would be bound, we would submit, by section 117 in exercising its jurisdiction. We say in those situations it would not be said that there was inconsistency between section 117 and section 26 would need to be resolved, it was merely a matter of the Court exercising the widest jurisdiction but with a discretion as defined by section 117. We submit, your Honour, that the position should be regarded as the same with respect to the operation of Regulation 7. Perhaps the way Justice Kirby put it - - -

DAWSON J: In other words, we have a power to make an order for costs but in our discretion, having regard to Regulation 7, we should not exercise it.

MR GRIFFITH: Your Honour, what we say is that the - - -

DAWSON J: Is that right?

MR GRIFFITH: Your Honour, I put it a bit higher now and say the jurisdiction is given by section 26 to exercise a discretion.

DAWSON J: And jurisdiction is only power.

MR GRIFFITH: Yes, your Honour, there is a power, but the power is - - -

DAWSON J: But we have power to make the order - - -

MR GRIFFITH: - - - according to law. It is not a submission without restriction. We say, your Honour - - -

DAWSON J: But the power to make the order we made is not removed by Regulation 7, is that the position?

MR GRIFFITH: No, your Honour, it is really the reverse. What we say is that the power under section 26 is a power to be exercised in conformity with section 117 in a matter arising under the Act.

DAWSON J: As a matter of discretion.

MR GRIFFITH: Your Honour, it might be a matter of how it is expressed to say that it is merely discretion or to that extent - - -

DAWSON J: Either you have power or you do not. You say we do have power.

MR GRIFFITH: Your Honour, for example, the Court's original jurisdiction under section 7 of Part III of the Constitution is defined, but our submission is - or will be later in the week, your Honour, that laws of the Parliament can make provision as to how that jurisdiction might be exercised.

DAWSON J: They can modify or qualify or remove the power.

MR GRIFFITH: Yes.

DAWSON J: But you say that has been done here?

MR GRIFFITH: Your Honour, we say section 117 in matters of appeal under the Act does that and we would - - -

DAWSON J: What about Regulation 7?

MR GRIFFITH: We say Regulation 7 within power, for the reasons we have shortly adumbrated, would also do that in respect to matters under the Convention.

DAWSON J: So we have no power to make the order we did.

MR GRIFFITH: I come to that, yes, your Honour, after a shaky start.

McHUGH J: I think you have got to say that, but my recollection is that we have often made orders for costs on special leave applications notwithstanding section 117 on the basis that it is not a proceeding under this Act.

GUMMOW J: That is right.

MR GRIFFITH: Special leave, of course, your Honour, is in a special position because it is not a proceeding, it is not an appeal. So we would accept what your Honour puts as being not in disconformity.

McHUGH J: But the difficulty seems to me in your way is that section 26 gives an unfettered power to the Court, no doubt to be exercised in accordance with principle. If you are right about section 117, it may cut down the exercise of that discretion. It is another proposition altogether to use a regulation-making power to cut down a power authorised by statute. I thought that the cases held that a regulation cannot be inconsistent with, it has been said, even the general law, including the common law - although I doubt the validity of that. But certainly it cannot be inconsistent with a statutory power, can it?

MR GRIFFITH: Your Honour, perhaps saying "inconsistent" begs the question. What we say is it should be read so as not inconsistent but - - -

McHUGH J: But you cannot get it around it that way, Mr Solicitor. If Regulation 7 has any operation here it must cut down the discretion which section 26 confers on the Court. If it is to be read according to its term, it says to the Court "notwithstanding the power in section 26, you shall not make an order for costs against the central authority".

MR GRIFFITH: Your Honour, we would like to put it that the jurisdiction remains but the ambit of discretion is reduced. The overall jurisdiction is to make orders for costs but in this aspect the discretion was reduced by the operation of Regulation 7.

BRENNAN CJ: Is this what you are saying, that if somebody comes to the Court in these situations and says, "We ask for an order for costs", it is within the jurisdiction of the Court to consider that application?

MR GRIFFITH: As an application.

BRENNAN CJ: And in that sense, that is all that section 26 does. Then, when it comes to the question of the exercise of the jurisdiction, the Court is bound by Regulation 7. Is that the proposition?

MR GRIFFITH: That is the principal way I now put to your Honour, but my fallback is to say in any event the Court should exercise its discretion having regard to Regulation 7.

BRENNAN CJ: Putting it that way, do you not have to meet the question of whether or not it is open to the Parliament to authorise or, perhaps putting it another way, is it a correct construction of section 111B to understand that it does authorise the making of a regulation which would so affect the power of this Court in the exercise of section 26 jurisdiction?

MR GRIFFITH: We would submit it is a matter of construction, the second way that your Honour put it, of section 111B, and for the reasons we briefly stated in dealing with the argument of necessity, we say that that is the construction to be applied here.

KIRBY J: Why would it not be a correct principle, given the function of this Court and the function illustrated by this case, to say that if Parliament intends to confer such a rule-making power, or anything else that derogates from section 26, it could be expected that Parliament would say so in plain terms?

MR GRIFFITH: Your Honour, we would say the answer to that is because of the curious way in which the Convention obligation has been enacted. It was not enacted, for example, in respect of the same terms as the UNCITRAL model or on commercial arbitration, namely, have a principal Act enacting as a schedule the terms of the Convention itself. Section 111B is a curious provision, for it merely provides for regulations to be made to bring into force the Convention. As your Honours know from the course of argument before the Court on construction, rather than the Convention, itself, being the text of the regulations, as for example, happens in Canada and other enacting countries, the regulations paraphrase and enact in appropriate language the substance of the provisions of the Convention, thereby giving rise sometimes to arguments as to whether there is conformity or disconformity as has happened in this case.

Your Honour, we would say that having regard to the particular way in which the Convention is enacted, and the particular object of it, and we refer again to the article 26 which provides that the receiving country of request is to bear the financial burden of acting on request, it is appropriate to regard this provision as having the requisite status of legislative intention.

McHUGH J: Well, you would hardly think that 111B would authorise a regulation which said that no appeal could be taken to this Court from a decision in the Family Court under these regulations. So, why would you not take the view that Parliament did not intend to cut down the cost making?

MR GRIFFITH: Your Honour, because of the costs elements we have referred to involved in the Convention that there is an international obligation where the costs are taken inboard in Australia and central authorities are set up to vindicate the operation of the Convention and we say for the reasons that we have argued that it appropriate for central authorities to discharge that duty arising from the terms of the Convention as enacted by the Parliament through section 111B and the regulations that it should not be inhibited by risks as to costs. That is really the essence of what we say. Your Honours, in the event that the Court does reserve its decision we were intending to respond to the two matters raised by Justice Kirby which, not so much submissions, but just statement in answer to the two questions raised by his Honour. They will not be arguments. They will just be responses.

BRENNAN CJ: Yes, thank you, Mr Solicitor. The Court will reserve its decision in this matter.

AT 11.10 AM THE MATTER WAS ADJOURNED