Cramer v Davies A38/1996 [1997] HCATrans 417 (11 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A38 of 1996

B e t w e e n -

DEBORAH ANNE CRAMER

Appellant

and

ROGER PHILIP DAVIES

Respondent

Application by respondent for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth)

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 11 DECEMBER 1997, AT 2.32 PM

Copyright in the High Court of Australia

MR N.W. MORCOMBE, QC: If it please your Honour, I appear with MR P.HARRIS, in this matter. (instructed by Thomson Playford)

HIS HONOUR: Good afternoon.

MR MORCOMBE: Your Honour, this is an application by the husband for two costs certificates and the orders sought are as set out in the summons issued on the 24 September 1997.

HIS HONOUR: This is a burgeoning file, so you will just have to bear with me whilst I make sure I have the summons, which will be the starting point. Yes, that is the summons dated the 24 September 1997, filed by Thomson Playford on behalf of the respondent to the appeal, that is to say your client, Dr Davies.

MR MORCOMBE: Yes, your Honour.

HIS HONOUR: Yes, very well. We have the summons. Now, what is the affidavit and other evidentiary material on which you move in support of the summons. Would you just identify that?

MR MORCOMBE: Yes, your Honour. There was an affidavit from the husband, Roger Davies, sworn 22 September 1997 - - -

HIS HONOUR: Yes, that is an affidavit sworn 22 September 1997. Yes, I have that and I have looked at that. You formally read that document.

MR MORCOMBE: Yes, your Honour.

HIS HONOUR: Yes, very well. There is no need for you to read it. I have read it.

MR MORCOMBE: Thank you. Your Honour, this is a proceeding in an appeal before the High Court which was resolved last year, the day before it was due for hearing by your Honours in Canberra. On the 2 October 1996, the matter was resolved between the parties and an affidavit was forwarded to the Court consequent upon which, I understand, consent orders were then made by the Court on the 3 October 1996.

HIS HONOUR: I have that Court order in the Court file.

MR MORCOMBE: Yes. And that order was made without the attendance of the parties or representatives. In fact, at that stage the husband was acting for himself, but the point is, no one attended in Canberra and I understand the order was made in chambers by consent.

HIS HONOUR: Yes. That was made pursuant to the determination by the Court constituted by Justices Dawson, Toohey, McHugh, Gummow and myself on the 2 October 1996, when there was handed to the Court, as the Court record shows, the certificate from the Senior Registrar certifying to the agreement between the parties and, I think, placed before the Court an affidavit by Peter Brian Wells, solicitor, sworn the 27 September 1996. Have you seen that affidavit?

MR MORCOMBE: I have, your Honour.

HIS HONOUR: It is an affidavit made with the written consent of the parties and, I think, also of the separate representative.

MR MORCOMBE: Yes, that is so.

HIS HONOUR: In paragraph 11 it says:

Consent to orders in the terms set out.....has also been given by Raymond Matcham, solicitor, who is the separate representative who was appointed pursuant to the Family Law Act 1975 to represent the interests of the children - - -

MR MORCOMBE: That is the case, your Honour.

HIS HONOUR: I will take that as being before me too. You have no objection to me taking these file matters as being before the Court?

MR MORCOMBE: Absolutely, your Honour, yes. That is correct.

HIS HONOUR: Yes, very well. What is the point of your saying that the order which was taken out which merely, as I understand it, reflected the decision of the Full Court of this Court acting on the certificate from the Registrar, what is the point of saying that that was made in the absence of the parties? It simply reflected what the parties asked the Court to do.

MR MORCOMBE: Yes, but the point, your Honour, is that it may impact on whether there was a hearing within the meaning of section 6 and section 8 of the Federal Proceedings (Costs) Act 1981 . Whilst your Honour has that affidavit, I intended to take you to one section of it in a moment, but whilst it is handy, could I direct your attention - - -

HIS HONOUR: Is this the affidavit of Mr Wells or the affidavit of your client?

MR MORCOMBE: Mr Wells, your Honour.

HIS HONOUR: The affidavit of Mr Wells. Very well, I have that. What do you want me to look at?

MR MORCOMBE: In particular, paragraph 3 where it is there stated in the third line:

the respondent concur in the view that the Trial Judge erred in law in making the order of the 15 December 1995 for the reasons that, in the circumstances, she failed to give proper notice that the said order might be made and failed otherwise to accord procedural fairness to the Appellant.

Now, that too, in my submission, will be relevant when looking at the terms of section 6 of that Act.

HIS HONOUR: Yes.

MR MORCOMBE: Could I invite your Honour to turn to the Act?

HIS HONOUR: Yes, I have that in front of me.

MR MORCOMBE: In particular, if we could start at section 6, and your Honour will see that there are a number of elements within subsection (1) of section 6. The first is that there must be a Federal appeal and that is covered by section 3(1)(d) that a "Federal appeal" means:

an appeal to the High Court from a judgment of the Family Court.

That part is satisfied. Then there must be success on a question of law. In my submission, there was success on the question of law. The notice of appeal filed by the wife in this matter refers only to alleged errors of law. Your Honour may recall the occasion when special leave was granted in Adelaide in 1996 - - -

HIS HONOUR: Yes, I do indeed. I fear that I took a very active part in the healthy dialogue between the Court and counsel.

MR MORCOMBE: You did, your Honour, and I submitted, at that point, that the appeal was really a question based on the facts of the matter.

HIS HONOUR: Yes.

MR MORCOMBE: Of course, I lost that application for special leave and I have looked at the Court records and I have not been able to ascertain confirmation of my present submission that the appeal involved success on a question of law. Necessarily, my submissions in toto were rejected.

HIS HONOUR: But that is only purely on a tentative basis at the gateway of special leave. It is not, in any way, a conclusive determination of the issue, otherwise every special leave would lead on to success for the applicant, and they do not. The statistics deny that that is the case and experience does as well.

MR MORCOMBE: Yes, your Honour.

HIS HONOUR: But, I think the fact is that if an appeal succeeds on a point relating to the denial of natural justice to a party, then it succeeds on a point of law. That, I think, has been held. I have sat in cases where that has been held myself. Do you know those cases - that line of territory? I think there is a decision of this Court and there are certainly decisions of the New South Wales Court of Appeal that hold that the question of whether natural justice was accorded to a party is not a question of fact, it is a question of law.

MR MORCOMBE: That was my submission but I was not aware of the line of authority but I am happy to rest there.

HIS HONOUR: Yes, there is authority on the point.

MR MORCOMBE: Thank you. Perhaps, then - - -

HIS HONOUR: Assume that you get past the second gateway, you still have to get that the court that heard the appeal may, on the application, grant the certificate.

MR MORCOMBE: Yes, your Honour. Your Honour, in a narrow - - -

HIS HONOUR: Did we hear the appeal or did we simply hear the application for a consent order? Does "hear the appeal" mean that you have to hear it all out and reach a conclusion after a hearing on the merits? That is, as it seems to me, the matter that you have to address.

MR MORCOMBE: Yes, your Honour. Could I start those submissions by referring you to the decision of Lindner v Lindner (1985) FLC 91-638, which is a decision of Justice Purdy in the Family Court of Australia at Parramatta.

HIS HONOUR: Did you notify this case? I am not really aware of that decision. I do not think we have been told of your case - you have a list of cases there, do you?

MR MORCOMBE: Your Honour, I do not, and the reason that I do not is that I understand that case was referred to us by the Registry. Perhaps I still should have filed a list but I had assumed that it would follow.

HIS HONOUR: Just let me see if I have that.

MR MORCOMBE: Your Honour, it is a short passage and I suspect your Honour would be not significantly disadvantaged if you do not have it in front of you.

HIS HONOUR: Yes, it may be referred to in one of the other cases, I gather, and that may be how it was referred to you. I directed that you be informed of the cases that have been placed before me but I do not have it. However, you tell me what Lindner v Lindner say. Who is the decision maker?

MR MORCOMBE: Justice Purdy, your Honour, in the Family Court of Australia at Parramatta reported in - - -

HIS HONOUR: Very well. Sitting alone, was he?

MR MORCOMBE: Yes, your Honour.

HIS HONOUR: What does his Honour say?

MR MORCOMBE: His Honour is there examining an application under the Federal Proceedings (Costs) Act and, in particular, under section 10(3) of that Act. Your Honour will not be significantly disadvantaged if you do not have that decision in front of you.

HIS HONOUR: Yes, very well. You just tell me what the principle is.

MR MORCOMBE: There is a short passage. I mean, even on the basis that it was a decision under section 10(3) of the Act, it is readily distinguished on that basis. But as a starting point, at page 80,154, in the right-hand column at point 2, his Honour said the enactment, that is that Act:

is obviously designed to enable litigants to recoup costs through no fault of their own and which would otherwise be thrown away.

That being so, I feel the Court should be loathe to adopt a construction which will defeat this purpose. And, with respect, I adopt those words and, in my submission, it is possible to interpret the word "hearing" in a number of different ways. It could be interpreted narrowly to mean "You must have a court appearance and counsel must appear and the judge must initiate the proceeding". However, in my submission, such a narrow interpretation would defeat the purpose of the enactment. In this case, there has been an application for special leave. The notice of appeal was filed and the parties reached agreement prior to attendance in court on the scheduled day for hearing and I understand that 3 October was the scheduled day for hearing.

Now, as a matter of fact, instead of incurring significant costs, the draft order was consented to by the parties. In my submission, there is no reason in logic why, if the parties attended before your Honours in Canberra and appeared in the Court after the matter was called on and then consented to orders, they would be entitled to a certificate, at least in this regard of section 6, but if they were sufficiently pragmatic to have agreed the matter prior to setting off for Canberra, they should be denied. In my submission, it is an appropriate case, given the nature of the legislation, to adopt a broad interpretation of the word "hearing".

Your Honour has referred us to a number of cases, and I thank you for that. Those cases deal with section 10 of the Act and predominantly with the question of whether there has been a discontinuance, but the other case to which I would refer your Honour, which is amongst those referred to me, is the decision of Justice Gray in the Industrial Division of the New South Wales District Registry which is reported in (1985) 7 FCR 106. In that case, his Honour was dealing with an application for a certificate under the same Act and, in particular, under section 10.

As his Honour says at page 106 - there were two parts to this judgment - first, the proceedings had commenced and the parties had then reached agreement. That part of the proceedings has nothing to do with the application under section 10 and about point 8 on page 106, his Honour then went on to refer to the application for a certificate under section 10 and, in particular, I refer your Honour to page 107, about halfway down the page his Honour there sets out subsection (3) of section 10 of the Federal Proceedings (Costs) Act, and then goes on to say:

The first question which arises is whether the hearing can properly be said to have been "discontinued", within the meaning of the section. Although, in a sense, the hearing had not actually begun -

that is the earlier hearing had not actually begun -

it had been specially fixed for a particular date, time and place, and it did not proceed at the appointed time, on the appointed date, at that place, or at all. In those circumstances I have no hesitation in holding that the hearing was discontinued, within the meaning of that word - - -

His Honour there accepts that there was a hearing. He did not find there was no hearing and, therefore, I do not have to look at whether there was a discontinuance. His Honour found that the hearing was discontinued. And his Honour went on to grant the relevant certificate. In my submission, that broad interpretation of the meaning of the word "hearing" is the appropriate one in legislation such as this. Clearly, on those facts, on a narrow interpretation there had not been a hearing; his Honour went on to find that there had been.

Your Honour, there are two other decisions to which you have referred me but they are, in my submission, simply - and I refer, in particular, to the marriage of T.A. v D.N. Redshaw (1989-1990) 13 FLR 495. I do not propose to read from these, your Honour, but if I can just ensure you have the references. Redshaw is a decision by Justice Mullane in the Family Court giving his particular application of the word "hearing", and as to whether he would wish to take a narrow or a broader meaning of that word. On the second page of the report, his Honour referred back to the case of Lindner, which I have earlier referred.

The other case, your Honour, is Re Morris and Another (1986) 66 ALR 699, which is a decision of Justice Muirhead in the Federal Court of Australia in 1986. Again, it is a decision under section 10 of the same Act, and his Honour there held that an adjournment was not a discontinuance of the hearing of the application. In my submission, whilst it does address the question of whether there was a hearing, on the second page of that report, that is at page 700 at the bottom of the page, his Honour said:

The adjournment I granted was not a discontinuance of the hearing of the application. The hearing had not commenced. Nor did I order a "new hearing" as a hearing had neither been conducted nor initiated. I simply postponed the hearing to a later date.

Your Honour, if I was appearing before a single judge of the Federal Court and there were no other authorities on the matter, then the case of Morris may well be a stumbling block for me. But, in my submission, this is an opportunity for your Honour to take a broader view of the word "hearing" in the Act.

If it please, those are my submissions on that point unless your Honour wishes me to address further.

HIS HONOUR: What do you say is the objective of the Act because I imagine that the word being ambiguous, I have to try to construe the word, the court "heard" the appeal, in order to give effect to the purpose of the Act. On the one hand you could say, "Well, it would be a bit foolish to require parties who have conceded, after a special leave application has been granted, to go through a charade of presenting their arguments in order to defence their position under the Costs Act". On the other hand, it would have been easy for Parliament to have said, "The court that makes the order disposing of the appeal may provide for a costs order under the Federal Proceedings (Costs) Act". Instead they have enacted that it is necessary that the court should have heard the appeal.

Did that import the notion that the court has to have, as it were, heard the matter, heard it on its merits and put itself in a position where it can reach the conclusion that the appeal is one that should succeed on a question of law as an assurance that the consolidated revenue will not be burdened unfairly to require the community to pay the costs, as distinct from the normal parties that have to pay the costs, being the parties to litigation?

MR MORCOMBE: Your Honour, I have been trying to think of a reason why that might be so and I have not been able to find an answer. Indeed, the answer would seem to be to the contrary. That is, the Parliament would be keen to limit the amount of money to be paid out. It would be anxious to encourage parties to resolve their differences prior to a one or two or three day hearing in court with parties and advisers present and to find that there was no hearing in this case would be a discouragement to parties to curb the costs of legal expenses.

Going back to your Honours earlier question, "What is the object of the Act", it would seem , I suggest, that the object is to compensate the parties who have been put to expense through no fault of their own. Now, presumably, the basis of providing for the Commonwealth revenue to make some compensation to parties where there has been a successful appeal in relation to a question of law and does not include a successful appeal based on fact, would suggest that the Commonwealth is attempting to compensate parties where, to put it bluntly, the judge got it wrong in respect of the applicable law.

HIS HONOUR: Which is the section that applies in this case, is it section 6 or section 9, section 9 being the costs certificate in family law proceedings.

MR MORCOMBE: Section 6, your Honour, because section 9 commences by saying:

Subject to this Act, and in particular without limiting section 6 - - -

HIS HONOUR: But is it not the particular provision that is dealing with family law proceedings? What work does section 9 do that section 6 does not do?

MR MORCOMBE: I think it does not bear on the question of whether there is an appeal on a question of law, your Honour.

HIS HONOUR: Is this a matter where, ordinarily, each party would, under section 117 of the Family Law Act, bear his or her own costs?

MR MORCOMBE: I think that is the answer, your Honour, because it is not uncommon in the Family Court under section 117 for the parties to bear their own costs.

HIS HONOUR: Well, now, in this case the actual order made by this Court was an order that there be no order as to costs in respect of the application for special leave to appeal or the appeal to this Court.

MR MORCOMBE: Yes, but that was not in accordance with section 117, your Honour. It was a decision of the parties. Section 117, I think, requires an order of the court.

HIS HONOUR: I am just not sure whether I am supposed to be operating under section 9 or section 6.

MR MORCOMBE: I would suggest section 6, your Honour, because there has not been an order under section 117 of the Family Law Act. Paragraphs (a) and (b) are conjunctive, so there needs to have been the parties bearing their own costs, in accordance with section 117, and that has not happened in this case. They are bearing their own costs, not by virtue of section - - -

HIS HONOUR: But is not that the effect of section 7 as ordered by this Court? Rather, paragraph 7 of the order that was made, the consent order, which later became the order of this Court, says:

There be no order as to costs with respect to the application for special leave to appeal to the High Court- - -

Now, is that when it was translated into the order of this Court, an order in accordance with section 117 of the Family Law Act, that each party to the appeal bears his or her own costs.

MR MORCOMBE: Yes, I see your Honour's point and, frankly, it had not occurred to me previously because section 117 generally operates at trial, and I had not applied my mind to that.

HIS HONOUR: I do not have the Family Law Act with me at the moment. Do you have that Act with you?

MR MORCOMBE: I just asked the same question and I do not, your Honour. We can get it from the library, your Honour, but it will take a few minutes.

HIS HONOUR: I think you had better do that. If you could send your solicitor to get the Family Law Act because we had better have a look at section 117 to make sure that it is not relevant to the exclusion of section 9 of the Federal Proceedings (Costs) Act so that we would then be back into the position of section 6 of the Federal Proceedings (Costs) Act. I think in your summons you are seeking orders or certificate, both in respect of the proceedings in the High Court and in the Family Court. Is that correct or not?

MR MORCOMBE: Yes, it is, your Honour. Under section 6 we - - -

HIS HONOUR: What is my authority to make an order in respect of the costs in the Family Court?

MR MORCOMBE: Section 11 of the Act, your Honour.

HIS HONOUR: I see. Now, it has been drawn to my notice that section 9 only applies to the appellant, not the respondent. Is that correct? "grant to the appellant a costs certificate", and you were the respondent to the appeal so that section 9 can be put to one side because I do not have any such application before me.

MR MORCOMBE: Yes, that is right, your Honour.

HIS HONOUR: Section 6 is the one you rest on, being the general provision in respect of federal appeals and you say that the definition of "Federal appeals" picks up an appeal to the High Court from the Family Court in (d), is it, from a judgment of the Family Court? And that in terms of the costs orders in the Family Court, you pick that up by section 11 which refers to a sequence of appeals.

MR MORCOMBE: Yes, your Honour.

HIS HONOUR: Is there any previous authority of this Court in respect of the Federal Proceedings (Costs) Act that you are aware of?

MR MORCOMBE: Not that I am aware of, your Honour, no.

HIS HONOUR: You may know that I directed the Registrar to give notice to the Commonwealth in case, either to assist the Court or to seek to intervene to defend the fund. The Commonwealth wished to make submissions to the Court but I understand that no such request has been made and that the Commonwealth is content to simply leave the matter to the Court to resolve the matter between your submissions and my determination.

MR MORCOMBE: I was not aware of that, your Honour, but I can tell you that I have had no contact with the Commonwealth.

HIS HONOUR: You have or you have not?

MR MORCOMBE: I have not, your Honour.

HIS HONOUR: No. Well, there is no reason why you should. Very well. Is there anything else that you wish to say, Mr Morcombe?

MR MORCOMBE: The next application, your Honour, is under section 8, which is in similar terminology and that is the application on the second page of the summons wherein we seek a costs certificate pursuant to section 8 of the Act in relation to the new trial which was a part of the order of the High Court. If one then turns to section 8, your Honour will find similar provisions. There must be a federal appeal, there must be success on a question of law and the court that hears the appeal must grant a new trial in a cause of a civil nature. Just leaving to one side my earlier submissions about the court that heard the appeal, clearly in this case there has been a granting of a new trial and, in my submission, clearly it is in a cause of a civil nature.

HIS HONOUR: What is the measure of the costs that would be provided by a costs certificate, are you aware?

MR MORCOMBE: Yes, I am, your Honour. They are provided by the Federal Proceedings (Costs) Regulations, which came into force on 1 September 1991 and in the High Court it is to a maximum of $10,000 - - -

HIS HONOUR: And the costs of a new trial?

MR MORCOMBE: In the Family Court, it is to a maximum of $4,000.

HIS HONOUR: So that the net effect, if you were granted these two certificates, would be that the maximum liability of the Commonwealth would be of the order of no more than $14,000? The $10,000 to be for the costs of the proceedings in the High Court if they ran to so much for the special leave and the appeal and the Family Court new trial of $4,000. Or would it cover the costs in the Family Court of the trial that went awry before Justice Murray and the Full Court.

MR MORCOMBE: No, we are not seeking any order in respect of those costs, your Honour.

HIS HONOUR: It is simply the costs in this Court, is that correct, and the certificate under section 8 for the new trial?

MR MORCOMBE: And the Family Court appeal, your Honour. If I could just take you back to the summons - - -

HIS HONOUR: This being on the basis that the matter ought to have been corrected when it went to the Full Court of the Family Court. That is where the matter went wrong from the appellant point of view and had to be corrected by the order of this Court?

MR MORCOMBE: Yes, your Honour. The Full Court maximum would be $4,000, the High Court maximum would be $10,000 and the new trial would be $4,000.

HIS HONOUR: Is it plain that the special leave application is a hearing that is covered by the order, it not being actually an appeal?

MR MORCOMBE: Yes. I am just looking at - - -

HIS HONOUR: Presumably this would be picked up by the regulations.

MR MORCOMBE: Yes. I also suggest it would be picked up by section 11, your Honour, where there is a sequence of appeals. I appreciate the point that it is not strictly an appeal but it is a part of the appellant process and unavoidable. And, in support of that submission, the term in section 11 is "in relation to" and that is a term which is generally interpreted in a fairly wide manner.

HIS HONOUR: Yes. Is there anything else that you wish to say in support of this summons?

MR MORCOMBE: If it please, there is not.

HIS HONOUR: Thank you, Mr Morcombe.

I have before me a summons by which the respondent to an appeal to this Court seeks costs certificates under the Federal Proceedings (Costs) Act (Cth) (the Act). The application is made pursuant to s 6 of the Act in relation to costs incurred before the Full Court of the Family Court of Australia, on the successful special leave application to this Court and in relation to the appellate proceedings in this Court when orders were made setting aside the orders of the Full Court of the Family Court. A costs certificate is also claimed, pursuant to s 8 of the Act, in relation to the new trial of the proceedings between the parties which was ordered by this Court.

The facts

Before considering the legal issue which is presented by the summons, it is necessary to say something about the facts. On 15 December 1995 in Adelaide, Murray J in the Family Court of Australia was engaged in the trial of proceedings between Ms Deborah Cramer and Mr Roger Davies. Mr Davies had applied, and Ms Cramer cross applied, for sole custody of the children of their marriage. The hearing of these applications had commenced on 4 September 1995.

At the hearing on 15 December 1995 Mr Davies had not closed his case. Ms Cramer, and a separate representative who had been appointed under the Family Law Act 1951 to represent the interests of the children, had not opened their respective cases. Mr Davies was legally represented. Ms Cramer was not. On the morning of the hearing, Murray J made it clear that she was not dealing finally on that day with the applications for custody. She stated to Ms Cramer, "We are dealing at the moment with the application by the Department of Family and Community Services for an extension of interviews with the two children. Now, that is the only application which is before me at the moment and at the rate we are going, I am not even going to be able to decide that. We can only go till this afternoon."

Before the luncheon adjournment it became plain that Ms Cramer was upset. She appeared to be upset by certain questions which had been addressed to her during the hearing. Those questions concerned Ms Cramer's psychiatric state. During the luncheon adjournment Ms Cramer, in the course of an emotional outburst, said that she was withdrawing from the case and giving up. The outburst occurred in the presence of Mr Davies, his lawyer, the separate representative for the children, a witness who was then being examined and the representative for the Department of Family and Community Services, which Department had also intervened in the proceedings. It also appears that it was recorded by the sound recording equipment used for transcript purposes.

Ms Cramer was observed to leave the court precincts in an upset state. She did not attend at the resumption of the hearing. When the hearing resumed, counsel for Mr Davies and the separate representative informed the court that Ms Cramer had withdrawn from the entire proceedings. Murray J then asked the witness being examined whether she had heard what had transpired. The witness responded that she had and that she had been in the room. The judge was then informed that, "The wife's words to me were to the effect that she was going to sue me or complain to me and so on and various threats."

Murray J did not have Ms Cramer called in the precincts of the court although that would presumably have been futile. She did not require the recording to be played. The intervener's application to conduct further interviews of the children was not heard and determined. Instead, at the end of the day, without any further notice to Ms Cramer that she intended to proceed to consider finally the custody of the children, Murray J made orders in that regard. Those orders followed an exchange with counsel for Mr Davies in the following terms:

HER HONOUR: In view of the wife absenting herself, the order is that the husband do have - it is your application [respondent's representative] because you are dux litis.

COUNSEL: Yes, your Honour.

HER HONOUR: Sole guardianship and custody, is that what you are asking for?

COUNSEL: If your Honour pleases.

Murray J gave no reasons for making the foregoing orders so important to the parties and to the welfare of the children concerned. The orders were the subject of an appeal by Ms Cramer to the Full Court of the Family Court. However, the Full Court declined to intervene in the orders made by Murray J. That Court was unconvinced by the complaint that Murray J had proceeded to deal, in the absence of Ms Cramer, with an issue which was not ostensibly before the court at the time that Ms Cramer had become upset and left.

Grant of special leave

This was the position when the application for special leave to appeal was made to this Court. The summons for that purpose raised a number of suggested questions for determination by this Court. They included whether a court, such as the Family Court of Australia, should make a final order as to the custody of children on the basis of the apparent withdrawal from proceedings of one party. The special leave questions expressed in these circumstances were whether such order should be made where notice of intention to deal with the application had not been given to one party, where that party was unrepresented at the time before withdrawing from the proceedings, where no notice of discontinuance or withdrawal had formally been lodged in the Family Court, where the withdrawal had apparently been made by a party in a distressed state and where the rights of the children involved, being a paramount consideration in the determination of the substantive application, were not, in the circumstances, fully ventilated and determined.

Special leave to appeal was granted to Ms Cramer. Her appeal was listed for hearing before a Full Court of this Court on 3 October 1996. However, on 27 September 1996 an affidavit was sworn by Mr Peter Wells, solicitor, and filed in the Court. The affidavit was filed with the consent of both parties to the appeal. It recited that written consent had been given to the course proposed by the solicitor who had been appointed as the special representative to represent the interests of the children. Mr Wells' affidavit recited the consent of the parties to the disposition of the appeal to terms which, with the concurrence of the separate representative, were to be placed before this Court. The affidavit further stated that the parties concurred in the view that the Full Court of the Family Court had erred in upholding the order of Murray J and dismissing the appeal from her order providing finally for the custody of the children. It recited that Ms Cramer, Mr Davies and the separate representative were all of the view that, by consenting to the orders, the parties were acting in the best interests of the children of the marriage in endeavouring to bring the matter to retrial as expeditiously as possible.

Consent orders dispose of the appeal

Mr Wells' affidavit, and a certificate from the Senior Registrar of this Court, were then placed before the Court on 2 October 1996. The Court on that occasion was constituted by Dawson, Toohey, McHugh, Gummow JJ and myself. The certificate recited briefly the background facts to which I have referred and the orders which the parties sought. When the matter was called, Dawson J recited that he had the certificate from the Senior Registrar certifying that she held a consent duly signed by the solicitors for the appellant, the respondent and the separate representative, to the making of orders in the following terms:

1. The appeal from the part of the judgment of the Full Court of the Family Court of Australia given and made on 29 March 1996 be allowed.

2. The judgment of the Full Court of the Family Court of Australia made on 29 March 1996 as far as it relates to orders for final custody be set aside in so far as the Court dismissed the appeal and in lieu thereof the appeal to that Court be allowed.

3. The order of the Full Court of the Family Court of Australia made on 16 August 1996 ordering costs against the appellant be set aside.

4. The order of the Family Court of Australia made on 15 December 1995 for sole custody be set aside.

5. The Family Court of Australia be directed to rehear the matter by a judge of that Court other than the trial judge and that the evidence taken in the trial be tendered to the trial judge on the retrial for consideration in the retrial.

6. The order of the Family Court of Australia made on 11 April 1996 as to the costs of the trial be set aside with leave to either party to argue the question of costs of the trial at the conclusion of the custody hearing in the Family Court.

7. There be no order as to costs with respect to the application for special leave to appeal to the High Court of Australia and the appeal to the High Court of Australia.

Dawson J, on behalf of the Court, proceeded directly to state: "And the Court makes the order accordingly". Subsequently, an order was taken out under the hand of the Deputy Registrar of this Court in terms of the foregoing orders.

Statutory provisions

The present summons was not filed until 24 September 1996. It seeks the certificates under the Act which are now claimed. Section 6 of the Act provides, relevantly:

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.

"Federal appeal" is defined under s 3(1) to mean, relevantly:

(d) an appeal to the High Court from a judgment of the Family Court;

Section 8 of the Act provides for costs certificates in respect of new trials. It will be observed that, by the orders of this Court, a new trial in the Family Court was ordered. Section 8 provides, relevantly:

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.

It is worth noting, also, s 11 of the Act. That section deals with a case where appeals occur in a sequence of proceedings:

11. A reference in section 6 ... to the costs incurred by a person in relation to a Federal appeal shall, where the appeal is in a sequence of appeals that includes an earlier Federal appeal or earlier Federal appeals, be read as including a reference to the costs incurred by the person in relation to that earlier Federal appeal or all those earlier Federal appeals.

When the summons was filed in this Court and assigned to me for hearing in the Practice List, I directed that notice be given to the Australian Government Solicitor on behalf of the Commonwealth so that, if the Commonwealth so decided, it could appear before the Court, either to seek leave to intervene to, in effect, defend the proper application of the Act or to present submissions as amicus curiae. See Australian Postal Commission v Dao [No 2] (1986) 6 NSWLR 497 at 513; Reid v Sydney City Council (1995) 35 NSWLR 719 at 724-725. The Commonwealth has elected not to seek such leave or to provide such submissions. The only party that has been represented before me today is Mr Davies. The matter has therefore proceeded as an ex parte application.

General purpose of the Act

So far as I am aware, and so far as counsel's researches have shown, there is no decision of this Court or of a Justice of the Court on the point in question. Reference has been made by counsel to a number of decisions of State courts on legislation of a kind similar to the Act, such as the Suitors' Fund Act (NSW). As was pointed out in Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491, legislation such as the Suitors' Fund Act 1974 and the Act presently before me represents a pattern of statute law which is now common throughout Australia.

The history and purposes of such legislation are explained in a number of law reform reports. See, for example, Victoria, Chief Justice's Law Reform Committee, Suitors' Fund Legislation 1962; Queensland Law Reform Commission Report on a Bill to Establish an Appeal Costs Fund 1972 (QLRC12); South Australia Law Reform Committee, the Enactment of an Appeal Costs Fund Act (SALRC31), and Western Australia Law Reform Commission, the Suitors' Fund Act 1951 Part A, Civil Proceedings 1976. In Mir Bros, at 494, in the New South Wales Court of Appeal I stated, in the context of the Suitors' Fund Act (NSW):

The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application is the relief of litigants against the costs inevitably incurred when appeal review discloses an error of law requiring correction. The object is to ensure that litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow.

See also Australian Postal Commission v Dao [No 2] (1986) 6 NSWLR 497 at 515.

I keep this general purpose in mind in approaching the meaning of the Act. In the end it is the language of the Act that will govern the success or otherwise of the applications before me. Section 6, which is the key provision, contains three preconditions to the grant of a certificate. The first is the existence of a "federal appeal". Having regard to the terms of the definition in paragraph (d) of s 3(1) of the Act, it is clear that the proceedings before the Family Court of Australia and before this Court were federal appeals. Secondly, it is necessary to establish that the appeal has succeeded on a question of law. Certainly, the appeal to this Court succeeded. It succeeded by virtue of the orders of this Court based upon the consent of the parties expressed to be with the concurrence of the separate representative.

The facts which I have earlier set out, being the foundation of the grant of special leave to appeal and of the appeal to this Court, suggest that the basis of the "success" was a recognition by all parties that an error of law had occurred at trial in the Family Court. At least in proceedings such as are described, it is an error of law where a judge does not conform to the requirements of procedural fairness (natural justice). See Escobar v Spindaleri (1986) 7 NSWLR 51. Therefore, the critical question is whether the third precondition to the application of the Act is made out. That requires that the court concerned should have "heard the appeal". Only where the court has heard the appeal may it, on the application of the respondent, grant to the respondent the costs certificate in respect of the appeal which is sought. Can there be a "hearing of the appeal" for this purpose where the orders disposing of the proceedings are made by consent and without full argument?

Arguments for a narrow construction

There being no binding decision which resolves the question, it is necessary to consider the language of the Act, having regard to its purposes and having regard to any issues of legal principle or legal policy which the terms of the Act suggest. A number of arguments may be mounted to support the proposition that the word "heard" in s 6, repeated in s 8(1), means a full hearing of the appeal on the merits. Those arguments include:

1. If the Parliament had meant that it was sufficient that the appellate court should merely have made the order allowing the appeal it could have so provided but, instead, it provided that the certificate could be granted only by a court that "heard the appeal."

2. The provision of the certificate is a benefit not normally enjoyed by a litigant; it is a benefit provided by statute on conditions. Arguably, one condition might be that the court which grants the certificate has reached its own satisfaction that it is proper to do so after having heard the appeal on its merits. Only then could the basis of the success of the appeal be determined, so that it could be said to be "on a question of law."

3. Unless such an approach were taken, parties could agree amongst themselves to dispose of appeals and thereby, in effect, burden the public purse by their agreement, as distinct from suffering the disadvantage of cost orders or the necessary incurring of costs as a result of legal error only ultimately demonstrated by a full hearing on the merits.

4. A narrow interpretation, protective of public funds, should be adopted given the high costs of litigation and the need to ensure that such funds are made available only in cases where the justification of a certificate is manifestly demonstrated by a full hearing of the appeal.

The broader construction should be preferred

As against these arguments a number have been presented to support the applications. I find them more persuasive. According to Mr Davies, a "hearing" means no more than having the matter listed before the Court so that it may dispose of the appeal in a public and formal way. The arguments in support of this interpretation are:

1. The narrower construction might force or encourage parties to go through the charade of a formal, even extended, hearing in a case such as, arguably, the present was, where it was plain that the appeal would succeed, and even where all parties agreed that such a hearing was futile and unnecessary, either to the parties, to the community or to the appellate court.

2. The Court did in fact "hear" the appeal in the sense of hearing and granting the application for special leave and having the appeal listed before it. It had before it the affidavit of Mr Wells filed, as stated, with the knowledge of all parties and of the separate representative. If the Court had itself any doubts as to the order that was being sought it could have indicated what those doubts were and even required the matter to proceed to a longer hearing of some kind. The inference was that the Court was satisfied that the appeal should be allowed. That satisfaction was, so it was suggested, sustained by the successful special leave application, which stands at the gateway of proceedings in this Court and by the material put before the Court to support the consent orders.

3. The general objective of the Act is remedial. It has been expressed as one designed to ensure that where errors of law occur in courts of law, which are not the fault of the parties but by definition the fault, if of anybody, of the administration of justice, the burden of costs which is invariably substantial should not fall upon the parties but should fall upon the community generally through laws such as the Act. See Lindner v Lindner [1985] FLC 80,153 at 80,154, Pickford v Incorporated Nominal Defendant [1981] VicRp 58; [1981] VR 583 at 584-585 and Coulson v Gosford Meats Pty Limited (1985) 7 FCR 106 at 107. Given the remedial nature of the Act, a narrow construction of its language would defeat the attainment of its objectives. A broad construction of the word "heard" would advance the attainment of those objectives. The latter should therefore be preferred.

The amount at stake in this application, as I have been informed, is no more than $18,000. That sum represents a maximum of $10,000 for the proceedings in this Court; $4,000 for the proceedings in the Full Court of the Family Court which miscarried; and $4,000 for the costs of a new trial in the Family Court. See Federal Proceedings (Costs) Regulations commencing 1 September 1991 which fixes the maximum that may be recovered. Although those sums are not themselves substantial by the measure of legal costs today, I have to consider that the interpretation which I adopt is one which may have implications for other cases. On the other hand, it is hardly likely that parties will concur in the orders allowing an appeal to this Court unless there is good reason for them to do so. Experience in appellate courts suggests, and in particular in appeals in family law matters, that they tend to be hard fought nowhere more so than in cases involving custody orders. Concurrence in orders allowing an appeal is typically only given where it is plain that the hearing of the appeal will inevitably result in such, or like, orders. In my view, such was the case in these proceedings.

I am therefore satisfied that the three preconditions to s 6 are made out. Similarly, the preconditions to s 8 are made out and by virtue of s 11 the costs incurred within s 6 of the Act relating to the costs in the Full Court of the Family Court come within the purview of the certificate which may be granted by this Court. No discretionary or other reasons exist to withhold the relief for which the Act provides. I would therefore grant that relief. See Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2] [1956] HCA 29; (1956) 95 CLR 106 at 113-114; Acquilina v Dairy Farmers Cooperative Milk Co Ltd (1965) 82 WN (NSW) (Pt 2) 531 at 532-533; Lauchlan v Hartley [1980] Qd R 149 at 152; R v Hookham [No 2] (1993) 32 NSWLR 345 at 346.

Orders

The orders which I make are:

(1) Grant a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) stating the opinion of this Court that it would appropriate for the Attorney-General to authorise payment to the respondent in respect of:

(a) the costs incurred by the respondent in relation to the appeal to the Full Court of the Family Court of Australia from the judgment and orders herein of Justice Murray;

(b) the costs incurred by the respondent in relation to the application for special leave to appeal to this Court from the judgment and orders of the Full Court of the Family Court of Australia; and

(c) the costs incurred by the respondent in relation to the appeal to this Court from the judgment of the Full Court of the Family Court of Australia.

(2) Grant a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 stating that in the opinion of this Court it would be appropriate for the Attorney-General to authorise a payment to the respondent in respect of such part of the costs incurred by the respondent in relation to the new trial ordered by this Court as the Attorney-General considers appropriate.

. . .

So far as the costs before this Court today are concerned, Mr Morcombe, I am not sure that I can make any particular orders, can I, in relation to those costs?

MR MORCOMBE: Yes, your Honour, and I invite you to do so. Under subsection 3(1) of the Act:

"costs", in relation to proceedings, includes:

(a) the costs of obtaining a costs certificate in respect of the proceedings.

HIS HONOUR: Where is that? I see, "costs".

MR MORCOMBE: Subsection 3(1) and (b).

HIS HONOUR: On the discretionary question, why would it not have been appropriate for the costs to have been sought or to the certificates to have been sought at the time that the matter was before the Full Court of this Court on the 2 September 1996? That would have meant that costs were then only the costs of one day before this Court whereas now the costs are costs of two days. Why should you get a second day?

MR MORCOMBE: I suspect that an order under this Act was the furthest thing from the parties' minds at that stage. I would also point out that Mr Davies was not represented at that stage and I can take instructions on it but I doubt that he was aware of the possibility of such a certificate.

HIS HONOUR: He may not have been but I wonder whether that is a matter that ought to have been considered and placed before the Full Court of this Court for the certificate on that day.

MR MORCOMBE: Your Honour, I suggest it would be appropriate to make an order, in effect, of these proceedings now. I remind your Honour that no one appeared before the court on the second or the third. If there was to be an application under this Act then someone needed to appear, in any event, and there was not anyone appearing on the second or the third. So, submissions would have been needed on the point.

HIS HONOUR: It says in subsection (1) of section 3:

"costs", in relation to proceedings, includes:

(a) the costs of obtaining a costs certificate - - -

Now, where is there reference otherwise to costs in relation to proceedings? Because, in section 6, it talks of:

grant to the respondent a costs certificate in respect of the appeal.

MR MORCOMBE: Your Honour, I suggest it does come within section 6 and I take your Honour down to paragraph 6(3)(a). Certainly it there refers to the costs incurred by the respondent in relation to the appeal. As far as I am aware there is nothing in the Act which specifically addresses the costs of this application but I would suggest that given the nature of the remedy in the Act, combined with section 3(1), then it would be appropriate to perhaps include these costs in paragraph (1)(b) of the order which your Honour just made. That is to expand (1)(b) to make it clear that costs of obtaining this certificate are included. It does not expand the - - -

HIS HONOUR: I am happy to do that, given the way in which the matter has proceeded but I want to have a foundation for doing it and the foundation does not, at least at the moment, seem to be in section 6. Now, it is true that the definition of costs includes costs of obtaining a cost certificate in respect of the proceedings but where, when we go to section 6, both in subsection (1) and in subsection (3), it talks of costs in relation to the appeal. Where is the foundation for me to make an order that the certificate includes the costs of obtaining this costs certificate? It does seem to be implied in section 3(1) but I just do not see where the substantive order has its foundation and I feel uncomfortable about making an order without a foundation for doing so. It is an old-fashioned feeling that judges have.

MR MORCOMBE: Your Honour, can I take you back to paragraph 3(1)(a)?

HIS HONOUR: Yes.

MR MORCOMBE: Where it refers to:

the costs of obtaining a costs certificate in respect of the proceedings -

and "proceedings" is defined further on to mean, it "includes a Federal appeal and a trial". Incorporating that into 3(1)(a), costs includes the costs of obtaining a costs certificate in respect of a federal appeal. Then in - - -

HIS HONOUR: Yes, very well, I am satisfied.

MR MORCOMBE: Thank you, your Honour.

HIS HONOUR: What were you going to say?

MR MORCOMBE: I was going to then take you to section 6 again, your Honour.

HIS HONOUR: Yes, very well, I have seen that.

. . .

Costs

Application is also made for an order that the costs certificate earlier provided by order (1) include the costs of obtaining such costs certificate. By s 3(1), the Act provides that:

"costs", in relation to proceedings, includes:

(a) the costs of obtaining a costs certificate in respect of the proceedings.

In the same subsection, "proceedings" are defined to include "a Federal appeal". "Federal appeal", as I have already stated includes:

an appeal to the High Court from a judgment of the Family Court -

and:

an appeal to the Full Court of the Family Court from a judgment of the Family Court.

By subsection 6(1), this Court is empowered to:

grant to the respondent a costs certificate in respect of the appeal.

By the combination of these provisions, in relation to the costs in respect of the appeal, embracing as they do the costs of obtaining a costs certificate, it seems clear that it is the intention of the Parliament that the costs that have been incurred in obtaining the costs certificate in respect of these proceedings should be within the order granting the certificate. The only possible reason for not so providing would be the discretionary one, that the application could have been made at the time the matter was before the Full Court of this Court on 2 October 1996.

However, in the event, it has proved more economical of this Court's time that the issues raised by the application for the costs certificates should have been dealt with by a single Justice. I therefore think that it would be unjust to deprive the respondent, the applicant before me, of the costs of his application on that basis, particularly, in the light of the fact that the Act appears to indicate the intention that the costs of obtaining the costs certificate should, in a proper case, be included within the definition of "costs".

I do not believe that it is necessary to enlarge the orders which have already been made. The costs incurred by the respondent in relation to the appeal to this Court will, by the Act, include the costs that have been incurred in obtaining a costs certificate in respect of the proceedings. The orders which I have indicated are therefore the orders of the Court.

MR MORCOMBE: Thank you, your Honour.

HIS HONOUR: Is there any other order that you ask?

MR MORCOMBE: No, thank you, your Honour.

HIS HONOUR: Very well. The orders which I have announced are the orders of the Court.

AT 3.57 PM THE MATTER WAS CONCLUDED