Re: The Honourable Justice Faulks of the Family Court of Australia and ORS Ex parte: Victoria Legal Aid M74/1997 [1998] HCATrans 17 (11 February 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M74 of 1997

In the matter of -

An application for a Writ of Prohibition against THE HONOURABLE JUSTICE FAULKS OF THE FAMILY COURT OF AUSTRALIA

First Respondent

JJT

Second Respondent

TGL

Third Respondent

IML & NL

Fourth Respondents

Ex parte -

VICTORIA LEGAL AID

Prosecutor

GAUDRON J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 FEBRUARY 1998, AT 10.17 AM

Copyright in the High Court of Australia

_______________________

GAUDRON J: We are honoured to have sitting with us today Justice Goldstone, a Justice of the Constitutional Court of South Africa and former Prosecutor at the International War Crimes Tribunal at The Hague. Justice Goldstone will sit with us for as long as the proceedings attract his interest and will leave at his convenience.

If you would call the matter for hearing, please.

MS S.M. CRENNAN, QC: If the Court pleases, I appear with my learned friend, MR P.J. HANKS, on behalf of the prosecutor, Victoria Legal Aid. (instructed by Victoria Legal Aid)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR N.D. HOPKINS, for the Attorney-General for the State of Victoria intervening in the interest of the prosecutor. (instructed by the Victorian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear on behalf of the Attorney-General for Western Australia with my learned friend, MS C.F. JENKINS, intervening in support of the prosecutor. (instructed by Crown Solicitor for the State of Western Australia)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia : May it please the Court, I appear with my learned friend, DR G.L. EBBECK, for the Attorney-General for South Australia intervening in support of the prosecutor. (instructed by the Crown Solicitor for South Australia)

MR L.S. KATZ, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, DR A.S. BELL, for the Attorney-General for the State of New South Wales, intervening in the interest of the prosecutor. (instructed by the Crown Solicitor for New South Wales)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MS C.E. MOLYNEUX, QC and MR C.M. CALEO, for the third and fourth respondents. (instructed by Hogg and Reid)

MR H.C. BURMESTER: May it please the Court, I appear for the Attorney-General for the Commonwealth with MR J.S. STELLIOS, intervening in support of the respondent. (instructed by the Australian Government Solicitor)

GAUDRON J: I have a certificate from the Senior Registrar, who certifies that she has been informed by the Australian Government Solicitor, solicitor for the first respondent in the above matter, that the first respondent does not intend to make any submissions to the Court and submits to any order, save as to costs. She also certifies that she has been informed by McCluskys, solicitors for the second respondent in this matter, that the second respondent does not intend to make any submissions at the hearing of the matter. Yes, Ms Crennan.

MS CRENNAN: If the Court pleases. The order in which we would propose to proceed is to deal with our argument in the following way; first of all, we would say something, briefly, about the circumstances of this case. We would also deal, in that context, with the application for prerogative relief. Secondly, we would propose to summarise our case, dealing as we go, in that summary, with some criticism of our argument identified by others. Thirdly, we would propose to look, very briefly, at the Legal Aid Act. Next, we would propose to develop our written submissions and, finally, deal with some matters germane to prerogative relief. If I could start, then, by saying something about the circumstances of this particular case.

KIRBY J: Why did you not go to the Full Court of the Family Court? Is there not a principle that this Court conserves intervention on prerogative relief in those cases, where you have a right of appeal?

MS CRENNAN: Your Honour, there is a reluctance, of course, to grant prerogative relief in circumstances where it would have been more appropriate to use the normal appellate processes, and we are mindful of that, and we are are mindful, of course, of the fact that the Family Court is a superior court of record. But in this particular case, your Honour, there was, we would submit, a patent error arising out of an excess - - -

KIRBY J: That is what prosecutors say every time.

MS CRENNAN: I am hoping to persuade your Honour that this is an unusual case in the sense that the error was not only a very clear one, it also had the result that matters of public importance flowed from the error. In fact, if the order made was not within jurisdiction, the results very quickly which would flow from orders like that will be a tremendous impact in relation to legal aid resources and the creation of a necessary conflict between the contractual obligations the prosecutor has with the Commonwealth in relation to the legal aid fund.

GAUDRON J: One of the problems was that, had the matter gone through the appellate processes, the order would have taken effect. There was a matter of days only, I think, was there not?

MS CRENNAN: That is so, your Honour, and I think your Honour the learned presiding Judge also noted on the return of the order nisi that - we were interveners and we would have had to of course obtain leave. We are not suggesting for a moment we would necessarily have been refused leave, but we were in rather unusual circumstances intervening in relation to a question of jurisdiction which, if we were correct, meant that any error in the exercise of the jurisdiction would be a matter of significant public importance.

KIRBY J: We are all here now but I say out of respect for the Full Court of the Family Court of Australia that I am not very content about this. I think the normal processes should be followed. You could seek interim relief from any orders. It is unthinkable you would not be heard if you are subject to an order and we are, as it were, bypassing the Full Court of the Family Court.

MS CRENNAN: We understand your Honour's remarks and we are mindful of them and we certainly gave them serious consideration when contemplating precisely what steps would be taken as a response to the order.

KIRBY J: They would, of course, not be under the constraints we are in terms of the discretionary elements in the case.

MS CRENNAN: That is right, but what we are essentially submitting is that we are not here to raise any discretionary matters. If it were merely an error within jurisdiction, of course, we could not possibly be here, but we are really saying that there are two alternative ways in which we put our argument about jurisdiction. The first is we say that section 117(2) of the Family Law Act did not provide, either expressly or by implication, for a costs order to be made against a non-party. Now, if we are right about that, that is a fairly obvious example of a want of jurisdiction arising in respect of this order.

Now, in the alternative we say that if section 117(2) is sufficiently wide to encompass a power to award costs against a non-party, it nevertheless does not empower a judge of the Family Court to order the provision of legal aid. When we come to look at the order very briefly we will identify why we characterise the order as an order ordering legal aid.

KIRBY J: I will not say any more about this, but some of the submissions that we have received - I am thinking particularly of the submissions of the Commonwealth - say that it is within power but it is exceptional to order it against the non-party and it is doubly exceptional to order it in respect of future costs.

MS CRENNAN: Yes.

KIRBY J: Now they raise discretionary matters which, in the nature of these proceedings, cannot be determined, but could be determined in the Full Court of the Family Court. Can I take it that you are not going to have those matters relitigated at any future time? You waive that matter?

MS CRENNAN: In this proceedings, certainly, your Honour, yes, we do waive that matter, and I think there was some discussion of that before the learned presiding Judge on the return of the order nisi.

GUMMOW J: Yes; for myself I could not understand why the Commonwealth's submissions went into discretionary matters. They seem to be knocking down a straw man.

MS CRENNAN: Perhaps I ought to complete, if I may, what I was saying in relation to the second way in which we put our jurisdicitonal point, because then I will say something about the arguments about discretion raised by the Commonwealth. The second way in which we put the point is this: if section 117(2) is sufficiently broad to confer a power on a Family Court judge to award costs against a non-party it would be our argument that that does not encompass, as I say, making an order which is tantamount to ordering legal aid. That would be a less obvious jurisdictional error. Your Honours will recollect in Craig's Case, for example, there was quite a substantial discussion about the two forms of jurisdictional error in relation to prerogative writs; one being the obvious form where there is a want or excess or jurisdiction; the less obvious form being where within jurisdiction a judge makes a mistake about the precise limits of the jurisdiction. So, in the second way we put it - - -

GAUDRON J: Does your argument assume that it is a costs order?

MS CRENNAN: Our argument assumes it is an order in effect ordering legal aid to be provided. Perhaps I can make that good by just looking very briefly at the application book page 60 which contains the order.

GUMMOW J: It is a curious order on any footing.

MS CRENNAN: We do not demur from that, your Honour.

GUMMOW J: I mean, it has a suggestion of an injunction about it. It does not say what is to happen to the money, how it is to be kept.

MS CRENNAN: Or to whom it is to be paid.

GUMMOW J: Yes.

MS CRENNAN: Yes, that is so. It is in two parts. It is paragraph (3) on page 60, orders Victoria Legal Aid, first of all:

provide either the sum of Nine Thousand and Thirty Seven Dollars and Sixty Cents $9,037.60 for the future costs of the child's representative -

Now, that is assumed in some of the submissions to be a costs order, but we would say there are difficulties even in characterising that as a costs order against a non-party. It is clearly for future costs, rather like providing security for costs and it is ordering Victoria Legal Aid to provide the sum, not saying to whom - - -

GUMMOW J: No. Before that there is a mandatory order, "or shall facilitate".

MS CRENNAN: Yes, I was coming to that.

GUMMOW J: At its election presumably.

MS CRENNAN: Well, I was just about to come to that, your Honour, as the second arm of it. Yes, there is a requirement in the alternative to facilitate the making available of the child's representative which, to us, is a pure ordering of legal aid. Because it is requiring legal services to be provided by Victoria Legal Aid.

GUMMOW J: What happens if you do not? What would happen if you do no? You would be in contempt?

MS CRENNAN: I assume that would have to follow, your Honour. We would be in contempt. So, it is like - I mean it has its analogies with civil conscription, legal aid being required to provide legal services by the effect of this order.

KIRBY J: The word "costs" is in the statute but the words "as to" could not be broader.

MS CRENNAN: Yes.

KIRBY J: They are much broader than other statutory bases for the ordering of costs, but it still has to be an order as to costs.

MS CRENNAN: Yes, that is right, and his Honour in his reasons, which I will postpone for the moment but I will come to it, does engage in an effort to say, "What I am not doing is ordering legal aid. What I am doing is using my powers under the costs order to reach this result." But it is certainly central to our argument. That is not a costs order under section 117(2). It is an order awarding legal aid. Legal aid, of course, only means either providing the funds to private practitioners or providing legal services in-house and that seems to be, on any view, an order awarding legal aid. Perhaps I should add, your Honours, there does not seem to be any serious demur in anyone's written submissions from that proposition and, indeed, we would - - -

GUMMOW J: But what do you say about paragraph 12 of Mr Walker's submissions, Ms Crennan?

MS CRENNAN: We would say he does not, in paragraph 12 - - -

GUMMOW J: He says this is all a false dichotomy.

MS CRENNAN: Yes, it seems to me that what he is driven to do is say that because, in fact, there is no distinction he can make arising out of the terms of this order which would permit him to say this is costs clearly and not an order for legal aid. It seems to me he is driven to say it is a false dichotomy to - - -

KIRBY J: Why cannot it be both? Most orders for costs, any orders for costs have implications for legal aid, would they not?

MS CRENNAN: They have implications for legal aid, your Honour, without requiring, in their terms, the provision of funds or, alternatively, the provision of legal services. It is because of the precise terms which I was going through just before with Justice Gummow that Mr Walker, we would submit, in paragraph 12 is really not attempting to argue that you could characterise that order in any way as a true costs order.

KIRBY J: You were outlining at the very beginning a beautifully, logical presentation of the case. I am afraid I interrupted that by a matter that was not dealt with in that structure.

MS CRENNAN: A very welcome interruption, your Honour.

KIRBY J: I see. I am told that that was the structure that Justice Gaudron laid down in giving the order nisi.

MS CRENNAN: I think it is my structure, so if it has any warts I shall take the blame for it, your Honour. But I will pass through it.

KIRBY J: I misunderstood. Her Honour was suggesting that the issue that I raised was something that was bypassed by the order nisi, but I am not sure that I go along with that at this stage.

MS CRENNAN: I will come back to your Honour's point. We are mindful of it and we recognise - - -

KIRBY J: It is in part out of protection of this Court, but it is also in part out of respect for the Federal and other courts of the nation.

MS CRENNAN: Of course. We do recognise that, your Honour. May I then turn back to just outlining very briefly the precise circumstances of the case.

A husband and wife have been parties to proceedings in the Family Court which commenced more than four years ago. And in dispute is the question of access to their only child, a five-year-old daughter. The husband and father is a successful businessman, and that is to be found in the evidence in the application book at pages 5, 6 and 88. The wife and mother is an anaesthetist, application book page 5. A separate representative was ordered by the court as long ago as 5 February 1993.

GAUDRON J: Was it ordered as such.

MS CRENNAN: Your Honour, again, if we just look at the application book page 8. The order in paragraph (1) is what is relevant for our purposes:

That the child.....be separately represented in these proceedings, only on the basis that the Legal Aid Commission provide such representation.

So, it seems to be a conditional order.

HAYNE J: What does that mean?

MS CRENNAN: We had some trouble with it, your Honour, when we asked ourselves the question: is it possible to be in contempt of this order? I should perhaps say, as I apprehend it - - -

GUMMOW J: Was this order - you may not know the answer to this - was this order of 5 February handed up by the parties? I mean, who is the author of it. Endless trouble - - -

MS CRENNAN: I cannot answer that, actually.

GUMMOW J: Endless trouble flows from these loose orders, particularly in a sensitive area like family law.

MS CRENNAN: Yes. Perhaps the whole area of separate representation seems to us to be a difficult one in terms of the orders made. This is an order from 1993. It seems to us to be a conditional order. But our understanding is that a more common form of the order was the order made for the continuation, which is to be found at application book 12, and paragraph 1 is the relevant paragraph, for our purposes. Your Honours will see there, there is a reference to 68L, which covers separate representation, and the order is that the child continue to be separately represented by Mr Cohen of Legal Aid, Victoria, and it is requested that Victoria Legal Aid arrange such separate representation. Now, my understanding is that the order in respect of separate representatives is commonly made in this form, not in the conditional - - -

GUMMOW J: Courts do not request things, certainly not in orders.

MS CRENNAN: Under the Rules of the Family Court - rule 23, sub-rule (4) - we have mentioned this in our written submissions - the rule expresses that there is the ability of the court to make that request to Victoria Legal Aid.

GUMMOW J: It is Order?

MS CRENNAN: Order 23, rule 4. Yes, it is 4(2):

If the court orders that a child is to be separately represented -

so, there is an order made for the separate representation -

it may request that the representation be arranged by a legal aid body -

There are difficulties with that structure, obviously, but that is the way it is done. That is the common form in which it is done; that the Family Court orders that there be a separate representative, and requests the legal aid body to arrange it.

HAYNE J: What is the effect of all that? What happens if legal aid on that order says, "Thank you for your request. No."?

MS CRENNAN: There could not be a contempt, your Honour, in our submission, because a request could not have the force of an order. I will fully explain so far as I can how these orders are done.

HAYNE J: Thank you.

MS CRENNAN: What next is relevant is that in October 1996 Victoria Legal Aid advised legal practitioners of two matters affecting the funding of separate representatives.

KIRBY J: Could I just ask you to pause there. It seems a little unusual that a successful businessman and an anaesthetist are drawing on public funds, but is that what commonly happens, that if the child is ordered to be separately represented, that the public pays for the - - -

MS CRENNAN: No, your Honour. It did happen from time to time in the past, as I understand it, when you had these arrangements whereby the court made a request to Victoria Legal Aid to arrange the representation. There were, and it was much publicised, severe cuts in the legal aid dollar, the total funds which were going to be made available in 1996.

KIRBY J: Yes, even I have noticed that.

MS CRENNAN: What happened then was that as a matter of policy Victoria Legal Aid formulated a policy which had two relevant aspects for our purposes. One, Victoria Legal Aid would not fund a separate representative in circumstances where neither of the parties would qualify for legal aid, and an anaesthetist and a successful businessman obviously would not qualify for legal aid. In circumstances where one party only qualified for legal aid, Victoria Legal Aid would only meet half the costs of a separate representative. So there was a qualification required in relation to Victoria Legal Aid funding separate representatives directed to the financial resources of the parents of the child.

KIRBY J: But at the time these orders were made those cuts, which are in a sense something separate, were not relevant; the court just went ahead and made requests for legal aid to be provided to what on the face of it appear wealthy citizens.

MS CRENNAN: Yes, they were relevant, your Honour, and I will come to that in a moment. I will just finish what I was going to say in relation to that if I may. The second element which is relevant in relation to changes in policy was that there was what is called a ceiling or a cap in relation to the funds available for a separate representative and the ceiling cap was fixed at $15,000. These matters can be picked up by looking at the application book, page 15, just very briefly and following. This was the letter which went out at the beginning of October to practitioners advising about these matters. If your Honours look at page 16, at 1.3 there is a ceiling on child representative costs, and the ceiling can be picked up in the second-last line, $15,000. At 1.4 there is a means test and in the fourth-last line:

VLA will not appoint a child representative if both the parties are unaided.

So, by reference to the financial resources of the parents, Legal Aid made a decision about whether or not to fund a separate representative. So that is a very important part of the background to this case. In so far as I have taken your Honours to an order made in 1993 and one made in July 1996 continuing funding or requesting that it be continued, both of those predate the policy.

GUMMOW J: Now, section 68L is the source of the power to make these representations.

MS CRENNAN: Yes, to make those orders for separate representatives.

GUMMOW J: It does not say that the child is a party.

MS CRENNAN: No, it does not, your Honour, and the position - I will take your Honours to this point shortly. There is no consensus among the Family Court judges as to how a child is to be characterised in circumstances where there is a separate representative. Some take the view that they ought to be treated as analogous to a party, that the separate representative is analogous to a party, I should say. Others take the view that the separate representative is merely the legal practitioner on behalf of the child, who may be joined as a party if the child so requests. I think that is how it works. So the child is not strictly a party unless the child requests to become a party. The child clearly has an interest in the proceeding.

Now, your Honour, I should perhaps just mention in passing whilst we were looking at 68L that under subsection (2), if I can just direct your attention, that in circumstances where the court orders that a child is to be separately represented, it:

may also make such other orders as it considers necessary to secure that separate representation.

Now, there has been argument before the Full Court of the Family Law Court where a submission was made that that was sufficient to confer power to award legal aid. That argument has been rejected and it seems to be that the current view is that 68L(2) does not confer a power to order legal aid under that rubrick of securing separate representation.

GUMMOW J: Thank you.

KIRBY J: Well, a child would normally not have in the piggybank the money to pay for legal representation, so that if parents cannot or will not but the court believes that under the Act it ought to have the assistance of a separate legal representative, then 68L(2) would presumably enliven some power to do what could be done to ensure that a person is there.

MS CRENNAN: Yes, we would submit that that is correct.

KIRBY J: It would run, for example, to ordering the - - -

MS CRENNAN: The parties to share the costs.

KIRBY J: - - - parties share the costs or, if they cannot do it, maybe if a grandmother has been involved, to contribute something.

MS CRENNAN: That is so, your Honour.

KIRBY J: But query whether it goes to other people who have become involved in the litigation.

MS CRENNAN: That is so, yes. To continue on then, the evidence in this case is that probably more than 15,000 has already been spent on the separate representative in this case over the previous four years - application book 3 - but more importantly the evidence was that neither parent qualified for legal aid and, accordingly, the parents were advised that no further aid was to be available from the Victoria Legal Aid funds. That is at application book page 20. The father responded to that information on 1 April 1997 by declining to contribute to the separate representative's costs and that is at application book page 28, and the mother responded that she was prepared to consider contributing one-third of the separate representative's costs and that is to be found at page 46. The one-third perhaps is explained by the fact that the paternal grandparents were also parties to these proceedings.

KIRBY J: Were they contributing anything or not?

MS CRENNAN: All I was saying was, your Honour, that the mother responded on the basis she was prepared to consider contributing one-third. The explanation of the one-third was possibly that the paternal grandparents were also parties, otherwise her offer may have been a half.

I have mentioned the much-published funding cuts to legal aid. That background to this particular case is discussed to an extent in In the Marriage of S, which is No 12 in our list, and we will perhaps look at that in more detail shortly.

GUMMOW J: That is the decision of Chief Justice Nicholson.

MS CRENNAN: Yes, that is so, your Honour. In any event, these limits on legal aid, that is to say the limits arising out of the financial circumstances of the parents, and the ceiling or cap of 15,000 were both in place when his Honour Justice Faulks heard this matter.

KIRBY J: Was the child involved a respondent to these proceedings, and is that child's interest protected in these proceedings? Because, the child, himself or herself, might have some interest to advance, the right to be represented.

MS CRENNAN: I have just been reminded about the precise circumstances. What happened after the return of the order nisi is that this matter was brought before Justice Kay of the Family Court and at 138 your Honours will be able to determine what happened in the proceeding. An order was made by Justice Kay on 15 September that the husband and wife each pay a half share of the legal costs, towards the costs of the child being separately represented. Then, if I can direct attention to paragraph 4, that those orders were not intended to affect in any way any orders that might be made here. So, there is still something to prohibit, but the substantive proceedings have been heard and concluded. That probably answers your Honour's question. In other words, the separate representative has been present on behalf of the child for the ventilation of the substantive issue which has occurred.

I told your Honours that the limits were a matter of legal aid policy when Justice Faulks heard the matter. They are now to be found in guidelines attached to an agreement between the Commonwealth and Victoria. The agreement is dated 7 November 1997, and it is exhibit A1 to the affidavit of Garry Edward Burlingham.

KIRBY J: I saw that, and I wondered why we are concerned with private agreements that are reached between the governments of the Commonwealth and the State. We are only concerned, are we not, with the power of a court under a statute of the Commonwealth Parliament and, contingently, constitutional authority to enact such a power.

MS CRENNAN: It is true, yes - - -

KIRBY J: The governments can make all the agreements they want to as to how money is disbursed, but that is really irrelevant to the Court's function.

MS CRENNAN: Your Honour will recollect that in Dietrich's Case there was consensus for the proposition that legal aid depends on the political branches of government in the performance of their legislative and executive functions. There is a passage to be found in the judgment of the Chief Justice at page 325 which was completely consonant with other observations made by those in the majority on that issue.

KIRBY J: The Chief Justice, was he dissenting in Dietrich?

MS CRENNAN: Yes.

KIRBY J: I see everybody was quoting the Chief Justice's view but he was in dissent in that particular case.

MS CRENNAN: Not on that point, your Honour, no. In relation to this - - -

KIRBY J: But for the purpose of direction o the holding you disregard the dissenting Justice.

MS CRENNAN: Well, your Honour, in relation to this point, there was a very clear consensus among the Judges. It included - - -

KIRBY J: Just for myself, I would prefer, as a person who occasionally dissents, I mean, the rule is clear. It does not become part of the holding of the Court.

MS CRENNAN: If I may say this, your Honour, I focussed on page 325 because it collected some strands which were dealt with otherwise in the judgments of some of the majority judges, but I will make sure I add Justice - - -

KIRBY J: You might be setting a new pattern, Ms Crennan.

MS CRENNAN: Justice Toohey and Justice Gaudron and, I believe, Justice McHugh all made like observations and I will certainly make sure that I amplify our reliance on Dietrich with the reference to the page numbers for those other passages. But I was referring to the Chief Justice for no more than underlining the point that legal aid depends on the action of political branches of government and it depends on government performing certain legislative and executive functions. Now, the legislative aspects, of course, I will be making good when I look, together with your Honours, at some parts of the Victoria Legal Aid legislation - - -

KIRBY J: I only raised my concern about the Chief Justice because, as I understood it, that was the foundation of his objecting to the principle which the Court laid down in Dietrich, namely, that it is not for courts to order the Executive Government, levying it on the public purse to make provision for legal aid and, therefore, it is not peripheral to his reasoning, it is foundational, as I recall it. However, perhaps you can come to that in due course.

MS CRENNAN: Yes.

GAUDRON J: At this stage of the proceedings, nothing in particular turns on that.

MS CRENNAN: No. Can I think about that, your Honour? It is just that I will pass through this and I will certainly - I will not forget to come back to that. What I will need to do is just revisit the detail of the decision. Now, the point of the affidavit, your Honours, is this. Of course, your Honours may decline to receive it or read it, as the case may be, but the point of that is - - -

GAUDRON J: Does anybody rely on it? Did you file it?

MS CRENNAN: No. I was going to say it has been sworn and filed on behalf of the Commonwealth and what it does - - -

GUMMOW J: They are just an intervener.

MS CRENNAN: Intervener, yes.

KIRBY J: I wondered how it came in my papers. I have this strange document that is not even by a party.

MS CRENNAN: Well, your Honour, may I say this, in relation to it: two things.

GUMMOW J: But if either party wants to read it, well they can read it, I suppose. The only question is, does any party object to that?

MS CRENNAN: Yes. Well, perhaps, yes. Why do not I read it because I was proposing to look very briefly at one of the exhibits to it and see how we go.

GAUDRON J: Is there any objection? No objection. Interveners? Very well, thank you, Ms Crennan. I do not think you need to read it in its entirety, if you would just refer us to that part upon which you rely.

MS CRENNAN: What I might do, if I may, your Honour, is I will just ask your Honours to look at exhibit A1 - - -

GUMMOW J: What shortly will all this tell us? We can read it for ourselves - - -

MS CRENNAN: Very well.

GUMMOW J: Because there are a lot of parties here today.

MS CRENNAN: Yes, well, that is right, your Honour. If your Honours look at, or make a note to look at Schedule 1 - your Honours may care to look at paragraph 2 which deals with the allocation of funds and, in particular, (i).

HAYNE J: What legal significance are we to attribute, in your argument, to the agreement to which you now refer? What is the legal point you seek to make?

MS CRENNAN: The legal point we seek to make in relation to it is this, your Honour. It is part of the executive functions of Victoria Legal Aid, as an instrumentality, to work out priorities as between classes of cases and classes of applicants for legal aid dollars. This has all become the subject matter of an agreement between the Commonwealth and the States so that if orders such as those made by Justice Faulks - if they, for example, are made in excess of jurisdiction, during such time as they are obeyed, they have an impact in relation to the contractual arrangements between the Commonwealth and the State which oblige the State, because of a finite legal aid fund, to undertake these executive functions of allocating resources, working out equitable considerations as between the whole pool of applicants for the legal aid dollar and allocating priorities as between classes of matters and classes of applicants.

GUMMOW J: All of that might go to discretion, I suppose. I do not see how it goes to power. We are here to talk about power.

MS CRENNAN: Yes, it underlines, I suppose, the executive nature of the functions which may have an impact, if we get to the constitutionality of 117(2).

GUMMOW J: Yes.

MS CRENNAN: So it is really there when we get to that point if you like.

KIRBY J: It looks a little remote. I mean, if we make an order, say, against Mr Graham because of his intervention and his submissions and so on, that will impinge on the budget of the State of Victoria and indirectly reduce the finite amount that is available for legal aid and for everything else.

MS CRENNAN: Well I hope Mr Graham is very well remunerated, your Honour, but I dare say that even if he is, the impact of that, by comparison with, say, orders ordering legal aid in favour of separate representatives for children of anaesthetists and businessmen, if they are made on a large scale, may certainly have a much larger impact.

CALLINAN J: You do not need the agreement for your proposition, though, do you?

MS CRENNAN: No.

CALLINAN J: Your proposition simply is that this would involve an interference with an executive function of allocating funds.

MS CRENNAN: That is right. We are merely underlining, by reading the agreement, we are merely illustrating the detail of the executive function. I do not need it, of course, to make the submission that these tasks are part of an executive function. Indeed, that is recognised in a number of passages in Dietrich's Case, in particular in the majority Justices, your Honour.

KIRBY J: In the old days before we looked into the inner workings of the Executive Government, we would just have been taken to the Victoria Legal Aid Act because that is the basis for your power to do your functions.

MS CRENNAN: Yes, that is right. I mean, we are of the view that it may have been of some assistance to your Honours to at least be informed about the arrangements. We accept, of course, that decision can be made in this case without any reference to them at all but we are conscious of the fact that occasionally it is said, "If only we had had the evidence on a particular point we might have been better informed about the precise effects of that particular argument." and it is against that sort of background, your Honour, that we have read this.

Passing on then, schedule 2 under the heading of "Family Law", (a) is to be noted but, most importantly, under schedule 3 you have now got "the means test", "the merits test" and the cap of 15,000 all forming part of the agreement. So, I would direct your Honour's attention in schedule 3 to guideline No 1 and, in particular, 1.3 and 1.4. And I will put that to one side.

Our submission, of course, as Justice Callinan pointed out, is that it is for the legislature to determine how much money is to be appropriated for legal aid in any one financial year, and it is for the executive to determine priorities and allocations when the legal aid demand exceeds the legal aid funds available.

Victoria Legal Aid is under a statutory duty, of course, to administer the legal aid fund and the point of that duty is to give legal aid to as many of those deserving it, in accordance with its guidelines, and to do so as equitably as it can. So, it does not just focus on the individual applicant for legal aid, it also has to focus on the fact that there is a finite cake, if you like, if I can be probably too colloquial, with a finite number of possible slices. It has that as part of its statutory duty to take those matters into account, and it is required - - -

HAYNE J: Ms Crennan, I am obviously not following your argument, or your argument at the moment sounds like a political augury speech, not one concerned with power. It is obvious that I am not following your argument.

MS CRENNAN: Well, your Honour, as part of our - perhaps I should go back a step. Our argument has three strands. The first two concern a want of jurisdiction, and they are perhaps our most obvious points and if we succeed on either of them, we do not get to the sort of arguments to which these considerations are relevant. It is only when we get to the third aspect of our argument, namely, considering the constitutionality of section 117(2) - - -

GUMMOW J: Well, we are not going to get to that today.

MS CRENNAN: Well, we were when we came to that part of our argument going to make an inquiry about that because there is a bit of uncertainty, if I may say so, about whether or not we should be saying anything about that at all today, whether we were expected to. I was going to inquire of the learned presiding Judge when I came to that point precisely what we ought to do.

GAUDRON J: I think we can deal with what might be called the construction points first. We can consider what course we will take thereafter.

MS CRENNAN: Yes.

GAUDRON J: There was some suggestion from the Solicitor for Victoria that it might not be possible to extricate them, one from the other.

KIRBY J: I do not know how we will do this, but I would feel more comfortable if that issue could be decided relatively early, because nothing would be more wasteful of the Court's resources than for us to proceed a long way into this case and then reach the view that, either for reasons of principle or because of the light it throws on the construction of the Family Law Act, the constitutional issue cannot be avoided, in which event it may be necessary to reconstitute the Court. I saw the reference to authority of the Court that says you should try to deal with cases without going into the constitutional principle. I have always felt uncomfortable about that in that the Constitution is part of the law of the nation and it permeates every part and aspect, and every nook and cranny, and therefore hiving it off is intellectually a little difficult for me.

MS CRENNAN: In any event, we are happy to give our emphasis, for the moment, in any event, to our constitutional argument. I am perfectly happy to do that. I was just trying to identify, in a very brief way - - -

GUMMOW J: You have got to construe the Act before you decide whether it is valid.

MS CRENNAN: Yes.

GUMMOW J: You have not done that yet.

KIRBY J: Construing the Act, I saw in some arguments, invokes the Constitution, that one construction will lead in one direction, and one construction will lead in another direction, therefore, you should construe it in one way and, thereby, you are involved in a constitutional issue.

MS CRENNAN: Yes. Let me come to that straight away. The question, we would say, on this application is whether the Family Court has jurisdiction, under section 117(2), to make an order against a legal aid body for future costs, or in lieu of future costs, for the provision of future legal services. So, that is the question on the application.

GUMMOW J: Well, that is one question.

MS CRENNAN: The construction question, I should say, your Honour.

GUMMOW J: I thought the construction question was whether this order was made in excess of jurisdiction.

MS CRENNAN: Yes. Yes, that is right.

GUMMOW J: Namely, because it was not supported by 117(2); namely, then, it was not an order of the description permitted by section 117(2). Now, it talks about a legal aid body, that is true, but the question is, what is comprehended by the range of orders that could be made under 117(2), and does this fall within that?

MS CRENNAN: Yes, your Honour. Now, our first - - -

GUMMOW J: And you say it does not.

MS CRENNAN: Well, we say, your Honour, it does not fall within section 117(2), but we put that two ways. If I can just identify the two ways in which we put it? The first way in which we put it is the more simple argument, and it is; that 117(2) is not sufficiently wide in order to permit an order of that kind. We say that both because of the express words of 117(2), and we also say it could not arise by implication. So, we distinguish section 117(2) from a rule of court, like Order 91, rule 1 in Knight's Case, and we will highlight those distinctions.

KIRBY J: What do you say about the point made in Knight's Case by Justice Gaudron, that one of the strong, conventional rules for construing a section of this kind is that where conferred upon a court, it is not construed narrowly because it is intended to apply to a whole range of cases? There is a lot of authority to that point, that you have the language of it "as to" and you have got that general principle. But we are looking at the powers of a court, which are not to be confined.

MS CRENNAN: Well, we would rely on what Justice Gaudron did say in that passage. It is at page 205. What she said was that:

the words used should be given their full meaning unless there is something to indicate to the contrary.

Now, there is much in the total language of section 117 to indicate, we would submit, that it is confined to parties. Our alternative argument, if we are wrong about that - and it can reach non-parties - is it cannot, nevertheless, reach so far as to permit an award of legal aid, or an order ordering legal aid.

So, the first point we make is that it is not like the Rule of Court considered in Knight's Case, and not wide enough in its terms, and the second point we make is that, if it is wide enough in its terms, it, nevertheless, is an excess of jurisdiction to utilise any capacity to order costs against a non-party to included in that awarding or ordering legal aid against a Legal Aid Commission simply because it is - well, under the heading that it is a non-party.

One of the reasons in fact why we strayed into some of the discretionary factors is that they highlight, if you like, the gymnastics required to fit these sorts of facts into Knight's Case because there are differences between the section.

KIRBY J: Is it relevant that Knight's Case was dealing with a Supreme Court which historically is derived in most of the Australian colonies and States from a Royal Charter and is the recipient of the prerogative of the Crown, whereas a Federal Court is a creature solely of statute? Now, that does not seem to have been discussed in Knight's Case but there would be larger, as I have always thought, inherent powers in a State court because of their origin and history than in a Federal Court which must always trace it back to the Constitution and the statute.

MS CRENNAN: That may in fact be reflected in the differences in wording between the State Supreme Court Rules in relation to very general powers to order costs and the precise wording of section 117. Let me say something about 117, if I may, and then I will come to look at it by comparison with analogous orders in other jurisdictions. First of all, the first thing to be said perhaps is that 117(1), which provides that each party bear their own costs, has been recognised as the general rule in family law, just as the general rule in common law is that costs follow the event. So that has been recognised as a general rule in family law in relation to costs.

KIRBY J: Can I just ask you to pause there. I thought one of the points made in Knight was at common law there is no power to order costs.

MS CRENNAN: That is right, until the - - -

KIRBY J: The power to order costs in common law causes are the creature of statute. Equity had a different rule.

MS CRENNAN: That is so, your Honour, and I was referring to the common law statutory power to order costs, and the general rule in relation to that is that they follow the event. That is the general rule; I am just talking about the general rule now. Section 117(1) is the general rule in relation to family law; that is to say, that each party bear their own. Penfold v Penfold is authority for that proposition that the general rule is in 117(1). The second point to be made is that 117(1) must yield to 117(2) wherever a judge finds particular circumstances justifying departure from that general rule expressed in subsection (1), and we accept that. Then one goes on to look at 117(2A) which contains matters relevant to costs orders. When one looks at matters at (a) to (f), they all concern considerations relevant as between parties. It is only (g), the catch-all provision, "such other matters as the court considers relevant".

That is not precisely in its terms confined to considerations relevant as between parties. We would be submitting in relation to that that, having regard to the whole context of 117 and having regard to the particular matters dealt with in 117(2A), we would be submitting that it is clear that 117(2), whilst it is broadly expressed in a semantic sense, is nevertheless confined to matters relevant as between parties. A judge making an order under subsection (2) is obliged to take into account the matters identified in subsection (2A).

To assist your Honours in relation to these contextual questions, may we give you, your Honours, some documents which help understand the history of section 117. We have included a copy for Justice Goldstone. If I can just then pass to the first document. It is from the second reading speech and if I can direct your Honours' attention to the third main paragraph on the left side of the page:

The abolition of fault means that it is no longer appropriate for the so-called guilty party to pay the costs. The Bill provides that each party will bear his or her own costs in all proceedings, unless the court in special circumstances orders otherwise. This should encourage parties to reach agreement on ancillary matters.

Then turning to the explanatory memorandum, if we could direct your Honours' attention to paragraph 57 to be found at the bottom of that page:

To encourage persons to settle their differences, each party is to bear his or her own costs of any proceedings, unless the court makes some other order (clause 117). Provision is also made in that clause enabling parties to apply to the Australian Legal Aid Office for legal assistance.

Then next we have given your Honours a copy of section 117 as initially enacted in 1975 and your Honours will see there there is only subsections (1) and (2) and subsection (2), whilst it is reasonably similar to the current form of subsection (2), your Honours will note in the second line towards the end that the decision is "subject to the regulations" and the regulations at the time we are going to pick up as we turn through this set of material. They are described at page 186 of the next document, which is an extract from the joint select committee and the prior regulation is set out at 11.6. It directed attention to "the financial circumstances of the party", "the availability of legal" and "the conduct of the parties" plus "all other relevant matters". Then if I could direct your Honours' attention to 11.35 of that document where it is noted that:

the judges of the Family Court of Australia stated -

to the Committee that -

Section 117 has not worked as intended.....While the old system was harsh to husbands, the present system can be harsh to wives.

It may be preferable to allow the Court a wider discretion to deal with costs, particularly if it remains necessary to restrict the funds available for legal aid.

Then, your Honours, 11.39 is the recommendation numbered 65 which gets referred to subsequently which makes it important to note and then 11.40 contains recommendations made by the Law Council as to how section 117 might be amended and redrafted and enlarged and you will see under point (2) we have got items (a) to (g) which reflect quite closely the current state of the legislation, not word for word, but in essence this is the fons et origo of the current form of 117(2A). 11.43 might be noted; 11.47 might be noted and recommendation 66 also ought to be noted. Then we come to the second reading speech in relation to the amendment which resulted in 117(2A) and if I can just direct attention to the first main paragraph on the right side of the page:

The Bill I introduce today will implement wholly or in part some 37 recommendations of the Joint Select Committee on the Family Law Act.

Then we have given your Honours section 69 of the Amendment Act which contains the amendment and the enlarging of the circumstances that we now have in subsection (2A).

We have prepared that document, bearing in mind that it is important to understand the context of the section, and - - -

GAUDRON J: Is there any special provision in the Act with respect to interveners?

MS CRENNAN: Interveners can be made a party under the Rule of Court concerning interveners and, accordingly, interveners would be covered.

GAUDRON J: They are not automatically parties though?

MS CRENNAN: They are not automatically a party, your Honour, no. So, one can imagine an intervener on a particular application can quite easily be made a party for the purposes of that application.

GUMMOW J: Section 91 and following sections deal with intervention in some detail, do they not?

MS CRENNAN: Yes, 91; 92 deals with intervention by other persons. It is section 92(3) which I had in mind that:

Where a person intervenes.....by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

GUMMOW J: Yes, likewise, 92A(3).

MS CRENNAN: And 92A(3), yes. It follows the same, yes. So, interveners would seem to be covered by those provisions and treated as parties which would include being treated as parties for the purposes of the cost power.

KIRBY J: What do you get from this fascinating history of section 117?

MS CRENNAN: What we draw from it, your Honour, is was very deliberately part of the original legislation to have a general rule different from the common law rule about cost following the event, and the general rule was that parties would each bear their own costs, and when you look at this material you can see what was driving that approach. That was in order to facilitate settling matters rather than litigating them. But, as I have already said, we accept for the purposes of our argument, that that general rule must yield to the provisions of subsection (2) which, in turn, is subject to subsection (2A). In essence, our first argument in relation to want or excess of jurisdiction is that when one considers the whole of section 117, and when one particularly considers that the considerations identified in (2A) are all, except for (g), inter-party-type of considerations.

GAUDRON J: How can you take that very far when interveners can be deemed to be a party? And, some of those matters really do not relate very clearly to interveners.

MS CRENNAN: No, they do not, your Honour. What we would have thought is that because of the provisions of section 92 and 93, the way it would work is that interveners would become parties on an application in respect of which they intervened and, accordingly, they would be subject to section 117(1). That is how it would work in relation to interventions.

KIRBY J: That is one problem. Another problem is that just by the ordinary rules of construction, 117(1) states a general rule in relation to a party.

MS CRENNAN: Yes.

KIRBY J: But then 117(2) is not confined to a party where the Parliament could quite easily have said, "make such order as to security for costs of the party" and it did not.

MS CRENNAN: Your Honour has identified precisely the narrow ambit of the argument. It is our submission that despite the breadth of subsection (2), having regard to the whole of the context of 117, that we would be submitting 117(2) should be confined to parties.

KIRBY J: You submit that but, first of all, the Parliament has not so provided. Secondly, there is a juxtaposition between subsections (1) and (2). Thirdly, there have been cases, many of them if one looks at the footnotes in the submissions where, over the years, it has been thought appropriate to make orders in relation to non-parties and one can imagine that that may be the case. Take, for example, a solicitor who is wasting the time of the court. It is not at all uncommon for a superior court to order some costs against such a person, though not a party, and thirdly, the point that Justice Gaudron made in Knight. This is a power to a court to cover a myriad of circumstances. One would normally not narrow that down.

MS CRENNAN: That is so. We would have to accept that one would not normally narrow that down and, indeed, that is what Justice Gaudron says at page 205 of Knight's Case. What we are saying is that (2A) in its terms permits some narrowing down, that section 117(2), as a result of being subject to (2A), is not perfectly analogous to Rule of Court Order 91 rule 1 considered in Knight's Case.

So that is our argument, that when one considers the whole context of section 117 we would say, despite the broad wording of subsection (2), it is not - first of all, it contains no express power to award costs against a non-party so one has to imply it from the breadth or width, whichever you like, of the express words and we would say, when you are considering what you can imply into the breadth or width of the express words of subsection (2), when you look at (2A) that ought to be confined to inter-party costs orders, including interveners for those purposes.

HAYNE J: You say confined to inter-party's costs orders. You had earlier expressed the limitation as being a limitation of costs confined to parties. Which do you adopt?

MS CRENNAN: Costs confined to parties, your Honour. I use the word "inter-parties". I hope it is not a solecism. I only used it as a word to pick up the fact that the considerations in subsection (2A) are all matters pertinent to considering the position of the two parties.

HAYNE J: Therefore you are confining it, are you, to the costs which a court might order one party to pay another?

MS CRENNAN: Yes.

HAYNE J: You are excluding, therefore, the court making any order regulating the costs which the practitioner of a party might charge to that party.

MS CRENNAN: Obviously questions of taxation and so on are dealt with in Rule of Court No 38, your Honour.

HAYNE J: The power you say under 117(2) is a power concerned with costs, make an order as to costs, understood as costs payable by one party to another party to the suit. Is that the confining you - - -

MS CRENNAN: That is how we confine it, your Honour, and we do so on the basis that the general rule is each party bear their own costs. The broader rule is that the general rule can be deviated from so that one party may be ordered to pay the costs of the other party in certain circumstances where that is a just course of action and to come to a view about the certain circumstances, one takes into account considerations relevant to that second issue of one party paying the costs of the other party.

HAYNE J: But if that is the limitation for which you contend, it may - I do not know - be possible to read 117(2) as still permitting the making of what might be called a Knight-type order; a person standing behind a party to pay the costs to an opposite party and, yet, leave the order made in this case as an order without jurisdiction, it not being concerned with costs payable to an opposite party. So, what is the contention you make?

MS CRENNAN: The second contention we make is that if subsection (2) is sufficiently broad to order costs against a non-party, as in the Knight situation, it would have to include the ability to do that, we would accept. We would next say that this order was not a costs order of a Knight kind, because it was an order ordering legal aid against a non-party - ordering the provision of legal services or, alternatively, funding.

HAYNE J: Or, putting it rather more captiously, an order for the maintenance of an action.

MS CRENNAN: Yes, indeed. Well, I did use the word "conscription" before, yes.

GUMMOW J: And it was for future costs.

MS CRENNAN: And it is for future costs and, really, we are - let us think about - - -

GUMMOW J: How does it differ from an order for security of costs?

MS CRENNAN: Well, there is a figure there identified as "precise future costs". There is no - I mean, it is actually very close, in effect, to making an order for security for costs, except - - -

HAYNE J: Well, is that right?

GUMMOW J: Is that right?

HAYNE J: Security for costs, surely, is security for the costs of the opposite party; that the plaintiff provide security for the costs of the defendant.

MS CRENNAN: No, I was only considering whether it could be characterised as like security for costs if there were power to order security for costs against somebody who is intervening.

HAYNE J: Well, that the receiver of the company provide security for the costs of the opposite party to the suit.

MS CRENNAN: I was responding to Justice Gummow on that understanding of his question to me.

KIRBY J: Is that historical meaning of "security for costs" what we are to read into the statute, which merely talks of security for costs? On the face of things, that phrase would be sufficient, where there are costs for a separate representative, to provide for the security for those costs. After all, this is a peculiar statute. It is a peculiar provision for separate representatives.

MS CRENNAN: Yes, it is.

KIRBY J: And that has to be fitted into the equation of what "security for costs" means in that context.

MS CRENNAN: It would. For example, a court might order a well-heeled husband and wife to provide security for costs for a separate representative. That would, of course, be within power.

KIRBY J: If that is within power, why is it not within power to make a provision for security for costs which happens to fall upon a non-party?

MS CRENNAN: Well, we come back to the distinction that, in my previous example, it would be security for costs being ordered against a party.

GUMMOW J: But it is a security.

MS CRENNAN: It is a security, yes. This is an order for providing the funds, it is not for security, either. That is the other distinction, of course.

HAYNE J: It is maintenance - - -

MS CRENNAN: Yes. It is essentially an order for us to provide maintenanace or funds to ourselves or, alternatively, provide the legal services.

HAYNE J: I use "maintenance" in the sense of maintenance and champerty.

MS CRENNAN: Maintaining an action, yes.

HAYNE J: Yes.

MS CRENNAN: Well, may I just make an observation in that context?

GUMMOW J: Is that still tortious in Victoria?

MS CRENNAN: I will have to refer that to my learned junior, your Honour.

HAYNE J: It was discussed in the Court of Appeal in UTSA v Ultra Tune Systems.

MS CRENNAN: It is certainly not a crime in Victoria.

HAYNE J: Though it is still possibly regarded as contrary to public policy.

MS CRENNAN: Yes.

HAYNE J: Mr Justice Hansen in 21 Australian Corporations and Securities Report examined it at length in the Court of Appeal and upheld his decision for the reasons he had given.

KIRBY J: But if it is made under a statute of the Commonwealth which has power, then all the old common law is swept away.

MS CRENNAN: In the context of using words like "maintenance", "conscription" and so forth, may I just analyse for a moment precisely how one characterises all the parties. First of all, the child is not necessarily a party to an action in the Family Court proceedings. The separate representative, we would submit, is no more than the legal representative acting for the party, generally providing - the services are usually provided by the solicitor side of the profession who, in turn, from time to time, briefs counsel. Then one gets to legal aid who, in some circumstances, fund the separate representative, who is no more than the legal representative, who is in turn a non-party, who is in turn acting for a child who may or may not be a party. So, there are layers of non-parties in the context of this particular order. It is not a simple application of Knight's Case and that is why we - - -

KIRBY J: But that possibly is what the Parliament had in mind when it used the phrase, which could not be wider, "such order as to costs". It is a very wide expression. It is not "order for the costs of a party", it is "as to costs". In its ordinary connotation, that would cover a very large range of costs orders including orders that are designed to ensure that costs are provided to a party.

MS CRENNAN: The problem, your Honour, though is it is subject to subsection (2A). Now, that is very distinct from analogous rules of court which contain broad powers to order costs. Perhaps I can make that point - - -

KIRBY J: Yes, but paragraph (g) there is the sort of - - -

MS CRENNAN: Yes, I understand that, your Honour. May I, for your Honours' assistance, let your Honours have another document in which we have set out for your Honours various examples of general costs order of the kind that Justice Kirby is suggesting 117(2) is, because of its express wording. We have undertaken this exercise so that your Honours can make the comparisons very quickly without having to track through the various cases. What we have done on page 1 is we have set out the relevant section of the Supreme Court Act and the relevant rule of court in respect of Aiden Shipping, which, of course, is referred to in Knight's Case, and, indeed, is referred to in a number of the Family Law decisions to which we will come briefly, shortly' and, relevantly, of course, the court had full power to determine by whom and to what extent the costs are to be paid, at the very last part.

Then we have given your Honours the analogous section and rule of court, which was pertinent to the Burns Philip and Bischof Cases, which are contained in our written submissions, and your Honours will observe that, again, it is cast very broadly like the UK legislation, that:

the Court has full power to determine by whom and to what extent the costs are to be paid.

And the Supreme Court ruled, in fact, has a broad definition of "party".

We have done the same for Knight's Case, so we have given your Honours the Queensland Rule for these points of comparison and your Honours will recollect from Knight's Case that we can put to one side section 58. It is only necessary to make the comparison with Order 91 rule 1.

We have then given your Honours the Family Court legislation which we have been looking at - - -

GUMMOW J: How does section 118 fit in with this?

MS CRENNAN: It covers frivolous or vexatious proceedings.

GUMMOW J: Yes, it is specifically referred to in 117(1).

MS CRENNAN: Yes.

GUMMOW J: For costs, says:

such order as to costs.....as the court considers just.

MS CRENNAN: Yes.

GUMMOW J: One would assume that was against the party that has been frivolous or vexatious.

MS CRENNAN: That is what we would say. We would say that 118(1)(b) making orders for costs against a party who happened to be bringing frivolous or vexatious proceedings.

We have given your Honours the Federal Court Act 1978 drawing your Honours' attention to the width of section 43(2). I do not want to keep repeating the point. Obviously what we say is when one makes the comparison, 117(2), although we have to accept is worded broadly, when one considers the whole context and most particularly (2A), our submission is one ought to read it down to conferring jurisdiction to order costs in relation to parties including those who are interveners and thereby deemed to be a party. HAYNE J: The order with which we are presently concerned is an order that regulates the payment of, putting it neutrally, fees and disbursements incurred in connection with advising or representing the child, is it not?

MS CRENNAN: Yes, your Honour.

HAYNE J: Are any of the costs provisions that you have given to us seen as the source of power, asserted at least by Supreme Courts perhaps otherwise, to regulate the fees and charges made by practitioners to their clients?

MS CRENNAN: No, your Honour.

HAYNE J: Other power is given to Supreme Courts to provide for taxing the bill of a solicitor or the like?

MS CRENNAN: That is right.

HAYNE J: What, if any, analogy can be drawn between the order now made with which we are concerned regulating the amount that is to be provided and charged in respect of representation and the jurisdiction to tax a solicitor's bill?

MS CRENNAN: It is difficult to see how it fits into any relevant category in the context of undertaking that exercise, your Honour. We would say that fact itself highlights the fact that this is not an order in any respect analogous to the type of order made in Knight's Case, even if we are wrong about our first submission that subsection (2) is confined to costs to be made against parties. We accept, of course, that Knight's Case elucidates the jurisdiction to award costs against non-parties under general powers to award costs, but we would go on to say that in this case the judge relied on that to assert a jurisdiction over a legal aid body to provide funds and services.

KIRBY J: That is the next step but - - -

MS CRENNAN: It is the next step.

KIRBY J: Picking up what Justice Hayne was asking, it would not be at least out of possibility that a lawyer acting for a party in the Family Court might waste time or abuse the court and it may not be the fault of the party. On your construction, you could only use 117(2) to make an order against the party; you could not make an order against the attorney or the person who is responsible.

MS CRENNAN: Your Honour, there are two things to be considered, we would submit. There has been recognised from time to time a separate and inherent jurisdiction in courts to make orders against solicitors for delinquent behaviour of some sort or other on the basis that the court is supervising an officer of the court. That is a particular area of jurisdiction that was discussed in Knight's Case. Under Order 38 - - -

KIRBY J: I query whether that attaches to the Family Court.

MS CRENNAN: I was just going to come to that, your Honour. Under Order 38 which is the Rule of Court concerning costs in the Family Court, there is rule 36 which provides for costs to be ordered against a legal practitioner. That order provides in its terms that the court may make orders against a legal practitioner if the legal practitioner has caused costs to be incurred by a party or another person because of improper or unreasonable conduct, ought to be thrown away because of delay, negligence, misconduct, and so on. So, the Rules of Court seem to provide for an ability to make orders against solicitors, analogous to the old inherent jurisdiction of the Supreme Courts, for example, to make orders against delinquent solicitors for costs as part of the supervisory jurisdiction over officers of the court.

KIRBY J: These rules are made by the judges pursuant to legislative power, are they?

MS CRENNAN: Yes.

KIRBY J: Does the power expressly extend to costs?

MS CRENNAN: It would have to I would have thought, your Honour. Yes, section 123 which deals with Rules of Court, (1)(g) deals with:

prescribing matters relating to the costs of proceedings (including solicitor and client costs and party and party costs).

So, there is a distinction between the two.

GUMMOW J: The Solicitor-General for Victoria relies on Cashia v Hanes in 179 CLR at 410 in the joint judgment of five members of the Court. They said:

that costs are awarded by way of indemnity, or, more accurately, partial indemnity, for professional legal costs actually incurred in the conduct of litigation.

MS CRENNAN: Yes, he does and of course that is in the context - - -

GAUDRON J: Well, how would this order fit against that - - -?

MS CRENNAN: Well, it does not, we would apprehend and submit, because it is an order for future costs against a non-party

which has funded another non-party in the past. So, it would not fit.

So, just to summarise our position then. Our first argument on the construction of section 117(2) is that, relying on the whole context, including subsection (2A), we would construe or urge the construction that subsection (2A)(g) covers other relevant matters between the parties rather than indicate a legislative intention to widen the cost power beyond parties, or to catch up matters extraneous to the parties. But next, to summarise again, that if that argument is not accepted, our alternative argument is that if correctly construed, 117(2) can extend to non-parties. It cannot encompass an order of this kind because it is ordering future costs and, alternatively, the provision of legal services against a non-party which happens to be, in this case, a legal aid instrumentality.

KIRBY J: Just help me, why you say a statutory phrase "as to costs" excludes future costs. I mean, on its face the words are so general that they can include past costs, future costs, contingent costs, solicitor and client costs, costs as between party and party, costs of a trustee, costs on an indemnity basis, all the other costs orders that can be made. Why can it not include future costs, if that is truly necessary to secure the object of this rather peculiar Act with its very unusual provision for legal representative of a child?

MS CRENNAN: In unusual circumstances, your Honour, it would include a power to order future costs against a party. In fact, as I understand it, not that I am very familiar with the Family Court jurisdiction, but in property disputes, for example, it is quite common, as I understand it, for what is called a Barro order to be made where, for example, a husband, who, the evidence is, has financial resources of a significant sort, is ordered to provide for future costs, not done by way of security for costs, but he is ordered to put a sum of money in the trust account of the wife's solicitor, something of that sort.

KIRBY J: It sounds a very sensible order.

MS CRENNAN: So there is a power - - -

KIRBY J: Why should there not be such a - - -

MS CRENNAN: Well, I am not suggesting there should not be such a power, your Honour. I am suggesting there probably is such a power to make a future order directed to a party.

KIRBY J: Well if, in the peculiar circumstances of the Family Law Act, such a power has grown which has not previously been used in other general courts for the peculiar circumstances of wives who do not have their power over the capital of the relationship, why not a power to protect the child who has this rather special statutory protection of a right to have a separate representative?

MS CRENNAN: We have no problem, your Honour, with the courts ordering the husband and the wife in this circumstance providing for the future costs of a separate representative.

KIRBY J: But the Parliament has not limited powers. It is "as to costs".

MS CRENNAN: Your Honour, we say it is going way beyond Knight, for example, to imply into the general costs power an ability to order future costs or the provision of services against a non-party. That is not within Knight's Case. It is going way beyond Knight.

KIRBY J: You keep saying non-party, but this is an Act that contemplates a special non-party of a child with a separate representative.

MS CRENNAN: Yes, but non-party in my sentence, your Honour, was a reference to the legal aid instrumentality and what I am saying is I do not disagree with your Honour that it may be just in certain circumstances to deal with an issue of ordering a party to pay the future costs of another party. That is my first agreement with your Honour. My second agreement with your Honour is that, of course, it would be within power to order that the parties, the husband and wife, pay the future costs of the separate representative appearing on behalf of the child. I know that is a matter of concern to your Honour, to test whether I agree that is within power. I do agree that is within power, but what I - - -

GAUDRON J: Under 117 or under some other provision of the Act?

MS CRENNAN: Well, under 117 - under 68L there is power to make orders to secure the representation of the child, be the child a party or not, and one then would look to 117(2) where there is the power to:

make such orders as to costs, whether by way of interlocutory order or otherwise, as the court considers just.

KIRBY J: But this is in relation to a non-party child.

MS CRENNAN: Yes, we are talking about a non-party child now and what I am saying is - - -

KIRBY J: Once you have conceded the non-party, it seems to me you have sold the pass.

MS CRENNAN: No, your Honour. No, what I am saying - well, we are talking here about making costs orders to ensure and secure the representation of the separate representative and I am agreeing that it would be within power to make an interlocutory order, for example, to secure the future costs of the separate representative. My only disagreement is that I am saying it is not within power to order that against a non-party.

The obvious persons to assist with the costs of a separate representative are parents, equally; that is to say, parties to the matrimonial dispute.

GUMMOW J: I thought these Barro orders were supported - between husband and wife, are supported under section 74.

GAUDRON J: That was the issue that was left open, I think, in the special leave application of Breen.

MS CRENNAN: Yes.

HAYNE J: The position of the child, perhaps, by section 66B and following.

MS CRENNAN: Yes. Perhaps to buttress, and perhaps 74 is used to ensure - - -

HAYNE J: It is not sourced at all in 117.

MS CRENNAN: No. I must say, it seems to us that 117 would surely be wide enough to permit Barro orders to be made, without calling in - - -

GUMMOW J: It contravenes the indemnity principle which has been established since the Statute of Gloucester and, prima facie, statutes do not overthrow the common law principles unless - - -

MS CRENNAN: Of course, that the is the problem with it, as your Honour has mentioned before.

GUMMOW J: Prima facie, that is what the word "costs" means. It carries all that baggage with it, unless someone - the Parliament chooses to - - -

KIRBY J: Are you withdrawing your concession, Mrs Crennan?

MS CRENNAN: I am very grateful to his Honour, because he has given me, of course, the answer that I should have more amply given to your Honour in asking - - -

KIRBY J: I do not know that you were wrong in what you earlier said.

MS CRENNAN: - - - me about future costs. I mean, that is, of course, the primary problem with them.

KIRBY J: Look, costs means costs.

MS CRENNAN: Costs means costs.

KIRBY J: And it is in the peculiar circumstance of this statute, with its peculiar needs, structures, representation of children - - -

MS CRENNAN: But when we say "costs" means - - -

KIRBY J: We should not construe the statute to control or limit what can be done for the protection of children.

MS CRENNAN: No, certainly, your Honour. But costs means - but I am focusing, just for the moment, on future costs - that issue - and costs - your Honour puts to me costs means costs. Yes, indeed. What are costs? Costs are costs incurred.

GUMMOW J: There is no such thing as "future costs".

MS CRENNAN: No, and costs orders are intended as an indemnity for costs incurred which, as Justice Gummow has pointed out, is a point - it has been highlighted by the Solicitor-General for the State of Victoria, and it is a point which we adopt, with gratitude. We submit it is correct.

KIRBY J: If there is no such thing as "future costs", then the Barro orders fall, unless they can be sustained under section 74, which seemed to me to be dealing with quite a different matter, where there is an Act that is dealing specifically with costs, and not with the protection of - with spousal property. It would be a great misfortune if the Barro orders fall with this case, because that is the way women are protected. Women and children need to be protected, and that was the purpose of the Parliament in its enactment of the Family Law Act. Otherwise men, as usual, will walk away with all the capital.

MS CRENNAN: Well, all I was putting to your Honour was that section 74 assists in relation - possibly, arguably - in relation to that problem being raised in relation to 117(2); that is to say, it may be correct that 117(2), wide as it is, is not sufficiently wide to cover future costs, because future costs are a meaningless category in the context of a general power to grant an indemnity in respect of costs incurred.

KIRBY J: When you say they are a meaningless category, they are a very practical category for children's protection, wives' protection.

MS CRENNAN: I withdraw "meaningless", your Honour. I mean not a category recognised in the context of granting an indemnity for costs incurred. I meant no more than that, your Honour.

GUMMOW J: I suppose we are worried about the children. Why would not 68L(2) authorise an order as the court thought necessary to secure the separate representation by providing in some fashion?

MS CRENNAN: Out of the court's budget.

GUMMOW J: The question then would be, would this order that was made in this case be supportable under 68L(2)?

KIRBY J: It is for the provision of maintenance, it is not for the provision of costs. Costs are dealt with separately in the Act.

GUMMOW J: We are talking about 68L(2), which is not - - -

MS CRENNAN: What the court is wanting to do, your Honour, and I know your Honours regard this as a very important issue, which we agree it is, the court is seeking to secure the separate representation of the child. Now, how can that be done? It could be done by ordering the parties, the parents, to somehow share it. It could be done by the court itself somehow making the funds available, but we would be submitting it cannot be done by resort to the general power to award costs under 117(2).

GAUDRON J: There may be a problem on ordinary principles in reading section 117 as applying to separate representatives in view of the specific provision made in that regard in section 68L(2).

MS CRENNAN: Yes.

KIRBY J: If it is necessary to get separate representation - assume we are into the realm of 68L(2), if that is what is necessary, assume that the husband and the wife had no funds - leave aside this case because we have to test it by the general proposition - assume they have no funds, then if that is what is necessary, why is not the court clothed with the power?

MS CRENNAN: What we would say if that happens and it is necessary to look after the child, the court would be able to secure that separate representation under 68L(2) arguably by making some arrangements that the court funds a separate representative. What it cannot do, we would say, is use 117(2) to order the provision of legal aid and, indeed, taking that one step further, it cannot under 68L order legal aid either. If it is going to secure the representation, it has either, we would submit, got to make an order directed to parties to secure the representation or possibly, secure it itself. What it does not have is the power to order legal aid in order to secure the separate representation, either under 68L or under 117(2).

KIRBY J: There is no mention of parties in 68L(2).

MS CRENNAN: No.

KIRBY J: It can order granny or auntie or uncle or it can order - - -

GAUDRON J: Could they do that without making granny, et cetera, parties to the proceedings?

GUMMOW J: There are some natural justice considerations in all of this, surely?

MS CRENNAN: I do not think I can take our argument any further in relation to it. I think I have made it plain.

KIRBY J: You are not making a natural justice complaint in this case? You were there at the hearing, I think.

MS CRENNAN: Certainly not. One of the end-game problems in relation to our argument on the construction of section 117(2), and I do not want to stray into it necessarily, is, of course, the constitutionality of the granting of power to a Chapter 3 judge to perform what is an executive function. Putting Granny to one side and all of that - because, of course, they could be made parties in any event, most particularly if they are intervening would be expected to - - -

KIRBY J: I am responsible for this familiarity. I think we will call her a grandmother.

MS CRENNAN: A grandmother. I do beg your pardon, your Honour.

KIRBY J: But may you not have another argument before you get to the Constitution, and that is your statutory arguments to the powers and functions of a legal aid commission. What is the power of a judge, even if you joined, to order you to do something which your statutory construct does not contemplate? It contemplates you would be doing something else according to your own internal rules.

MS CRENNAN: Yes, of course. An analysis of what the legal aid body does under its own statutory obligations is, of course, relevant to the characterisation of ordering legal aid as an expression of executive power, if you like. The next point I wanted to make which was this final point I wanted to make is this: that there may be some, dare I suggest it, issue of constitutionality of that kind if one were to suggest that securing separate representation included ordering legal aid to be provided. Indeed, the Full Court of the Family Court in Heard v De Laine dealt with the submission to that effect, that section 68L and the power to secure representation was sufficient to encompass an order for legal aid, declined to accept that submission and did not regard the power as the power to secure separate representation as including that particular power.

GAUDRON J: I suppose there is an argument, Ms Crennan, that section 117(2) and section 68L are both to be construed in the context of the general law.

MS CRENNAN: Yes.

GAUDRON J: That is the view that was taken of the power in issue in Wardley's Case, and that it would not give any power to make an order inconsistent with the general law.

MS CRENNAN: Yes; and indeed, your Honour made observations of that sort in Kable's Case in relation to an issue about a precise power being assessed in the context of limitations on the State judge or, indeed, a Chapter 3 judge - that is to say, reading into general words a power which may go beyond the general law, or be different from or incompatible with, or something of that sort.

KIRBY J: This is the difficulty of hiving off the Constitution as if it is an entirely separate realm as distinct from part of the law of the land.

MS CRENNAN: Yes. Next, your Honours, if I may we will hand up another document. What we have sought to do here for your Honours' assistance is let your Honours have an aide-memoire in relation to the various developments in what you might call the jurisprudence in relation to section 117(2). I am conscious of the time and the number of parties, and this may, on one view - if I go through this now it may avoid the need to read any passages at all from judgments, if I can just give page references as I go, and explain how matters evolved, if you like, as I go. We do apologise, by the way, for handwritten amendments.

I have already dealt with the historical matters which are identified at 1, 2, 3 and what should be renumbered as 5. I have already mentioned Penfold v Penfold which is authority for the proposition that section 117(2) is paramount over section 117(1) and that 117(1) expressed the general rule for family law matters, but that authority of course was before the amendment of (2A).

Next there is a Full Court decision of In the Marriage of Collins. In that case an argument was raised in relation to - that was a Full Court decision in which the facts were that there were no applications for costs by parties but the trial judge made an order for costs against the wife and the Victorian Legal Aid Commission. In considering the powers under section 117(1) and 117(2), the Full Court took the view that the section did not encompass a power to order a non-party to pay costs.

KIRBY J: Is that the one where Chief Judge Evatt was presiding, is it?

MS CRENNAN: Yes. Relevant passages are to be found at pages 1127, 1128, 1129, 1130 and 1131. What happened next was the decision in Knight's Case. The passages which are subsequently relied on by the Family Court judges from Knight - they are well known; I do not seek to read them - are to be found at pages 192 to 193, 202 point 4 and 205. The next development was McAlpin's Case [1993] FamCA 71; (1993) FLC 92-411 at page 80,214. That was also a Full Court decision of the Family Court. The appeal was brought in relation to an order that had been made against a wife. That was a case where an order was made against a wife, part of the reasoning being that she had access to resources from her own family and also from the Exclusive Brethren which apparently was a sect to which she belonged.

It was not strictly speaking necessary, as we point out in our written submissions, for the Full Court to deal with the question of whether or not there was power under section 117(2) to order costs against a non-party because the order made and appealed from did not deal a non-party. But in any event the wife in the case sought to rely on Collins v Collins and there was some discussion in the case about the width of section 117(2) and in that case in the majority judgment the court said:

In view of later developments, we think that the approach taken by the Full Court in Collins and Collins (supra) no longer represents the law. The power of a Court to order costs against persons not parties to the proceedings was extensively canvassed in the decision of the Victorian Full Court in the case of Burns Philp -

They make reference to that. There is also reference to Aiden Shipping and to Knight's Case and then at the bottom of page 80,215 their Honours make this observation:

In our view, on a natural reading of s117(2) of the Family Law Act, this Court's jurisdiction to order costs is similarly unlimited. It is true that s117(1) and (2A) refer to "parties" but s117(2) is not so limited and is expressed in the widest possible terms. We therefore see no reason to confine the jurisdiction of this Court in this area.

So that was McAlpin v McAlpin.

KIRBY J: Did Justice Baker take a different view or did he just not deal with it, do you know? Do not delay; I can look it up myself.

MS CRENNAN: I am rushing a little bit just because I have taken up a little more time than I had thought I would.

Next in the chronological development, anyway, is Pagliarella v Pagliarella. It is No 10 on our list. In that case, your Honour, there was an application for costs to be awarded against the Legal Aid Commission and the separate representative. For the purposes of this case, I just wanted to point out to your Honours that there was reliance on McAlpin v McAlpin. Pagliarella v Pagliarella is No 10 on our list of authorities, so if I can just give you the page reference where the reliance occurs. It is at 80,756 and 757. In the result, there were no costs ordered against the Legal Aid Commission but, as I say, the judge following on from a consideration of Knight's Case in McAlpin v McAlpin expressed views to the effect that section 117(2) was sufficiently wide to award costs against a non-party although, in this particular circumstance, was not satisfied that the Knight's Case considerations were satisfied. My learned junior reminds me the costs were narrow. They related to some sort of interlocutory application.

However, it is just a matter of passing interest, perhaps, but at the bottom of page 80,757, the judge observed that it seemed:

that in considering whether an order should be made against the Commission -

that was the Legal Aid Commission -

the Court should have regard to the public interest in not having Legal Aid Commissions at risk of becoming liable for costs so as to diminish the funds available for the purpose for which they are established nor to cause them to act with such caution that indigent persons involved in litigation may be prejudiced by assistance being refused.

I refer to that, Justice Hayne, because from time to time those sorts of considerations which may be considered extraneous to a proper question of construction of section 117(2), have been noted from time to time in the course of judgment. I just mention that to your Honour just to let your Honour fully appreciate the flavour of the way in which developments have occurred. Next - - -

KIRBY J: It would not be extraneous if what you were looking at was the powers and functions under the statute of the Legal Aid Commission, as it seems to me.

MS CRENNAN: No, of course not, your Honour, and it would not be extraneous if you were looking at the constitutionality, but Justice Hayne was concerned, of course, that I was straying into those sorts of matters in the context of what is primarily a construction argument. Now, next is M v D - - -

KIRBY J: Why do we have to be going to all these single judge decisions in the Family Court?

MS CRENNAN: I will desist if your Honour wishes me to, but I thought if I gave you the page references, it was just a very quick way of understanding how matters had developed in various judgments in the Family Court.

KIRBY J: But once they got the pretty clear hint in McAlpin, then one can understand that judges of the Family Court would say, well it might have been obiter, but that is what the Full Court thinks and therefore we have the power. We should not do it too often, but we have the power to do it where it is appropriate.

MS CRENNAN: Yes. Why do I not go to any detail, just give you the page references. Your Honour is perfectly right. M v D 81,794. The next development is re Z and at page 11, there is the relevant passage. Heard v De Laine is not a case concerning the powers under 117(2). I have already explained it, it was a case in the Full Court concerning the precise ambit of powers under the rubric of securing the separate representation under 68L. In the marriage of S, the Chief Justice of the Family Court, sitting as a single judge, deals with Heard's Case at the bottom of page 129 and decides that 117(2) is sufficiently wide to reward or order the continuation of legal aid, and that is to be found at 135. So, what happens in In the marriage of S is the Chief Justice, in reliance on Knight's Case, construes 117(2) as sufficiently wide to order the continuation of legal aid.

Then Williams v West is a straight application of Knight's Case to section 117(2) and then that brings us to the decision in this case. The relevant pages in those reasons are to be found at 116 and 121.

KIRBY J: Is Justice Faulks' decision reported anywhere or not?

MS CRENNAN: No, it is not.

KIRBY J: Everything seems to get reported in this area of the law. I just thought it might have been reported. What is the current status of the jurisprudence of the Family Court on section 68L?

MS CRENNAN: The current state of jurisprudence is to be found in Heard v De Laine. That is a Full Court decision which is authority for the proposition that the power to make orders to secure the representation does not encompass a power to order legal aid.

KIRBY J: And that was on constitutional grounds, was it, or not?

GUMMOW J: Yes, the words seem to be wider than - - -

MS CRENNAN: It was on a construction point of 68L, your Honour, what was the width of - well, it was 68, the precursor to 68L, yes, thank you.

GUMMOW J: What is the citation of Heard? It is no 12 on your list, thank you.

MS CRENNAN: Yes, your Honour. I was just actually looking for precise page numbers where the passages are to be found, but it is authority for that proposition as I outlined it.

CALLINAN J: Ms Crennan, could I just ask you this. In non-statutory jurisdictions the Knight principle could be invoked to meet any oppression by a legal aid body funding somebody oppressively against a person who did not have the funds and could thereby be disadvantaged and that seems to be the position in the non-statutory jurisdictions and Knight's Case could probably be invoked in that circumstance.

MS CRENNAN: We would say possibly, your Honour. I mean, assuming that the principles could all be brought into play.

CALLINAN J: Yes, assuming all the other criteria were satisfied.

MS CRENNAN: Yes. Yes, I took your Honour's question on that basis.

CALLINAN J: It would certainly be a relevant consideration within those criteria that perhaps the power of funding was being used oppressively.

MS CRENNAN: Yes.

CALLINAN J: What is the solution to such a problem in this sort of jurisdiction, statutory jurisdiction, if your argument is to be accepted? Is there no solution to that problem?

MS CRENNAN: I think it is very difficult to find a solution to that problem because - - -

KIRBY J: What about Wednesbury unreasonableness in the exercise of your statutory powers?

MS CRENNAN: The structural reason why it is difficult is because - - -

CALLINAN J: There may be some remedy outside the Family Court perhaps.

MS CRENNAN: I suppose my difficulty is - on our first argument, of course, we would say it could not be done, but on our second argument, and I understand that is what your Honour is directing my attention to, we would have to concede this much, I suppose: while we cannot think of any example of circumstances, once there is power to order costs against a non-party, if you satisfy all the discretionary criteria in some way, maybe it is possible to do it. Of course, the problem with it is that ordering legal aid may not always be precisely correlative to ordering costs against a non-party.

MR CALLINAN: No, but it might be.

MS CRENNAN: And the other problem with it, if I may say so, to complete it, your Honour, is Knight's Case, of course, is costs against a non-party when they are a proper indemnity. Of course, you are talking about, here, something oppressive, or delinquency or something, so I am assuming you are talking about a situation where the matter is completed, and you are considering an indemnity to be provided by a non-party.

KIRBY J: Of course, even Knight's Case is a statutory jurisdiction in the sense that it was under an order of the Supreme Court of Queensland, made pursuant to statute. All costs, save in Chancery and Equity, are statutory.

MS CRENNAN: Yes, that is so. Of course, there is some force in an observation of Justice McHugh in Knight's Case, which is that, even given all of that, jurisdiction is not unlimited, or discretions are not unlimited under general discretionary powers to order costs. I mean, for example, it might be some answer to your Honour to say obviously, even a Knight's Case-type section cannot possibly confer jurisdiction, or justify an exercise of a discretion to award costs against, you know, General Motors, or a passer-by, or whatever.

GUMMOW J: Well, they would be a stranger to the controversy. In the Federal sphere, there would be a very large Chapter III problem. There would be no matter, if they were properly joined.

MS CRENNAN: Of course, yes. I mean, I was choosing a very extreme example. I suppose a practical answer to your Honour is just the - it is not the extravagance of the example, but it is just extremely difficult to think of one where we could analyse it in terms of Knight's Case.

CALLINAN J: You might just have to trust the authority, not to - - -

MS CRENNAN: You might just have to.

CALLINAN J: - - - behave oppressively and, being part of the executive, it will be judged in the way - at the ballot box, or elsewhere.

MS CRENNAN: Well, perhaps that is the actual broad answer to it all. Of course, the Legal Aid Act deals in great detail with the obligations. In other words, a great deal of legislative guidance is given by Parliament as to how the executive is to go about its tasks. It is one thing for an outsider to both Parliament and the executive to say, "Well, this is all very oppressive because we think this individual person ought to be funded by legal aid. We do not like their decision not to continue funding." But examined more completely, one will see that that executive decision is animated by considerations obliged under the statute and, of course, under the Commonwealth/State agreement and so forth.

KIRBY J: Is the representation of children in the Family Law Act simply a reflection of the sort of statutory equivalent of the sovereign's obligations as parens patriae to children, or does it arise out of some international obligation of Australia under the convention on the rights of the child?

MS CRENNAN: I cannot answer that with any confidence, your Honour. I can say that it has been part of the family law legislation since 1975, so it has always been part of the modern family law legislation that there be the ability for the court to order separate representation for the child and to make such orders as are necessary to secure it. What the precise - - -

GUMMOW J: Well, it partly comes from the matrimonial causes power which talks about custody - - -

MS CRENNAN: Yes, so that you probably do not need to go beyond the - - -

GUMMOW J: It partly comes from reference to State power for non-legitimate children.

MS CRENNAN: Yes. What I could not answer is whether there was a particular international convention involved in addition to those sorts of matters. Perhaps it might be important just to spend a few minutes looking at the Legal Aid Act in - I am concerned if I do go to- I am really in the Court's hands. Perhaps I should look to the learned presiding Judge. I am happy to consider in more detail the obligations on legal aid under the Legal Aid Act, but I am a little concerned that that does, of course, stray into the constitutionality issues.

KIRBY J: Not really, I do not think, just speaking for myself, because I think I was the one who raised this. There would be an argument that an order for costs, as such, could not be an order for costs if it were to burden a statutory body with obligations that are different from those which are the constituting authority that established it.

MS CRENNAN: The other point, perhaps, is that in - - -

GUMMOW J: The other point is the point made by Justice Gaudron, I think, in referring to Wardley [1980] HCA 8; 142 CLR 237, and, I think, in the judgment of Justice Stephen at 246 to 247 and, perhaps, the judgment of Justice Wilson at 287 to 288. The point shortly is this, a section like 117 has to be construed against the background of the general law, including State law. One would not ordinarily treat that as empowering the Court to require a body incorporated after State law to do something not permitted to it under its constituent State statute. There may be an inconsistency question at some stage but that would be the ordinary starting point. And one would not ordinarily expect this section to be empowering the Family Court to require a legal aid body to do something which its statute, which after all gives it legal capacity, to go beyond its legal capacity.

MS CRENNAN: Yes, that is right, your Honour.

GUMMOW J: Wardley is talking about a very different subject matter - it is an award. But the award is given the force of the Commonwealth law - that is talking about employment - and then one looks to State law and, generally, some characteristics will apply.

MS CRENNAN: Yes.

GUMMOW J: I am sure there are other authorities to the same effect.

MS CRENNAN: May I spend no more than a few minutes quickly going through some of the extracts from the Legal Aid Act - not to read them; just to pass through them with occasional comments as we go - which were provided to your Honours together with our list of authorities. We went to the extent even of giving your Honours the definition section which defined legal aid because at (b) that definition picked up any legal services that may be provided by a legal practitioner. Of course, part of Justice Faulks' order obliges legal aid to provide those services.

Then your Honours have the objectives of Victoria Legal Aid and relevantly under (b) of section 4 Victoria Legal Aid is obliged:

to manage its resources to make legal aid available at a reasonable cost to the community and on an equitable basis throughout the State -

Then there are its functions and powers at section 6. Just passing through, section 5 is relevant to the argument of one of the interveners in relation to Crown immunity. Then 7 imposes duties on legal aid in performing its functions and (a) it has to ensure that it:

is provided in the most effective, efficient and economical manner - - -

KIRBY J: Section 6(1)(a) is relevant. The functions are:

to provide legal aid in accordance with this Act;

MS CRENNAN: Yes, in accordance with the Act. That is right. That is the overarching concern. Then 7(c), one of the duties is:

subject to and in accordance with the agreements and arrangements made between the Commonwealth and the State.....

(i) determine or vary priorities -

and so on:

as between classes of persons and classes of matters or both -

I will just, if I may, direct your Honours' attention to section 49(2):

Any such agreement or arrangement -

which is dealt with in section 7(c):

shall, to the extent that it involves matters within the purview of VLA, be binding on VLA.

Hence the affidavit which I have read. We direct your Honours' attention to 8 and 9. At 46 there is provision under the Legal Aid Act for a court to:

make in favour of an assisted person any such order for costs as it may make -

otherwise in relation to a party. Under 47:

All costs received or recovered which are payable to VLA -

have to be paid to the VLA fund. It is a theme in his Honour's judgment that VLA was somehow making some profit or whatever in relation to the estimation of future costs. Then 48 covers costs and 49 covers, as I have mentioned already, the State and federal arrangements.

KIRBY J: Is there anything in the generality of the language of 48 that says where costs orders are made against VLA, to pay those costs orders, or something of that kind?

MS CRENNAN: In essence, 48 is structured so that when costs orders are made against an assisted person, that is to say the person who has legal aid, they fall on the assisted person but then in subsection (2):

Subject to sub-section (3), VLA shall pay so much.....of the amount requested to be paid as VLA considers just and equitable.

So the court does not directly order costs against legal - - -

KIRBY J: The trigger is 48(1)(b) which says where:

the court.....makes an order in the proceeding directing the assisted person to pay costs -

so there is no trigger in relation to costs ordered against the VLA.

MS CRENNAN: That is right.

KIRBY J: How then could they pay out of the fund any sum lawfully that was ordered to be paid?

MS CRENNAN: Are you talking about this case, your Honour, or generally speaking?

KIRBY J: I am trying to see how the order in this case could impose on the VLA under its statute a lawful obligation to pay out of its fund an amount.

MS CRENNAN: Yes, that is a good point, your Honour. It is difficult to see.

GUMMOW J: It talks about costs incurred.

MS CRENNAN: Yes, that is right and accordingly, in so far as these are future costs or future services, it seems to us there is no provision in this Act for the legal aid body to do what it has been ordered to do by Justice Faulks. I think that answers your Honour's question.

GUMMOW J: Is there any provision for an administrative review of decisions under the Legal Aid Act to grant or withhold aid?

MS CRENNAN: There is certainly internal review and there are legal aid - - -

GUMMOW J: Section 33 and thereabouts.

MS CRENNAN: Yes.

GUMMOW J: Part VI.

MS CRENNAN: There are legal aid review committees - there is a panel, as I understand it, of independent reviewers who undertake the review functions previously undertaken by the legal aid review committees which are described in the Act in Part VI, I think it is, yes, reconsideration and review of decisions. There is a structure and mechanism for internal review of a decision, for example, refusing legal aid or whatever.

KIRBY J: There is a special provision under the Crimes Act of Victoria which I had the pleasure of looking at in Frugtniet in Victoria. Where is the authority, either under the Crimes Act or this Act for Victoria Legal Aid to pay out an amount which a court orders to be paid out under the Crimes Act?

MS CRENNAN: 360A in its terms. We have given your Honours a copy of that.

KIRBY J: Does it say, "And the VLA shall have the power to pay out that money when so ordered"?

MS CRENNAN: Yes, shall provide, that is right.

KIRBY J: That is the source of the power in that special case.

MS CRENNAN: Yes.

KIRBY J: There is nothing equivalent in the case of the Family Law Act?

MS CRENNAN: That is right. Subsection (3) provides that despite anything in the Legal Aid Act Victoria Legal Aid must provide legal representation in accordance with an order. So that distinguishes that situation from the situation here with the order of Justice Faulks. Of course, there would be no problem, we say, en passant, about a State legislature bestowing that executive function on a State judge administering State legislation, whereas it may be a problem in respect of a Chapter III judge, not that we need to deal with that, but I just mention that in passing.

KIRBY J: If I were the auditor of VLA and we got an order from a Federal Court saying VLA has to pay a sum, the first thing you would look at is where is my power to pay that sum and you would have to then go to your Act and you would see there is no specific power then and therefore, you would have to say that the power comes from the order of the federal authority although it imposes on the State authority an obligation to do something which the constituting statute of that State authority does not authorise it to do.

MS CRENNAN: That is right. In order to avoid a contempt of the Family Court you would have to probably breach the provisions of the Victorian Legal Aid Act because you would have to provide money out of your fund for purposes not covered by the provisions of the Legal Aid Act.

GUMMOW J: Well, there would be a section 109 question probably lurking in there.

MS CRENNAN: Yes, there would, your Honour. I think we did give your Honours a copy of section 41 which does deal with the legal aid fund and how it is to be dealt with and that includes subsection (3):

Out of the Fund shall be paid -

(a) amounts payable in or in connexion with the provision of legal aid;

(b) the remuneration and allowances of the directors.....

(c) the administrative costs and expenses.....

(d) such other amounts as are necessary in order that VLA may properly exercise and perform its powers functions and duties under this Act.

So there is no pigeonhole for taking money out of the fund by way of responding to an order of the kind that your Honours are considering now.

HAYNE J: Why is not 3(a) the pigeonhole, given the breadth of the definition of "legal aid"?

MS CRENNAN: We would have said "provision of legal aid" in that subsection refers to legal aid provided under the Act.

HAYNE J: But it is a defined term "legal aid".

MS CRENNAN: It would take one back, your Honour, I would have thought to the functions and powers which are set out in section 6 and under (1)(a) the instrumentality has a power:

to provide legal aid in accordance with this Act.

That reference to "legal aid to which your Honour directed me would be legal aid under this Act we would say, not legal aid as ordered by a Family Court judge.

KIRBY J: I may be wrong but I have a conception of a statutory corporation as being a legal person which has no more powers or rights to do anything than it is conferred by Parliament.

MS CRENNAN: That is correct, your Honour.

KIRBY J: And if that is so, then you can attach a federal order where the order is made against a party who has been granted legal aid, but I find it difficult - - -

MS CRENNAN: Difficult with an instrumentality.

KIRBY J: - - - to attach it to the instrumentality itself, which has only such powers or authorities as the Victorian Parliament is cloaked with. Anyway, I think we have explored that area.

MS CRENNAN: Of course, that is relevant - just if I make two final points. I wanted to mention, also, section 24 of the Legal Aid Act, which provides, in detail, for circumstances in which legal assistance may be provided in accordance with the Act. The final point I wanted to make, your Honours, is this; that the very problems we are now talking about, we would submit, have a bearing on what would have been the intention of the Commonwealth legislature in passing section 117(2) and 117(2A) in the form in which it did. That, of course, tracks back to our argument that, even if we are wrong on our first narrow construction point, and even if the section is wide enough to cover non-parties - a la Knight's Case - it is not wide enough to encompass orders ordering future costs and, effectively, the provision of legal services, together which answer to the characterisation of legal aid. If your Honours please.

GAUDRON J: Thank you, Ms Crennan. Yes, Mr Solicitor for Victoria.

MR GRAHAM: May it please the Court. Noticing the time and in the interests of brevity, may I begin by adopting as part of our submissions the written outline of submission provided to the Court yesterday. I only wish to develop a few points beyond having taken that step. Your Honours will have perceived that we are not concerned to argue that the Family Court lacks the power to make an order against a non-party. Our submissions are confined to the question whether the order made by his Honour Justice Faulks was an order which is authorised by section 112(2), notwithstanding that it was made against a non-party.

Underlying the issue between us and the respondents, really are two issues. One is whether, under section 117(2) of the Family Law Act, the Family Court may make an order against a legal aid body that that body should provide legal aid or legal assistance. Thus, in the present case, the question will be whether the Family Court had power to order Victoria Legal Aid to provide legal aid as defined in its Act, or legal assistance as defined in its Act.

There is a second question that arises in this case when one goes to the particular terms of the order of Justice Faulks. That question is whether that order can be, itself, having regard to its unusual, and I would say, with respect, peculiar terms, could be characterised as falling within section 117(2), having regard to the way in which it was formulated.

Our primary submission is that the power in section 117(2) to make an order as to costs, or an order as to security for costs, does not extend to the making of an order that a legal aid body provide legal aid or assistance, either in the form of money or in the form of services, and, secondly, that the section does not extend to making an order in the terms that his Honour, Justice Faulks, made in paragraph 3 of the order, which appears at page 60 of the application book.

We say - and this is the point that we stress in paragraph 3 of the outline - that, as best we can construe the order of Justice Faulks, it was an order that Victoria Legal Aid should subsidise the person who - the child, or the provision of legal services to the child and, thus, to ensure that that child had legal representation in the proceedings before his Honour. Now, the Full Court of the Family Court had previously held, in the case of the marriage of Heard v De Laine - the citation is given in paragraph 3 of our outline - the Family Court does not have a power of that kind.

It is interesting to note that Justice Faulks, at page 121 of the application book, expressly disavowed that such a power existed in the Family Court. But when one goes on to see what his Honour said - and I will not read the passages - further in his judgment, it is apparent that it was precisely that which he set out to achieve to ensure that legal aid or legal assistance be provided to the child of the disputing parties, and I refer the Court simply to what his Honour said later, at page 124, and pages 134 and 135.

GUMMOW J: But how is it to happen? To whom was Victoria Legal Aid to pay the money and from whom was it to get a good discharge and what were the obligations of the recipient of the money?

MR GRAHAM: Your Honour, I simply cannot answer that question and your Honour has asked it before and I think other members of the Bench have as well, but we are not told to whom Victoria Legal Aid will provide the sum of $9,000-odd and - - -

GUMMOW J: "For the future costs" suggests some sort of trust, but there is no identification of the trustee at the moment. Is it to be kept as a security somewhere?

MR GRAHAM: Or perhaps, your Honour, it was simply the intention of his Honour to say to Legal Aid, "You must make available out of your funds that sum of money to be used for the provision of legal costs" without going beyond that and saying how that was to be done.

GUMMOW J: But was Victoria Legal Aid bound to cede to that result?

MR GRAHAM: On the terms of the order arguably not because of, I say with respect, the imprecision of the order. Testing it the way that I think your Honour Justice Hayne put it, how would one formulate an allegation of contempt if the $9,000 was not forthcoming, it seems impossible.

GUMMOW J: Or embezzled when it had been forthcoming, spent on the races.

MR GRAHAM: Indeed. Then, if your Honour goes to the second limb of the order, what is contemplated by the facilitation, the making available of the child's representative services and providing for the payment of the costs of fees, again leaves one very much in doubt as to at least the scope of the obligation and very much in doubt as to how it would be enforced or how it could be shown to have been fulfilled.

KIRBY J: What does that actually mean? That looks like a term of art in the Family Law area, "the child's representative services". Is that a service provided by the VLA in the past?

MR GRAHAM: Yes, your Honour. There was an individual who was an employee of VLA, the person whose name appears in the papers. I will not be able to pick it up quickly. The direction appears to me to ensure that that person's services be - - -

KIRBY J: So although we do not know this, his Honour's order was directed to VLA which would have known that he was saying - the judge was saying, in effect, you either have to make this money available within your own internal accounting, or you have to facilitate making available this particular officer.

MR GRAHAM: And that officer to provide services. It may be that there shold be an "apostrophe s" after representative, and it might make a little more sense. Just to move on to the major point that we would stress in our argument in paragraph 4 of the outline, historically, and customarily, we know that orders for costs are made to indemnify one party in respect of legal costs previously incurred, and when I say legal costs, I would have to add disbursements as well, and such things as expert witnesses's expenses and so on.

GUMMOW J: Or a security, which you explain in paragraphs 10 and 11.

MR GRAHAM: Yes, and the security is, again, a security to provide an advance for the indemnity which is ultimately to be provided by the final order of the court.

KIRBY J: That, of course, is what it has been until now. We are looking at the words in a particulr statute that has a particular scheme.

MR GRAHAM: Yes, and your Honour has made this point this morning and we note it.

KIRBY J: Did I make that point, did I?

MR GRAHAM: Your Honours, I stress the breadth of the words "as to costs" which would perhaps be wider than an order for costs, but still within the word "cost" is to be found the limitation for which we contend, namely, that it is something in the nature of an indemnification in respect of costs already incurred, or when one talks of security for costs, indemnity, if indemnity be required in the future.

The same rationale, we would concede, applies when the court exercises its jurisdiction to order costs against a non-party. The order is made against the non-party, but the purpose of the order is to indemnify the party who has incurred legal expenses and whom it is thought to be just to be indemnified having regard to the conduct of the non-party rather than that successful party be left out in the cold, as it were, because of the nominal party being a person of no means. I want to say one word - a few words, rather, about this Court's decision in Breen v Breen, which we mention at the end of paragraph 4 of the outline. I say this - - -

GAUDRON J: They were short reasons given on a special leave application, were they not?

MR GRAHAM: Yes, your Honour, but - - -

GAUDRON J: Without assigning any particular head of statutory power to the order in question.

MR GRAHAM: Your Honour has in a sentence put my submission. I would respectfully adopt your Honour's formulation of what happened in that case as my reason why the Court should not regard Breen v Breen as standing as a particular obstacle to the decision which we contend should be made in the present case.

KIRBY J: But it does suggest the reaction of the three Justices who sat to the statutory question, which bears some analogy, and often statutory construction is a matter of intuitive response rather than a lot of detailed analysis.

MR GRAHAM: Your Honour, I naturally would accept that without reservation. Notwithstanding the press of events on special leave day, which we have all experienced, the pronouncement, which was a considered pronouncement of short reasons, not a reserved judgment but a considered statement at greater length than sometimes occurs, then obviously it is entitled to due respect.

But, on analysis, Breen v Breen is a case where the Court did not choose to decide whether the order in question should be supported under section 117 or under section 74. We would accept that the order could well be supported under section 74, having regard to the fact that it was made in favour of a wife as against a husband, and could be characterised as an order for maintenance, not in the appropriate sense of that word that your Honour Justice Hayne used earlier, but in the matrimonial sense.

The order in the present case goes a long way further, of course, than an order made in that case because an outsider is being asked to provide the funds, and section 74 plainly could not be called in aid.

GAUDRON J: How much longer will you be requiring?

MR GRAHAM: I will be about two or three minutes, if I may continue to conclusion before lunch, your Honour.

GAUDRON J: Thank you.

MR GRAHAM: We simply say that - I will move straight to paragraph 7 - the power conferred by section 117 does not enable the court to make an anticipatory order. It does not enable the court to make an order against VLA to subsidise a person who is a party to a proceeding before that court.

There is an analysis in the written submissions of the Solicitor-General for New South Wales concerning the terms of the order of Justice Faulks in paragraphs 12 to 16 of his written outline. I would respectfully adopt that without going into it.

Finally, I would say - and if I can refer the Court to paragraphs 10 and 11 of our outline - that in no way could the present order be categorised as an order for security for costs. Members of the Court are entirely familiar with the forms that such an order may take but we would say that it could not possibly be said that an order against an outsider to subsidise or provide funds on an ongoing basis could be said to be providing security for costs. Security is designed to secure the later payment by a losing party of costs previously incurred by a successful party.

If the Court pleases, that is all that we wish to say on the construction point, and I do not seek to move into even the first of the constitutional points since my learned friend, Ms Crennan, did not address argument on that point at this stage.

GAUDRON J: Yes. Thank you, Mr Solicitor. We will resume a little earlier this afternoon - 2 o'clock or perhaps 2.05.

MR GRAHAM: If the Court pleases.

GAUDRON J: The Court will adjourn, we will say, until 2 o'clock.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.07 PM:

GAUDRON J: Yes, thank you, Mr Solicitor.

MR MEADOWS: May it please the Court. It seems to be conceded, on all sides, if it please the Court, that the Family Court lacks any inherent power to order costs, and that one must look to the provisions of the Family Law Act as the only potential source of power to make the order which was made in this case. In our submissions, at paragraphs 9 to 17, we make the point that the Crown, by its prerogative, is exempt from the payment of costs in any judicial proceedings. Absent some statutory provision abrogating that immunity, no order for costs may be made against the Crown.

A general power to award costs, such as the one which we are looking at in this case, will not suffice. The immunity can only be taken away by express words or necessary implication, and that proposition can be supported by the decision of this Court in Affleck v The King [1906] HCA 2; (1905) 3 CLR 608, particularly at 630. Also in Attorney-General of Queensland v Holland [1912] HCA 26; (1913) 15 CLR 46 and, particularly, in the judgment of Justice Barton at page 56, the Chief Justice at pages 49, 53 and 56 and, also, the judgment of Justice Isaacs, who, although he dissented in the result, he did not deny the proposition which I put.

Now, nothing in these cases is inconsistent with what this Court said in Bropho. The simple proposition is that section 117 of the Family Law Act does not manifest any intention that it should apply so as to abrogate the Crown's immunity from the payment of costs, let alone that immunity in respect of the Crown in the right of a State.

KIRBY J: How does that argument run in relation to the general powers that are made under State Supreme Court Acts, and so on?

MR MEADOWS: In regard to civil proceedings in a State, it is normally covered by a Crown Suits Act or a Crown Proceedings Act, which specifically provides for orders for costs to be made against the State and in this particular instance, as we pointed out in our submissions, the Crown Proceedings Act of Victoria in section 25 provides for that in relation to civil proceedings where the State is a party. Perhaps I should draw attention to this aspect, at this particular time, that those pieces of legislation which are common to all States also provide for the manner in which payment of any order for costs is to be procured. In effect, there is a standing appropriation which enables the payment of any costs ordered. Of course, in this particular instance, any order for costs against the State or an agency of the State would require, we would submit, a separate appropriation.

KIRBY J: But, is the key in the words "agency of the State", given that the Act says that it does not represent the Crown?

MR MEADOWS: Yes, if I might come to that point. But for section 5 there would, in our submission, be no question that the Victoria Legal Aid is an agency of the Crown.

GAUDRON J: Is there not something in the Family Law Act enabling child welfare authorities and departments to intervene, which then makes them, if they intervene, parties who would then be, one would have thought, caught up by 117?

MR MEADOWS: Once they become a party, I accept that, your Honour.

GAUDRON J: Well, it makes it a bit difficult to maintain an argument that 117 does not bind the Crown if you relate it back to the intervention areas where presumably one is talking about State child welfare departments.

MR MEADOWS: We make the proposition, your Honour, that absent some statutory provision making it plain that an order for costs could be made against the Crown, then the Crown is immune from payment of costs.

KIRBY J: This is just going back to basic principles, that the Crown's immunity is there unless it surrenders it by statute or has it taken away by statute to which it gives assent.

MR MEADOWS: Quite so, your Honour.

GUMMOW J: It is more complicated than that because there is a federal dimension, which Crown?

MR MEADOWS: Well, this is another issue. That is why I said earlier - - -

GUMMOW J: I did not think we were debating constitutional issues.

MR MEADOWS: Well, I have not sought to engage the Court in a constitutional debate at this stage, but if I can just come back to the point I was making about Victoria Legal Aid. Normally the statement of legislative intent in that section, that the agency is not to represent the Crown, that would be sufficient for it to be concluded that Victoria Legal Aid was not entitled to the prerogatives of the Crown. However, as the Court pointed out in Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219 and particularly at 230, an agency of the Crown:

may be endowed with the attributes of the Crown for one purpose but not for others.

We would have argued, correspondingly, an agency of the Crown may, by legislation, have certain attributes of the Crown taken away from it but not for other purposes. What we would argue is that all that can be taken from section 5 of the Legal Aid Act is that in the exercise of its functions and duties Victoria Legal Aid does not enjoy the prerogatives of the Crown. Those functions and duties are to be found in sections 7 and 6 of the Act and it can be conceded that in the exercise of those functions and duties Victoria Legal Aid does not represent the Crown.

KIRBY J: Section 5 is absolutely general.

MR MEADOWS: It is in general terms but, in our submission, for other purposes VLA does represent the Crown and this is for the reasons which we elaborate in paragraphs 21 to 27 of our submissions because if you look at - - -

GUMMOW J: Ordinarily, I would have thought, if any intervener were to venture upon a construction of the Victorian statute it would have been the Solicitor-General for Victoria.

MR MEADOWS: Quite so, your Honour.

GUMMOW J: He has not ventured on these matters.

MR MEADOWS: That is quite so and that is why I said we would have argued, your Honour, but nevertheless if I could just complete the proposition. In our submission, for other purposes the VLA does represent the Crown and what we say is plain enough that notwithstanding section 5 the VLA is an agency of the Crown because when it comes to the issue as to whether it can be mulct in costs that is something quite outside its functions, duties and powers. In those circumstances, section 5 cannot have any application because if you look at - - -

KIRBY J: But the attack then is more fundamental. It is not section 5 or the Crown's immunity has any relevance, it is just that it is not something this particular authority is, by statute, permitted to do or empowered to do.

MR MEADOWS: Quite so, but we say - I do not see how the agency can be empowered to have a costs order made against it. What we say is it is immune from an order for costs in respect of its general status as, on all attributes, an agency of the Crown but for the provisions of section 5. Still, even if we be wrong in this regard, the point is not unimportant. Other legal aid bodies in Australia do represent the Crown. New South Wales expressly so. In my own State, whilst our statute is silent on the point, our Legal Aid Commission has all of the attributes of an agency of the Crown. Provision is made for an order for costs to be made against the commission in limited circumstances, thus implying that in all other respects the commission enjoys Crown immunity from costs. The situation in Tasmania is the same. On the other hand, like Victoria Legal Aid, Queensland Legal Aid does not represent the Crown and nor does the South Australian Legal Services Commission. Now, I can provide the Court with a schedule of the relevant provisions if that is thought desirable.

What is significant is that if it be held that Victoria Legal Aid can be mulct in costs, it does not follow that other legal aid bodies in this country can be, particularly if they enjoy immunity from costs as an agency of the Crown.

Finally, we note that the Commonwealth maintains that section 117(2) is wide enough in scope to empower the Family Court to make an order for costs against a State or an agency of a State even though not a party to the litigation: see paragraphs 1(a), 9 and 11 of their submissions. We would submit this is plainly incorrect for the reasons that we have set out in paragraphs 9 to 17 of our submissions regarding Crown immunity from costs. The Commonwealth's submission is, I would suggest, somewhat surprising as by parity of reasoning the section must also empower the Family Court to make an order for costs against the Commonwealth or an agency of the Commonwealth.

KIRBY J: That may show the perfect neutrality of the Commonwealth.

MR MEADOWS: It may, but let me carry on further. It is rather the reverse of the proposition which was adopted by this Court in Jacobsen v Rogers that, since it had been intended that the legislation should bind the Executive Government of the Commonwealth, there was no reason to support a lack of intention to bind the executive governments of the States. So, if you reverse that proposition, there seems to be no reason why, if the Commonwealth maintains it applies to the States and agencies of the States, it should not apply to the Commonwealth and the agencies of the Commonwealth.

If the Commonwealth is right in that respect, as it is the Commonwealth which provides legal aid funding for Family Court matters under the present arrangements, it would seem that by its submissions the Commonwealth has provided the Family Court with the answer to its dilemma of how to get legal aid funding for child representatives, and that is to make an order for costs against the Commonwealth or an appropriate Commonwealth agency.

It would seem that, in light of the Commonwealth's submissions, it could hardly maintain to the contrary. The only other point that I wanted to make again was that if it were true that an order for costs could be made against a State or an agency of the State, the question of appropriation then arises. What would happen if such an order were made against a State. Surely it would require an appropriation to be made, and, absent an appropriation, how could the payment be made. If it please the Court, they are our submissions.

GAUDRON J: Yes, thank you, Mr Solicitor. Yes, Mr Solicitor for South Australia.

MR SELWAY: If it please the Court. We agree with the submissions of Western Australia that section 117 of the Family Law Act does not enable the Family Court to make an order for costs against a body having the prerogative immunities of the Crown. If any such order is to be made, the power has to be found elsewhere, and we think probably section 64 of the Judiciary Act. However, we disagree that the Victoria Legal Aid enjoys the prerogatives of the Crown and we would refer the Court, without taking you to the detail, to page 2 of our further written submissions paragraph (d).

Beyond that, we adopt the submissions of New South Wales as to the meaning and effect of section 117 of the Family Law Act, and we agree that that section did not authorise the court to make the orders made in this case.

KIRBY J: Your first concession is a concession against interest because, as I understand it, the provisions of the South Australian Legal Aid Act are very similar to section 5 of the Victorian Act. So you would agree the South Australian Commission does not enjoy the shield of the Crown.

MR SELWAY: The shield of the Crown is a different question, your Honour. It does not enjoy the prerogative immunities of the Crown in legal proceedings. We make the point that the establishment of bodies corporate with powers to sue and be sued has been understood since the 19th century, in our submission, as a technique to overcome the immunities from suit, particularly in liability in tort, and that is what has happened here, or at least one of the reasons why it has happened here. So, to the extent that is a concession against interest, we make it, your Honour. If it please the Court.

GAUDRON J: Thank you. Yes, Mr Solicitor for New South Wales.

MR KATZ: If the Court pleases, given the time, I do not, myself, feel able to seek to develop orally in detail the written submissions which we have filed with the Court. If I may, I will content myself with just a couple of very brief points.

One is, I suppose, directly in response to something said this morning by your Honour Justice Kirby about the use of the word "costs" itself in section 117. I think your Honours may have a brief extract from a decision

of the American Supreme Court in the case of Morrissette v United States, [1952] USSC 8; 342 US 246, a case from 1952.

GUMMOW J: Is this in your outline?

MR KATZ: It is not. This is something, as I say, directly in response to something said by his Honour this morning, and your Honours have an extract from page 263, the opinion of the court delivered by his Honour Justice Jackson, and it is our submission that what his Honour had to say at page 263 is equally applicable to the issue of the construction of the word "costs" itself. His Honour said, about halfway down the page:

where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.

KIRBY J: They key is in those last words, because the suggestion here is, in the context of the Family Law Act, that you have to be providing costs that are apt to the proceedings in the Family Court of Australia, which include proceedings that involve representatives of children, and the rights of married women.

MR KATZ: Yes. Well, as to the issue of married women, with respect, I have no cavil with the approach which appears to have been taken, as I understand it, for at least a century in connection with matrimonial causes proceedings, both here and in England; that is, of requiring the male party to the marriage to furnish money to the female party to the marriage for the purpose of conducting litigation as between them.

GAUDRON J: Initially, that was premised on the liability of the husband for the wife's debts of necessity. I doubt if it would still be premised on that theory.

MR KATZ: Yes. It seems, at one stage, it had something to do with the Married Women's Property Act, for instance - - -

GUMMOW J: No, before that.

MR KATZ: In any event, whatever would have been the rationale in the 19th century, it seems to have been swept away. But, as with many legal concepts, another rationale pops up to take its place when the original one disappears.

KIRBY J: That is the suggestion about the meaning of the word "costs" in this Act.

MR KATZ: I am sorry?

KIRBY J: That is the suggestion about the ambient meaning of the word "costs" in this Act.

MR KATZ: Not by me, no.

KIRBY J: No, I know. But you have to understand Parliament's provision in the most general terms, as to costs, in the context of a very peculiar Act.

MR KATZ: Yes, that is the second of the points that I wanted to deal with and I must, before introducing it, begin with an apology. There is a matter omitted from our submissions which ought to have been in our submissions, and I must take personal responsibility for the omission. It is a decision of this Court in a matter called Ascot Investments Propriety Limited v Harper [1981] HCA 1; (1981) 148 CLR 337, and the circumstances here were these: the Family Court had made an order requiring a company to register a transfer of shares from the husband to a marriage to the wife of the marriage. The transfer had not, in fact, been presented to the company for registration but, nonetheless, the court ordered that the company should act on the transfer, and a question arose before this Court as to the power of the Family Court to make an order as against the company in those circumstances.

At page 349 in the reasons of his Honour Justice Gibbs there is a reference to the fact that the submission was made for the wife that the court had power to order the company to register the shares by virtue of certain nominated provisions of the Act: section 80(d), section 80(k) or, alternatively, section 114(3), as they were at the time. May I say, before I go further, that Justice Gibbs' reasons for judgment in this case were concurred with by Justices Stephen, Aickin and Wilson. At the bottom of page 349 Justice Gibbs said that:

It may be accepted that the orders fall within the literal words of section 80 and section 114(3), and that they were made in aid of the jurisdiction of the Family Court. The question that then arises is whether the powers conferred by those sections, wide as they admittedly are, extend to enable the Family Court to make an order which will impose new duties on persons who are not parties to the marriage.

His Honour then describes them thereafter as "third parties" and his Honour says:

The question arises equally under both sections, and does not depend on the particular words of either section.

His Honour then deals with various authorities upon which the wife relied to support the power of the court to make such orders and reaches his conclusion relevantly at page 354, in the first complete paragraph. His Honour says this:

The authorities to which I have referred establish that in some circumstances the Family Court has power to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party. They do not establish that any such order may be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform.

And then follow the words upon which I particularly rely for present purposes:

The general words of sections 80 and 114 must be understood in the context of the Act, which confers jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words.

Now, your Honours, our submissions as to the first issue with which we dealt in our written submissions, that is the power of the court under subsection 117(2) to make orders for costs against persons other than parties, was focused entirely internally, if I may put it that way. It focused only on the language of the three relevant subsections of section 117. For the reasons which we gave, we are content still to submit that on its proper construction, section 117(2) does not authorise the court to make orders for costs against persons other than the parties to the proceedings.

But we should not have sought only internal indications as to the proper construction of the provision. Indeed, the way to approach the matter is as his Honour Justice Gibbs on behalf of the Court said: the matter should be approached on this basis, that in the absence of clear and unambiguous words, a power conferred on the Family Court to make orders will not extend to a power to enlarge the obligations of persons other than the parties to the proceedings. And, with respect, when one couples together the internal matters upon which we have relied, when one couples that together with this presumption, in my submission, the case is overwhelming that there is no power in the court under 117(2) to make orders against persons other than parties to the proceedings. If your Honours please, those are our oral submissions.

GAUDRON J: Yes, thank you, Mr Solicitor. Now, you are to proceed, Mr Walker?

MR WALKER: Yes, may it please your Honour.

GAUDRON J: Thank you, Mr Walker.

MR WALKER: Your Honours, at the outset may I, with Ms Crennan's support, record that there is an agreement between her client, Victoria Legal Aid, and my clients, the third and fourth respondents, that neither will seek any orders for costs of these proceedings against the other.

GUMMOW J: That is including costs of the order nisi?

MR WALKER: Yes, your Honour. Could I also at the outset draw your Honours' attention to what is actually before this Court. There is not before this Court some anticipatory salvation for the Western Australian Legal Aid Authorities. There is not before this Court whether the Commonwealth can by an order in inter partes litigation be made to fund generally family law litigants or, more importantly, the very peculiar and important institution suis generis under the Family Law Act of the costs of a separate representative, and that is a theme in particular to which we will return.

There is also, with respect, at present not before this Court two or three arguments, depending how one describes them, which are said to invoke the Constitution for or with respect to the interpretation of section 117 or perhaps its invalidity and we would wish to be heard - as people who are presently financially affected contingently by the argument before your Honours, we would wish to be heard if there is to be invoked any provision or subterranean tendency in the Constitution which is said to invalidate section 117 if it means what we will contend it means, and those last words are intended to indicate that, of course, we accept that the first task is to ascertain what the words mean according to statutory interpretation, which, in our submission, basically means what do the words mean as a matter of ordinary English, construed, as they must be, against the relevant traditions, not bound by the traditions, but construed against the traditions.

The two or three constitutional arguments on which we would seek to be heard, were they ever to be ventilated, and which, in our submission, are somewhat difficult to keep entirely separate from any interpretative exercise are, first, whether there is anything in Chapter III and what might be called the repugnant function notion, which somehow forces section 117 to be read down or directly invalidates it. We have put submissions on that, in writing, as have, I think, some others, in deference to the fact that the written submissions for Victoria Legal Aid did so as well. It has not been developed or even touched upon by Mrs Crennan and it is for that reason, and that reason alone, that we do not touch on it now, making it clear to your Honours that we would wish to be heard if that is considered to be an issue before the Bench today.

The second element would appear to be whether or not there is something about Victoria Legal Aid as an instrumentality of or in relation to a State, that is, a State of the Federation, which prevents Victorian Legal Aid from being affected as others, also non-parties, might be affected. Whether that is an implied intergovernmental immunity or whether it is a Melbourne Corporation point, is perhaps only a matter of semantics. We would also wish to be heard on that, but as we understand it, it is that issue in particular which your Honour, the presiding judge, very clearly corralled off as not being in the hearing this afternoon.

KIRBY J: Now, the governmental immunity, is that the same as the point that was raised by Mr Solicitor for Western Australia?

MR WALKER: I do not know, your Honour. Perhaps I should really add that as the third, whether it is constitutional or merely a matter of statutory interpretation in relation to the Crown, we are not sure. It is not the same. We understand it to be basically raised by the section 78B notice issued by the Attorney for South Australia. That was the point I was referring to as that which Justice Gaudron clearly reserved, if it ever became necessary to consider for a Bench of seven, and I should say, not for today.

May I go immediately to the point that Justice Kirby has referred to, the learned Solicitor for Western Australia's point. In our submission, section 5 of the relevant statute for these purposes, namely, the Legal Aid Act of Victoria makes it plain that the arguments put by the learned Solicitor for South Australia are correct, with great respect, and we adopt them.

We would also draw to your Honours' attention for this, and for some other purposes to which we will come, the provisions of section 3 of the Act which have simply not been attended to, with great respect, by those who have spoken of Victoria Legal Aid as either because of its supposed connection with the Crown, or because of its undoubted connection with the State, or because it is a legal aid authority as something beyond the reach of the plain words of section 117. In section 3(2) of its Act, it is made quite plain that being a body corporate, it:

may sue and be sued -

and it:

may do and suffer all acts and things that a body corporate may by law do and suffer.

To be the subject of an order for costs as a non-party to litigation is plainly, by authority, not under challenge before this Court today something which a body corporate may suffer. There is no dispute by any of the parties or interveners before your Honours today that that is something that is in the experience of bodies corporate. Indeed, a very important species of non-party to litigation which has not been mentioned so far in the argument before your Honours is one which must be borne in mind in considering the main argument we face on the question of interpretation, whether non-parties can be affected under section 117.

Insurers, your Honours, are practically always, if not always by law, bodies corporate, and the notion that an insurer is beyond the reach of the Family Court, though within the reach of other courts, other superior courts, when they intermeddle for example - and one could imagine that under legal expenses insurance, which may become far more widespread than it presently is, this will be a very important issue for courts - insurers are classically the kind of third party, whether they are maintaining in the old-fashioned sense, maintaining in a good public policy sense or simply maintaining in a colloquial sense litigation, they are classically non-parties who ought to be within the salutary power of a court to visit with costs the conduct of somebody, though not a constituted party before the court, who has affected forensically the expenses which are incurred by other parties or the time and trouble suffered by the parties. In our submission, once it be established that under this Act, Victoria Legal Aid is to be treated in words which are, we stress, unambiguous, clear, explicit and specific.

GUMMOW J: It is not quite as simple as that, Mr Walker. That establishes the body, section 3. Section 4 states its objectives, section 6 its functions and powers.

MR WALKER: I will be coming to duties, as well, your Honour, in section 7 but section 3 establishes the body - - -

KIRBY J: Does that do any more than establish that it is susceptible to being sued?

MR WALKER: No.

KIRBY J: Does it not?

MR WALKER: Subsection (2) does more than establish. It renders it vulnerable.

GUMMOW J: If you are saying the Victoria Legal Aid can open a casino because it is a corporation - - -

MR WALKER: No, your Honour. I do not have to do that. I am only arguing that it can be the subject of an order for costs as a non-party. Victoria probably can operate a casino if it gets the permission, your Honour, but no. The words of subsection (2), and particularly paragraph (e), coupled with the fact that it is a body corporate and may sue must, on any view, involve the doing and suffering of everything which comes in the train for a body corporate who sues or is sued and, we would add, is involved in litigation by reason of its functions, to which your Honour has already drawn attention in section 6, which includes the funding of legally aided matters.

KIRBY J: In accordance with the Act.

MR WALKER: Yes, and the Act is something that gives it in its very establishment, in its very being, vulnerability as a body corporate, vulnerability to those things which other body corporates, not it, body corporates not bound by any of the other provisions of the Act, what they may suffer.

The answer to your Honour Justice Gummow as to why the Victoria Legal Aid cannot decide to farm wheat in the Mallee or set up a casino by the Yarra is really quite straightforward, in our submission. There are other specific provisions of this Act which tells the VLA how it is to proceed. It can only be incidental to those matters that its power to act will be lawful.

GUMMOW J: One of them tells you how it is to disperse its moneys.

MR WALKER: Yes.

GUMMOW J: Section 41.

MR WALKER: Yes. Nothing, in our submission, in section 41 says that it is forbidden from when it is a litigant from being ordered to pay costs. That is not a Crown immunity point. That is a question of the implied capacity of the body and it is section 3 that gives it that capacity to behave as a body corporate must behave as a litigant and that includes being bound by orders of the Court.

Your Honour should not assume, in our submission, that the section 41 legal aid fund are the only funds available to the VLA. That does not necessarily follow. Your Honour sees that the payments in there are specified from different sources and for different purposes.

GUMMOW J: The payment into?

MR WALKER: Yes.

GUMMOW J: Yes, of course. They all have the nature of public moneys.

MR WALKER: All of those are public moneys, yes. Your Honours, that then brings us to the way in which this Court has had its powers invoked. The order which is sought to be quashed - that is all that is now sought - is the order with respect to the costs which have been and which were then anticipated to be required for the provision of the separate representative. The order that VLA, a body corporate with the powers and capacities noted in section 3, pay the costs of its foray and of the separate representative's foray into the Family Court from which these proceedings are brought is not the subject of any challenge by Victoria Legal Aid. Justice Faulks ordered VLA to pay the costs of the argument which is now in question before your Honours.

VLA does not contest that and, we submit with great respect, very properly so. The notion that VLA could have been, as it was, an applicant for orders for costs against my clients, as it was, there be an argument in which VLA's application under the tutelage of the judge is withdrawn as being misconceived but VLA's affidavit is prayed in aid by counsel who now appears for the separate representative, the notion that VLA, on the evidence directed the separate representative to make this application, should be immune from the costs when it failed in that application is, in our submission, bizarre as a limitation on a superior court however circumscribed by statute.

Your Honours, if it be correct that VLA cannot be made the subject of orders for costs, that must include the order for costs which it has suffered and not protested against in this case. That, in our submission, would be odd because it was the party who initiated the argument which results in the issues before your Honours now. It lodged an application. It may have been misconceived as the named applicant but it was certainly the one who lodged the application in its name. That is not as important as the fact that on the evidence it plainly directed the application to be made by the separate representative. We now know from the affidavit before the Court and from the agreement which is given force of law by both sections 7 and 49 of the Victorian Legal Aid Act 1958 that it is pursuant to a requirement of the Commonwealth imposed by that agreement that Victoria Legal Aid is bound to direct the separate representative to seek costs.

It is at that point, your Honours, that we must both concede, and also assert, that there are, on any view of it, formidable difficulties in the nature of the order which was actually made, which is in question with this Court, and formidable difficulties in fitting it within accepted traditions in relation to costs and litigation, and we accept all of that. Not all the difficulties tell against us, but many do. Of those that tell against us, we could immediately observe that, in relation to an order for costs, where one would expect that there would be - appear, from its face, the payee, and one could actually contemplate, in reality, the passing of funds from payer to payee, it is difficult to detect, in respect of all the sums in question in this case, how that is so.

Could I draw to your Honours' attention that the curiously precise figure of $9,033.60 is made up in ways which include different components. They do include costs which, on any view, fit within a traditional view of matters for which somebody may become liable, which somebody may incur: counsel's fees, expert's expenses - expert's fees.

KIRBY J: It seems an odd sum. Is a breakdown indicated anywhere, or not?

MR WALKER: Yes, there is, your Honour. At page - - -

HAYNE J: Pages 56 and 57, I think.

MR WALKER: Your Honours will find the affidavit which contains important material starts at page 2 of the book and - I am sorry, it is not that affidavit. If your Honours would just forgive me.

HAYNE J: Pages 56 and 57, is it, Mr Walker?

MR WALKER: I am obliged to your Honour. It starts at the foot of page 56. It simply says - and, of course, one of the difficulties is that none of this is factually explored beyond the affidavit:

The costs that will be incurred by the Child Representative -

I will return to that expression later -

are presently estimated to be -

a particular sum. You have got "Preparation for trial," which would appear to be, from what one gathers, that that appears to be costs in relation to the child representative herself. Then there is, "Counsel's fee," and then there is, "Conference" and "Instructing." Then one sees the important message, on page 57, that unless that amount is paid the:

assistance from Victoria Legal Aid will terminate in relation to the Child Representative's involvement in these proceedings.

That is a bland way of saying she will not turn up, we would submit, because this was not a private practitioner, this was an employee; an officer of the Victoria Legal Aid. The significance of that, of course, lies in the date of this affidavit and the fact that the hearing for this case had been fixed for 15 September for some months. The significance of that is that, by this forensic excursion by the VLA itself - this was its application - what was being threatened was a very serious effect on the course of proceedings and, we would submit, the threatened unfairness of proceedings in the interests of the child and, thus, of course, an adjournment, greatly to the detriment of the parties, including my clients.

So that this was a case of a non-party - VLA - initially in its own name, and always as the director, or the dominus litis, so far as the child representative was concerned, for costs, taking a position which there and then threatened in the proceedings an adjournment, costs thrown away, and all the anguish that comes when people who have been waiting for years to have a hearing are told at the last moment, for reasons not attributable to them, that it will not happen at the appointed time. That is a classic reason why costs are ordered in litigation and it is a classic reason, in our submission, why costs might be ordered against a meddling third party.

HAYNE J: What do you mean, "costs might be ordered". Might be ordered to be paid by legal aid to a party to the suit other than the party whom legal aid are representing. Are you not eliding two concepts?

MR WALKER: If I do not unravel them, yes, your Honour. What your Honour has raised is another of the formidable difficulties. I will come to it soon, I hope. I entirely accept what your Honour says. What I have just called in aid is a practice for which there is no ready analogy for the costs of the child representative in this case, and I accept that.

May I say overall, that it is the position of the child or separate representative under the statute in relation to this kind of litigation which we submit both requires that the tradition not be followed when interpreting the words of section 117 so as to limit its efficacy, and also requires that, as your Honour has pointed out, that the differences which may be observed between an ordinary approach to costs with third parties who have intermeddled, are differences which are understood before it is accepted, there is a power against the VLA in this case. We accept that those are obstacles we have to cross.

KIRBY J: Just let me go back to the order that his Honour made at 60, which is the subject of the proceedings. Are you saying, in effect, that it should be read as, "pursuant to the provisions of section 117 Victoria Legal Aid provide either the sum of 9,000" et cetera , "to" - "for the future costs of the child's representative in these proceedings."? I am wondering whether it should be "to the child's representative" rather than "for".

MR WALKER: No, your Honour. The preposition is difficult, but it is also certainly not "to" for reasons to which I am about to come. I can come to them now.

KIRBY J: But the problem is, in its present form, it seems to be an order to Victoria Legal Aid that it do something with its internal finances.

MR WALKER: Yes, your Honour, and I volunteer that that is a difficulty. Whether it is ultimately a difficulty telling against me, or whether it is simply one of those difficulties which mark the whole of the separate representative idea, and section 117 as it ought to affect that idea, or be affected by that idea in a way which tells for my ultimate success is another matter. But, it is certainly strange for these reasons.

KIRBY J: Could it be corrected by "for the future costs to the child's representative in these proceedings"?

MR WALKER: Your Honour, then it raises this question: let it be assumed, though it is not easy for me to elide the concepts, that there is identified the payer, the party bound by the order, namely VLA. Your Honour has raised the question of the payee, but the child's representative is an employee of VLA making this application at the direction of the VLA, and we know the VLA is bound to have her do that by law through the provisions of the VLA Act, section 49 and section 7, and the provisions to which your Honours' attentions have been drawn in the agreement between Victoria and the Commonwealth. That is how it comes about.

What is the child representative going to do with the money? She cannot bank it. It is not hers. She has not laid money for her own wages. That is absurd. She has not even laid out money, one can wager, for counsel's fees or the psychologist. That, presumably, will have been met from the fund which we are told by VLA has already expended more than $15,000.

So that, on any view, there are oddities which would appear, as soon as one embraces only traditional orthodoxy in relation to the jurisprudence of costs, must defeat our argument. We must fail, if this is to be viewed in an orthodox way deriving from party/party litigation and from what might be called autonomous intermeddlers, that is, somebody outside the litigation who has a choice about what is to be done. But, we submit, those difficulties ought not to swamp the reality that Parliament has provided for an institution, namely, child representative or separate representative, now referred to in sections 68L and 68M of the Act, which it must be supposed Parliament intended to work, not simply to be a tantalising possibility in a perfect world of adequate legal aid.

In our submission, for the reasons we are about to develop, there are, in fact, ample textual support to be found in both subsections 117(2) and in 68L(2) of the Act to permit, not withstanding the traditions, this Court to hold that the order or an order, perhaps better drawn than the present one, but to the same substantial effect, to have been made. The fact that it is unusual and strikes one as unusual because it is made so that the payee is not obvious, so that the costs have not yet been incurred, so that they are to be borne by a non-party, really falls then within the area of warning signs to the Court that the discretion has to be exercised with caution. So that, if the discretion is to be upheld in this Court, it would, no doubt, attract epithets like "rare" and "exceptional", if the discretion were regarded in a court before whom the exercise of discretion was being canvassed, it would be described as outlandish or beyond something that which was reasonable.

KIRBY J: I think the Court is entitled to know whether in its terms, you defend the order as it stands.

MR WALKER: No, we do not defend the second clause of it which commences "or shall facilitate", and we submit that when one - - -

GUMMOW J: Before you continue in this generous spirit, can I ask you this ,Mr Walker: what would one do if one decided that the order, imperfectly drawn though it is, was to be supported under section 68L, not section 117?

MR WALKER: I was just about to say when your Honour accused me of generosity, that that generosity extended only to 117. Because I do have an argument, as your Honours have seen, perhaps tentatively introduced by the word "query" in our written submissions, I do have an argument that 68L(2) does authorise orders - I will not say, in the terms of - but certainly to the effect of that second clause of order 3. I do not say, in the terms of, because "shall facilitate" would, one hopes, perhaps, be enough with generous spirited officers of VLA, but in an ideal world the order would be more precise.

GUMMOW J: Quite. But it seems to have nailed its flag to the mast of section 117 alone.

MR WALKER: In which I would call in aid Elias v Gordon and submit that where a body such as a court has mistaken its power but done something which is within power, unless there are reasons relating to natural justice, then a court reviewing the exercise of power may proceed on the basis of the available power. So, just to recapitulate, under 117 the second clause starting "or shall facilitate", we do not defend and urge that it may be quashed, in part, in accordance with principle.

GAUDRON J: Would you not need a party under 68L? For example, does your argument go so far as to say that a Family Court judge sitting there could think to himself or herself, "Oh, well, Mr Packer is a very rich man, I will make an order that Mr Packer put aside $20,000 for the provision of a separate representative".

MR WALKER: No.

GAUDRON J: No. Well, what is the difference between Mr Packer and legal aid under 68L - - -

MR WALKER: Mr Packer is a lot richer, your Honour. He has a lot more money and he can spend it as he likes, neither of which is true of legal aid. Your Honours, the reason why we answer "No" derives from the fact that, in the exercise of judicial power, by a court with statutory authority to order costs, and probably as well, in the exercise of the legislative power of a Parliament limited as it is, as the Commonwealth Parliament is limited to its powers, under any available head of power that one can imagine it would not fall to be characterised as either judicial power, which is ultimately determined by the resolution judicially of matters, nor would it fall within Commonwealth Parliament's power, presumably under 51(xx), 71, 77(i) and 51(xxxix), for a law to be enacted, or for a discretion to be exercised, a supposed discretion to be exercised, so as to enlist the financial resources of somebody who is so remote, so much a stranger, as not to be any part of the matter or its adjudication.

Let me expand on that. Quite apart from acquisition of property difficulties with it which have to be considered, quite apart from the fact that it would not resemble a law with respect to taxation, there would also, in our submission, be a problem in saying that somebody who has not in any way brought himself or herself within the orbit of the adjudication of a dispute either by being a party, which is practically always the way involved, or by being a third party of a kind discussed in Knight and in all the other authorities about non-parties falling within the judicial power of ordering costs, it is difficult to see how imposing a duty of subsidy on such a person could be acting judicially, would have anything to do with the adjudication of a matter or would be pursuant to a law that fell within any Commonwealth head of power. In short, if you want Mr Packer to contribute to legal aid, then what one does is enact general taxation and then an appropriate appropriation from money which will not, we hope, ever simply be Mr Packer's money.

HAYNE J: Similarly, if you want, say, the grandparent of the child concerned to pay the costs, what step do you say can or should be taken before exercising 68L jurisdiction? In particular, would it not be necessary to join that grandparent to the suit as a party?

MR WALKER: No, it is not necessary to join a grandparent given certain circumstances. It is necessary on any view that that grandparent be heard in relation to that application. That is a natural justice point which is, I think, conceded on all hands before your Honours.

HAYNE J: But you say that there is power under 68L to order somebody not a party to the suit.

MR WALKER: Under 68L(2), your Honour?

HAYNE J: Yes.

MR WALKER: Yes, but I say immediately that it is difficult to see how that could be a discretion exercised judicially if it proceeded, for example, simply by observing that there was a blood tie between the child in question and somebody wealthy enough to subsidise representation.

HAYNE J: Does this not then lead you to the point that section 68L(2) can be made to work for separate representation of a child because the order that might reasonably be considered necessary to secure separate representation is an order directed, and directed only to, one or other of the husband and wife parties to the suit?

MR WALKER: No, your Honour, for this reason: first - and this may appear at first to be an acceptance of your Honour's proposition but it is not - a grandparent such as my clients in this case who had sought intervention, had been granted it and had become thus equivalent to parties - - -

HAYNE J: As an applicant for custody, yes. The point must be extended to that.

MR WALKER: - - - are obviously within that ambit, and I understand that your Honour is not meaning to exclude them when your Honour says "mother or father". Second, that would apply to any intervener, in our submission. Third, there is no reason why under 68L(2) somebody who has not sought intervention and who has not been joined but who has been well and truly heard on a 68L(2) application, who is in the position, for example, of standing behind, funding, egging on, exacerbating the dispute between mother and father, both of them impecunious, why that person, be it a new spouse or a grandparent or a sibling, ought not to be within the purview of a court under 68L(2). What your Honour puts, with respect, is something which ought to be seen as going only to the acceptable limit of a judicial discretion.

We adopt, with great respect, the way in which it was put by Justice Gaudron in Knight, that the wide words should not be read down for fear of abuse or inappropriate use. Because they are to be exercised by a judge, they may be given the more confidently their literal width. True it is that it is unthinkable that just because I am somebody's grandparent I will end up funding the separate representation, which may well end up putting submissions which are antithetical to my desires for the child, are antithetical to the desires of either of the parents of the child, it is unthinkable that such a person could simply be latched upon because they have the funds. That, with respect, may not be a jurisdictional question. It would be a jurisdictional question if it was simply Mr Packer for a stranger's family. Then, for the reasons I put earlier - - -

GAUDRON J: What about the rich godmother?

MR WALKER: Exactly the same considerations follow. Either the spiritual - - -

GAUDRON J: Not intermeddling though in the proceedings.

MR WALKER: In which case, your Honour, we would put that is probably jurisdictional in the sense that this would be to involve somebody who had not within an acceptable sense brought themselves within the orbit forensically of the matter. The matter is first constituted by the mother and father quarrelling about the custody. It can be expanded to intervening parties who have been joined, and outside them there is a penumbra of non-parties who traditionally, we stress, have been subject to costs jurisdiction of superior courts and I have called them, perhaps unfairly, intermeddlers. I do not mean that derogatorily of their morals or motives. I mean people who have had an effect on the forensic outcome or climate or conduct in such a way as to render it just to order costs.

We stress that insurers are an obvious example here, and so are people who are maintainers in the technical sense who are funding, for example, what is, in effect, a deep pockets' defence by somebody impecunious. As your Honour Justice Callinan pointed out, such a maintainer may, in fact, turn out to be a legal aid authority and it has occurred that a legal aid authority has been ordered to pay costs on that basis as a third party, persisting with an unreasonable argument obviously to the enormous expense of the party who has to meet it. That, in our submission, is a classical, proper and salutary non-party jurisdiction for the ordering of costs.

GUMMOW J: Now, we have parenting orders now, do we not, under this legislation?

MR WALKER: Yes, your Honour.

GUMMOW J: And were the grandparents persons who applied under section 65C? I think the old notion of custody applications has gone.

MR WALKER: Yes, I am told, your Honour.

GUMMOW J:

A parenting order in relation to a child may be applied for by:

(c) any other person concerned with the care, welfare or development of the child.

MR WALKER: And such a person, obviously, comes within the orbit of people who may be affected, not only under section 117, but also under section 68L.

HAYNE J: If they have applied.

MR WALKER: And we stress, if they have applied.

HAYNE J: Yes.

MR WALKER: They may even be ordered to pay costs if there is a contested, thus expensive, application and they lose.

HAYNE J: Yes, if they have applied, or in the sense in which you have been using it, intermeddled.

MR WALKER: Yes, your Honour.

HAYNE J: And beyond that?

MR WALKER: No, that is why we gave the simple, unqualified "No" earlier. We do not want any qualifications on it. There is a line. Like all lines, there will be cases where it may be difficult to detect where it lies, but that does not mean it does not exist, and it does not mean that the distinction is an unreal one. There will be points at which, obviously, it is more an argument about the exercise of a discretion than the existence of a jurisdiction, but there are both those questions which will arise in particular cases. Why we - - -

KIRBY J: You were telling the Court earlier that you do not support the first part of order 3 on section 117(2).

MR WALKER: Yes, your Honour.

KIRBY J: But I was taking it that you do support the first part but not the second part, but that you do support the second part under section 68L. Is that correct?

MR WALKER: Yes, your Honour.

KIRBY J: And do you support the first part additionally under 68L?

MR WALKER: Yes, your Honour.

KIRBY J: So that the structure of your argument is that 117(2) supports only the first part, 68L supports both?

MR WALKER: Yes, your Honour.

KIRBY J: I follow.

MR WALKER: Your Honours, could I complete what I want to say about 68L because it has been raised, and I have very little more to say about it. By picking up what was said by Mrs Crennan about Heard v De Laine (1996) FLC 92-675, the particular passage is the conclusion of an argument which perhaps is picked up at 83,037 and, in particular, on the right-hand column of 83,038. In the days which were in question before that court, section 65, not section 68L, was the relevant provision.

The grammar of the relevant provisions is slightly altered to say "for securing" rather than "to secure", but it is materially the same. The relevant passage then at the foot of that right-hand column records the argument which is the same as the argument I put, and in the left-hand column, 83,039 in the first full paragraph, its rejection by the Full Court is recorded. We submit that the reasoning in that paragraph is unconvincing.

We do not consider -

their Honours said -

that.....can properly be interpreted in the manner -

that is the manner that I urge. It -

enables the Court to make an order that a child be separately represented and such other ancillary orders as may be necessary to facilitate such representation.

Those words are paraphrased because the actual words, as your Honours will appreciate, talk about what the court considers necessary for securing or to secure such representations. They then go on and say:

The section does not enable the Court to review administrative decisions of a legal aid body -

and I do not argue in this case or generally in support of this case that there is any judicial review of administrative action involved in 68L. We accept that.

What we are simply saying is that there are orders which may be made to secure and they have to be those which appear necessary. It will never appear necessary to a judge because he or she is a judge to order a State body or a Commonwealth body to do that which would be unlawful and so 68L has its own protection in relation to the lawfulness in administrative law terms of what is proposed. It could never, as a matter of law, appear necessary to a judge that a body behave unlawfully and, if it be demonstrated in any particular case, including this one - - -

GUMMOW J: That becomes circular because, on its proper construction, the section may require this of State bodies.

MR WALKER: It is not circular, your Honour. All it says is you may only do that which - - -

GUMMOW J: If that is the true operation of the Act then there is a question of inonsistency.

MR WALKER: No, your Honour, because I am not embracing, for example, that it could appear necessary to a judge to direct all barristers in Phillip Street to contribute to a fund for the representation of children, however desirable that may be. That may appear necessary to a judge but that would be an unlawful order because it could not, in law, appear necessary.

It is not circular for us to say that, with respect to bodies such as legal aid or with respect to a grandparent involved in such a case, it has to be lawful conduct. If the grandparent is, for example, under legal constraint in relation to expenditure of money - the Mareva injunctions or the like - it would be unthinkable that it could ever appear to a Family Court judge under 68L(2) necessary to order something which would put that person into contempt of another court's order.

So, for that reason, it is not so much circular as self-protective. The terms themselves prevent this clash with administrative law and, thus, the notion that there is no review of administrative decision making is unconvincing as a reason why the words of 68L should not be given their full force and effect. That is not the task in mind. Their Honours then simply go on and say:

Thus -

a word which, in our submission, does not follow anything better than it does logically -

following the making of an order that a child be separately represented, the Court is able, for example, to order the parties to provide relevant documentation.....and to make the child available -

Those are examples, of course, of ancillary orders. They are also now found expressly, some of them, in section 68M, which only highlights, in our submission, why one would not construe 68L as being limited beyond its ordinary words to such essentially ministerial Acts. In our submission, if there were ever provisions for the doing of justice in a Family Court in relation to children who are not old enough to be parties and to be autonomous, then provisions which facilitate this peculiar institution of separate or child representative are provisions which attract that liberality of reading.

KIRBY J: What is your answer to the authority that Mr Katz put before us? I think it was Ascot Holdings- - -

MR WALKER: Ascot v Harper.

KIRBY J: - - - where Justice Gibbs said that you would think that, if the legislature intended that an order should be made against a non-party, it would have made that clear.

MR WALKER: Your Honour, I may be about to express a distinction poorly, but the order that was held beyond power in that case might be called substantive. It told a company who it was to treat as its shareholder. It had a final effect outside the litigation - that is, in the continuing world - in relation to company law, and it was part of a family law section 79 approach, section 114 in aid of, obviously. In our submission, that is to be distinguished from a court's approach in relation to costs. It is unimaginable that in Ascot v Harper, a case which never looked at the question of costs, for example, the High Court was saying that, unlike other superior courts with general statutory powers as to costs, the Family Court is never going to be able to punish maintainers of actions, people guilty of barratry or insurance companies unreasonably driving the conduct of litigation.

It is unthinkable, in our submission, that those salutary powers were in the contemplation of Justice Gibbs. They plainly were not. The decision has to be read ab subjective materiam. It has to do with what I have called that substantive effect. In this case, we are simply talking about an order for costs or an order for the securing of separate representation, section 68L(2). None of those were before the Court in Ascot v Harper.

In our submission, Ascot v Harper, perhaps, if one was to apply it in a child case, one could say, for example, that it would prevent a boarding school being told that it must continue to tutor and house a child of a marriage for no fee, a judicial scholarship, as it were. That would be beyond the power of the Family Court. There would be a lasting, substantive, permanent effect as a determination of a child maintenance matter between parties affecting a non-party to the litigation and somebody who is not within the purview of the matrimonial causes power, in our submission. That would be an analogy for a child case, but not a costs order for somebody who has had, as VLA had in this case, a devastating effect on the eve, as Justice Faulks put it, of the hearing.

KIRBY J: I did not hear that. A devastating effect on what?

MR WALKER: Effect on the eve of the hearing, as Justice Faulks put it. In short, Ascot v Harper is light years away from the present case, both in statutory terms and factual terms.

I should draw to your Honours' attention that the Chief Justice In the Marriage of S (1997) FLC 92-762 expressed himself in relation to Heard. There was ratio, he held, of Heard which survived his analysis of other aspects of the decision in Heard. It is in the left-hand column of 84-387 where his Honour said:

pending any future reconsideration by the Full Court -

and, of course, this Court naturally -

the ratio of the decision in Heard's case should be confined to a finding that s 68L(2) does not provide a source of power to require a legal aid authority to fund a child representative.

68L(2), of course, being the now equivalent of 65.

KIRBY J: This is In the Marriage of S?

MR WALKER: Yes, your Honour.

KIRBY J: The copy that I have got is 22 Fam LR 112.

MR WALKER: The reference then is 129 in the Butterworths series, your Honour.

KIRBY J: Right, thank you.

MR WALKER: At the bottom of the page. The reasoning which preceded that conclusion is, without going into any detail, reasoning which does not show any enthusiasm by his Honour for even that part of the ratio of Heard, but, in our submission, both are wrong for the reasons I have put.

Your Honours, I stress that these are arguments which, as we understand the way in which there has been quarantining of the constitutional matters, are not capable of being affected by considerations which flow from VLA being plainly an instrumentality of the State, notwithstanding it does not represent the Crown. There is no Melbourne Corporation flavour which can be called in aid against my argument at this point. It, therefore, is a matter of what do the words mean on their face and we have extracted in our written submissions those parts of sections 68L(2) and 117(2) which are plainly literally wide enough.

The fact that they are literally wide enough can be illustrated, in fact, by Ascot v Harper where the High Court held that other words of other provisions were literally wide enough to encompass something which could not be brought within the constitutional and intrinsic limitations of the Family Court. In this case there are no such limitations, first, constitutional, because they are not being argued today and, second, there is nothing intrinsic about the need to exclude the effect which is worked by these orders.

To the contrary, as we have put it in that part of our written submissions which talks about Chapter III, as we have put it, these are intrinsic to the judicial function in order that people, parties before the court, are not deprived of necessary protection in relation to costs. I turn, finally, your Honours, to the question - - -

KIRBY J: Can I just ask you on that, is it your understanding that if you are knocked out on the statutory argument or on the power of the corporation under its statute argument, that that is an end to the case so far as you are concerned?

MR WALKER: Yes.

KIRBY J: And, you do not use the Constitution, the federal Constitution anyway, as an entitling provision, it is simply another basis on which the respondents may knock you out?

MR WALKER: Yes. I understand that if I - - -

KIRBY J: The prosecutor may not - - -

MR WALKER: I understand that if I persuade your Honours that we may lose after some future hearing because the interpretation in which I succeeded is held as requiring reading down by dint of constitutional pressures or, alternatively, the statute so understood is simply invalid pro tanto. Whether it is a good idea to interpret a statute when it is obviously to be construed against the Constitution without referring to the Constitution is another question but that is, as we understand, the way the issues have been set today. I should make it plain - - -

GAUDRON J: Mr Walker, while you are diverted, as it were, from your submissions, I can see how you can make an argument that an order for costs might be made against somebody who has involved himself or herself in the proceedings in accordance with the principles as they have developed in relation to the general power of a court to make an order as to costs. I really do not see what it is that enables you to inject similar sort of considerations into 68L(2). Prima facie one would think that this is a power being exercised judicially, and where there is at least an order against you of a substantive kind, that it would, according to ordinary principles, and in the context, be read only as operating in relation to somebody who has been made a party or intervener for that purpose.

MR WALKER: I accept, with great respect, the distinction - that is, 117 is costs - and again I would be guilty of inappropriate elision if I said that 68L(2) should be seen the same way and benefit from the same penumbra of potentially affected persons, but 68L(2) and 117, though they are different, plainly relate to the burden of providing legal representation, whether for oneself, section 117 in the usual case, or - - -

GAUDRON J: I do not think you could say that of section 117 as such. Prima facie at least, it would be for the purpose of providing indemnity or securing indemnity, not for providing for the burden of legal representation as such.

MR WALKER: May I shelve for one moment, your Honour, the argument that I want to put about the anticipatory or prospective nature of the order and, with great respect, accept what your Honour has said that prima facie, or certainly in the vast majority of cases, it is an indemnity in the sense expounded in Cashia v Hanes. I accept that, although we will return to it. In relation to section 68L(2), like section 117 it has to do with, as I say, the burden, whether it be future or present or past.

GAUDRON J: It must be future. It cannot be anything else.

MR WALKER: Yes and no. It would be unbeneficial if a reading of section 68L(2) prevented a court from revisiting, altering or adding to orders to secure such representation once the order that there be representation was made. So there may well be retrospective effect as well. That is not before this Court on the facts of this case, although it could easily have been on the facts of this case if the 9,000-odd turn out all to be prospective, but, with great respect, 68L(2) does not say "The judge must have such a good crystal ball that everything then thought necessary to secure representation will be all that will ever be necessary". In our respectful submission, it continues to empower a court to revisit that which is thought necessary to secure such representation.

My answer to your Honour Justice Gaudron and to your Honour Justice Hayne in relation to the distinction between costs in the orthodox way in 117 and that which is necessary to secure separate representation under 68L(2) is that on any view of the matter, bearing in mind the expectation which we understand to be a matter of unalterable practice that the separate representative be a lawyer skilled in the area, as indicated by the very word "representative" in the title, there is likely to be - we would submit certain to be - the provision of legal services of a kind which require, ought to require, remuneration involved. That brings it necessarily overlapping with the concern of section 117 which, whether limited to indemnity or not, has to do with the fact that parties are expected to - indeed, encouraged to - incur the expense of skilled legal representation in order that the proceedings best proceed under our system of adversarial justice.

Adversarial justice is not, with respect, the hallmark of the separate representative under 68L and that is why there is an overlapping and a necessity, perhaps, for 68L because 117 may not cover all the possibilities. Provision in kind, such as is contemplated by the second clause, the alternative of Justice Faulks' order under attack, is obviously an acceptance of the proposition that one can provide legal assistance in kind rather than just by a cheque for the payment of a lawyer.

In our submission, there is an overlap which is entirely understandable and satisfactory as a matter of interpretation because, on both sides, money will be needed for the payment of a lawyer. It could be argued, we submit wrongly, that 68L(2) is the sole repository, if there is any repository, of an order to make anticipatory or prospective orders for the financial consequences of the appointment of a separate representative. I will come back to that in relation to our section 117 argument.

Section 68L(2) certainly does look forward, however much it might, for the reasons I have put earlier, need also occasionally to look backwards. It must, in the usual case, look forward and here we come to another of the difficulties which, at first sight, tells against me but, in my submission, adds to the mountain of material which suggests that these separate representative cases are cases where orthodoxy and tradition will be an unhelpful limit on the interpretation of the words of a statute however helpful they are as a point of departure.

GAUDRON J: I do not know that one can abandon orthodoxy in terms of looking at the context of a statute.

MR WALKER: I would never ask your Honour to abandon orthodoxy.

GAUDRON J: If you look at 68M, that does seem to contemplate orders against non-parties of the type that might roughly be acquainted with subpoenas, say.

MR WALKER: It goes beyond parties, of course, your Honour.

GAUDRON J: Yes. You do not see anything of that kind in section 68L.

MR WALKER: No, that is because 68L has very general words designed to cover a very general run of cases and literally includes many things beyond that which is contemplated in 68M(2). General words should not be cut down from their literal meaning.

GAUDRON J: But, on the other hand, you concede that the general words of 68L do not enable an order against Mr Packer?

MR WALKER: Yes.

GAUDRON J: So they must be read down to some extent?

MR WALKER: Yes, if reading down is what one does in deference to the - - -

GAUDRON J: Yes, and what is one reading them down by reference to, in that circumstance?

MR WALKER: I hope this is not circular: by reference to the implication that a judge can lawfully consider necessary only those things which are lawful or permitted or not prohibited and second - - -

GUMMOW J: A Wardley-type argument, really.

MR WALKER: Yes, and that Parliament, in any event, could not have enacted in 68L(2) something which either authorises the acquisition of property on other than just terms or involves in a matter and in the penumbra of procedural and other orders that may be made for the adjudication of a matter, people who have, on any view, nothing to do with the matter.

GAUDRON J: Why would you not read them down by reference to the consideration specified in Ascot v Harper?

MR WALKER: We are content to use that as one of the means by which one reads it down, your Honour, but that does not - - -

GAUDRON J: It seems to be an orthodox rule of construction when you are looking at the powers of the court.

MR WALKER: Yes, your Honour. But, if one applied that, if I may use the expression "literally", and one were to depart from the subject material of that decision, it would mean you could not order a non-party to pay costs. It is unthinkable that that court, seized of the issues it was seized with, was intending to rule against a power very familiar to their Honours in other superior courts - - -

GAUDRON J: It might be because the subject matter indicates otherwise in limited circumstances.

MR WALKER: Your Honour is putting to me that the canon of interpretation by which these words need to be read down has to do with an expectation that Parliament does not intend to interfere with utterly uninvolved persons, substantive rights and obligations.

GAUDRON J: Persons who are not parties to the proceedings or are not in the same position as parties to the proceedings.

MR WALKER: Then, your Honour, that is, with great respect, a misleading generalisation, for this reason. Jurors, unwilling witnesses, people in possession of paper which may contain evidence relevant to a case, are all third parties, utterly uninvolved in litigation who are routinely, traditionally and on orthodox grounds, and for sound public policy, affected, sometimes without reimbursement in their pocket, or without adequate reimbursement in their pocket, for the purposes of the administration of the judicial power. So that it is not true, with respect, that as a generalisation, anything said in Ascot v Harper stands for the proposition that third parties not involved in the intermeddling sense I have talked about, or in a party sense, cannot be affected in their pockets by the operations of a court under statutory powers. That does not follow.

What it does stand for is the proposition that - and I apologised earlier for the vagueness of the word "substantive" - in a substantive way, that is, substantive is in relation to the final relief granted by the court, there could be the involvement of a third party strange to the litigation. But they can be involved in other ways: to produce documents, to come and give evidence, to be a juror in a common- law case, to be, in our submission, ordered to pay costs if they have been a maintainer. Those are all ways in which it must feel substantive, in the sense that it costs them money, but it is not substantive in the sense that that is not the ultimate end of the court in the kind of controversy the court is adjudicating, the property adjustment between spouses, child custody or any other issue before any other kind of court.

That is the distinction I was trying to articulate in relation to Ascot v Harper, on the one hand, and the undoubted, traditional, orthodox understanding of power such as the costs order, to include non-parties. Nothing the bench in Ascot v Harper uttered could be understood as saying that the tradition in relation to third parties being ordered to pay costs was somehow anomalous or outside the orthodoxy which it was propounding. And nothing in my argument involves substantive relief affecting the rights and obligations of an uninvolved third party in this case.

Section 68L(2) is classically procedural, or ancillary or facultative, to the achievement of the ultimate justice, which is the determination in the child's best interest of what ought to be done in relation to custody, et cetera. And 68L(2) certainly does not authorise, in its terms, because it is addressed to a judge and it talks about a judge considering things necessary, certainly does not authorise the judge to do anything - to require somebody to do anything unlawful. Nor does it authorise the judge to involve strangers because they happen to be the source of funds or, were it to be addressed to lawyers, the source of expertise.

So there is no civil conscription authorised by 68L(2) of lawyers who have nothing to do with the case. There is no acquisition of property, of people's money, because they happen just to have the money, but there is, in our submission, the possibility for - subject to lawfulness, there is the possibility for orders to be made for the securing of representation from somebody who has, as in this case, bound themselves by agreement, and being bound by their own State statute to consider certain matters.

KIRBY J: If one looks at the terms of the order, it purports to be exclusively under section 117 but it makes no reference to the 68L(2). If one is applying orthodox principles of construction, leave aside what the judge said because he might have made a mistake, we have a general power under section 68L which is court orders for separate representation, and a particular power under 117 which is related to costs. Why would one read 68L(2) as extending to costs when there is a special provision in the Act which deals with that subject?

MR WALKER: Because, your Honour, events can very readily imaginably occur in the Family Court where costs ought to be borne by either a party or a non-party, in light of certain events, notwithstanding there have already been orders made securing the separate representation. Thus, for example, if the separate representative is kept in court weeks longer than was necessary by the forensic conduct of a party or by the determined behind the scenes deep-pocket urgings of a non-party, why should not the power in 117 be available with respect to the costs of that separate representative. Why should the entity - - -

KIRBY J: The answer comes back because the ordering of costs is potentially so significant, at least where it is ordered against a body that must raise it from the consolidated revenue in some way, that one would expect it to be expressly stated, if that was intended. And that you can work the Act by getting 68L to deal with the making of orders for separate representation, and then you confine orders for costs to 117, just as the judge appears to have thought. Section 68L is a lawyer's construct. It has come since the order was made.

MR WALKER: No, 68L is a parliamentary provision.

KIRBY J: I realise that, but I mean the judge did not think he was acting under 68L - - -

MR WALKER: No; it is my lawyer's construct, yes, and none the worse, with respect, if it was available as a head of power and the order was authorised under it.

KIRBY J: It is asking an awful lot to be done in those words:

and may also make such other orders as it considers necessary -

to expand that to making an order, (a) for costs, (b) for future costs, (c) against a non-party, and (d) against a statutory corporation of a State that has no power to appropriate its funds for that purpose.

MR WALKER: Yes.

KIRBY J: You are asking an awful lot to be done under that very general expression, and you do not have to construe the Act in that way. You can say, it is merely to be making orders against the grandmother, or the godmother, and leave it at that, and if you are going to get costs, you have to fit yourself within 117. Not that I do not think 117 does a lot of work, speaking for myself.

MR WALKER: May I again flag, your Honour, you use the trigger word "State" in that last list of things which are a big ask, and I accept that they are a big ask, but that is to raise, or at least to hint at constitutional issues which I have not addressed, although we want to address them if they - - -

KIRBY J: Take away the word "State". I subtract the word "State". I do not want to offend in any way against this agreement that we will not mention the Constitution. It is like not mentioning the war. We cannot mention the Constitition.

MR WALKER: It is not an agreement, your Honour. It is simply my understanding of the issues upon which I am being heard at the moment.

GUMMOW J: Can we concentrate on that point (d) which was the incapacity of the statutory authority to make available the money. You say it is within the capacity - - -

MR WALKER: It has not been identified to your Honours - I will start again. Your Honour Justice Hayne very early asked why we have been given this agreement. With great respect, it was not immediately made obvious why we were being given the agreement. Of course, there are statutory provisions which mean that the agreement provides content to a statutory obligation.

So, your Honours did have your attention drawn to the statute, the Legal Aid Act, and to an agreement which falls within the description referred to in section 49(2) of a document which includes obligations, binding in public law, however else they may be binding, on the Victoria Legal Aid. You have not been shown any provision in that agreement or, we submit, in the Act which is a prohibition on Victoria Legal Aid complying with an order under 68L(2) or 117(2).

KIRBY J: But the question is not prohibition, but power to do it, to appropriate the money raised from the people of Victoria for something which the corporation is not specifically empowered to spend it on.

MR WALKER: It is not from the people of Victoria, it is from the people of the Commonwealth, your Honour.

KIRBY J: Well, Victoria Legal Aid is - - -

MR WALKER: No, it is from the Commonwealth. That is explicit on the face of this material. It is from the Commonwealth for Commonwealth matters.

KIRBY J: I do not mind where it comes. Citizens of the Commonwealth are still - - -

MR WALKER: Your Honour, if we were to get into constitutional matters, that casts a rather interesting light, however, on this notion that this is a peculiarly State matter which is not to be seen as something which Commonwealth legislation or a Commonwealth court can touch. These are Commonwealth funds for what are called Commonwealth matters.

GUMMOW J: All right, but now I think your opponent says, looking at 41(3)(a):

Out of the Fund shall be paid:

(a) amounts payable in or in connexion with the provision of legal aid -

and although that is widely drawn in section 2, she says that means legal aid under the Act.

MR WALKER: And we say that that includes that which would be required to be done under an order, authorised by section 68L(2).

GUMMOW J: Why?

MR WALKER: Because it falls within the ordinary meaning of the words used to define it.

GUMMOW J: It falls within - - -?

MR WALKER: The ordinary meaning - - -

GUMMOW J: Of "legal aid" definition?

MR WALKER: Yes, any legal services that may be provided by a legal practitioner. Ms Glaister is a legal practitioner. We wanted her to provide services.

GUMMOW J: All right, but suppose you are wrong about that?

MR WALKER: Then I would fail on the point.

GUMMOW J: Well, that is what I am wondering. We must have that line drawn, that is all.

CALLINAN J: Mr Walker, what about if the compliance with the order resulted in the distribution or the use of the funds on an inequitable basis contrary to the objective contained in 4(b) of the Legal Aid Act?

MR WALKER: Yes.

CALLINAN J: Would that not constitute also an infringement, or could it not constitute an infringement of the Act?

MR WALKER: Yes, your Honour, and I should also volunteer against myself, if it was to do so in a manner which did not dispel fear and distrust which is also an obligation, and if it was not efficient or effective. None of those issues are before this Court. If a proposed or threatened exercise of a power did mount to a court purporting to direct VLA to act unlawfully, then for the reasons I have put, probably too many times, 68L(2) does not authorise that.

CALLINAN J: Mr Walker, the mere fact that that is a possible consequence is a relevant matter, is it not, to the construction of section 117 because you are otherwise imputing to the Commonwealth an intention possibly to inflict upon a State or impose upon a State an action which would be unlawful. I am not talking about the constitutional aspect now.

MR WALKER: The Victorian Legal Aid Act?

CALLINAN J: Yes.

MR WALKER: Yes. With great respect, yes, we accept that that is certainly relevant.

CALLINAN J: Could I just ask you this on a slightly different line because it is a matter that has been troubling me. There is an established principle, is there not, that all courts, even courts limited by statute, have an inherent power to control abuses? Are you aware of any such principle?

MR WALKER: Yes.

CALLINAN J: I think it is referred to, for example, in Director of Public Prosecutions v Connolly, an English case, but that is not the only reference to it.

MR WALKER: Yes, your Honour.

CALLINAN J: Assuming that I am right about that, that there is such a principle, the application of it might be an answer to some of the problems that you have posited in relation to intermeddlers or people acting oppressively.

MR WALKER: It would not add anything to 117 properly understood, in our submission, your Honour, but the existence of that jurisprudence and that expectation of a superior court is a reason why, against the background of, using as a point of departure, the tradition and orthodoxy, one would not regard the extension, if it be an extension, as in any way alien to the purpose of this Court.

CALLINAN J: I must say I would be interested in any authority on inherent powers. I do not mean now.

MR WALKER: Your Honours, could I just add to - - -

GAUDRON J: I think the case may be Spautz v Williams and I think there may be a distinction between superior courts and inferior courts only in the sense of superior courts have inherent jurisdiction and inferior courts implied jurisdiction.

MR WALKER: Yes, your Honour. Your Honours, could I add to this question of the supposed incapacity of the Victorian Legal Aid not in terms relied upon by them. We have Schedule 2 of the agreement which sets as a Commonwealth priority - it happens to be the first named, though these are not ranked. It happens to name as the first one in Schedule 2 under the heading Family Law separate representation of children, which highlights that one would not readily say that this was inefficient, uneconomic or inequitable or any of the other things not dispelling fear or distrust for orders of this kind to be made let alone to be observed. That should require and should await case-by-case factual demonstration.

The material before your Honours would suggest that VLA and the Commonwealth are agreed on the view that that is a priority. Similarly, one finds, of course, the agreement on page 3 of Schedule 3 to which you have been referred as to how child representation matters ought to be considered. What that shows, of course, is that in child representation matters the Commonwealth will in many cases, including this, require the VLA and the VLA will act accordingly, not as a funding body but as what might be called a conduit. It will provide the service and then seek to be recouped, not funding at all. So VLA is not to be seen as merely a body funding and, therefore, a body about whom the court would be tender in relation to orders for costs.

Those guidelines make it quite plain that it is intended to recoup the costs, not to fund, except temporarily, for many, many cases, that is for everyone who cannot be shown to the satisfaction of the Commission of the VLA not to be able to afford it.

GUMMOW J: Now, Spautz v Williams, it might help for the record, is [1992] HCA 34; 174 CLR 509. Now, you referred to Elias v Gordon, Mr Walker, if we can get back to the text of this order 3. Elias v Gordon and Brown v West are cases about administrators who think they are acting under section 10, but they are not, and they had power under section 8 and it is okay.

MR WALKER: Yes, your Honour.

GUMMOW J: Are there authorities that apply that to orders of Federal Courts, which are expressed to be made - - -

MR WALKER: I am not aware of any, your Honour. Elias v Gordon, of course, was a court martial.

GUMMOW J: Exactly, yes. I am talking about Federal Courts.

MR WALKER: Yes, I am not saying it was Federal Court, I am saying it was a court martial, so it was plainly judicial in quality.

GUMMOW J: Yes.....liable to be executed, I think.

MR WALKER: They were sentenced to be hanged, yes.

GUMMOW J: Yes. But are there any authorities that bear on Federal Courts in that aspect?

MR WALKER: I am not aware of any, your Honour. I am not saying there are not any.

GUMMOW J: It would be helpful to know, in due course.

MR WALKER: If we obtain any, we will notify the parties and the Court.

GAUDRON J: While you are interrupted, am I right in thinking that your argument, both with respect to 117(2) and section 68L is that the position of Victoria Legal Aid is different if it has acceded to a request to provide separate representation; that is to say, an order could not be made initially for them to provide separate representation, but an order could be made to continue it? Or having that effect.

MR WALKER: Your Honour, we would prefer not to have taken a position on that matter. We will confront it now. One of the other many difficulties about this whole notion - perhaps an example of why not to use the passive voice in any legal document - is that an order that a child be legally represented leaves in the air, and practice - and this case demonstrates just how invidious and close to unworkable it could be to put that order into effect.

GUMMOW J: But you say it is, nevertheless, valid in the sense that it is within power, however confused it - - -

MR WALKER: I hope this is not a plea ad misericordiae. We say, notwithstanding all those threatened reasons to regard it as unworkable, the public policy - the public interest in having such a system would induce this Court, if it can, to make it workable, however much one ought grumble about the words of (a) that statute and (b) this order. In answer to Justice Gummow, we say, yes, it is valid, notwithstanding the - - -

GUMMOW J: Is it a final order, by the way, or an interlocutory order?

MR WALKER: Your Honour, in our submission, it must be interlocutory.

GUMMOW J: So, it could be fixed up, presumably.

MR WALKER: Yes. Your Honours will have noted in the history that there was, as early as February, I think, a declared intent that, unless the parties were to stump up with the money, then there would be an order sought for the discharge of the separate representative. I am unable to assist your Honours on what juristic basis one needs a discharge if, according to VLA, it is not bound to provide anything. It may be that it is a matter of courtesy and practice, but it does not sit readily with the statute. The statute does not oblige anyone in terms, as, for example, section 360A of the Crimes Act, Victoria, does and, so, we readily concede that there are difficulties. It bristles with difficulties as to how it should be made to work. In our submission, the Court would approach it on the basis that it ought to be made to work.

The reasons why it ought to be made to work, I do not want to go into, except to refer your Honours to a joint report of the Human Rights and Equal Opportunity Commission, and the Australian Law Reform Commission, entitled "Seen and Heard", Priority for Children in a Legal Process, Report No 84 and, in particular, chapter 13 of that document. That document points out (a) the importance that there be so-called best interests representatives, who are not advocates for the children, and of whom the child is not a client, and (b) points out the enormous anomalies or peculiarities of that position.

It is neither fish nor fowl. It is not a party. It is not a legal representative. It is not an advocate. It is not an expert. The child is not a client but it is in the best interests of the child that the separate representative must work. The child's wishes should be communicated to the court without, apparently, a view that confidentiality provides any inhibition.

Chapter 13, in particular, of that document points out these aspects of the separate representative which, we stress, makes it sui generis a peculiar institution, one which is well within Parliament's capacity to regard as appropriate for family law and one which, therefore, in our submission, this Court would seek to assist rather than to point out that according to traditional and orthodox views of parties and costs and the ability to enlist assistance simply has not worked according to the scheme.

GUMMOW J: Is this some plea on discretionary grounds to withhold prohibition?

MR WALKER: No, it is not a plea on discretionary grounds.

KIRBY J: You have heard of motherhood provisions in statutes, well this is a childhood provision in statutes.

MR WALKER: I hope not, your Honour, because - - -

KIRBY J: When you get to the crunch of actually enforcing it and making sure it works, you face problems such as we have had to grapple with today.

MR WALKER: Your Honour, the separate representative has been described in decisions of the Full Court of the Family Court as ultimately being there to assist the court, not as an advocate owing the same duties of loyalty as an advocate does to an ordinary client and, in our submission, the fact that it is there to assist the court means that this Court, at the apex of the judicature of this country, would not lightly, by reference to tradition and orthodox views of costs, read sections 117 and 68L so as to prevent the funding of this odd position. There is no client who is liable to pay the separate representative's costs. There was, in fact, an employer and the order as made invites ridicule, we accept, whereby you say the employer is ordered to pay the costs the employer incurred in employing the employee. They have already been paid. It is almost impossible to understand in an accounting sense what would happen if one applies the analogy of an ordinary costs order but we insist, a separate representative, because it already breaks the mould of what is to be expected, is an institution in the statute which Parliament, one ought to be supposed, intended to work. If there cannot be funding by costs orders or by 68L(2), in our submission, it cannot be made to work and if this Court were to reach that conclusion it ought to be clearly stated that neither under 117(2) nor under 68L(2) can the Family Court be secure - - -

GUMMOW J: Maybe it is can be, Mr Walker, then the question is, even on your construction, how are these orders to be supported?

MR WALKER: Your Honour, I think, is asking about the order?

GUMMOW J: Yes, because that is what is sought to be prohibited. At the end of the day, one has to say prohibition and certiorari or not.

MR WALKER: Yes. They ought to be supported because the words "pay the costs of" include, in the events which were before his Honour, "bear the costs of". That is they had already paid her wages. In many ways simply dismissing VLA's original application or the separate representative's original application would have served the financial purposes sought to be achieved by this order, that is, they would not have been able to slough off on to the parties the costs of the separate representative.

There, with respect, we take issue with some suggestions by Justice Kirby that people who can afford it should pay for a separate representative. Why not pay for a court counsellor? Why not pay for the judge? This is part of the court system in the family law and a separate representative will very likely put something, one hopes, utterly independent of the parents.

CALLINAN J: Mr Walker, the legislature could have done all of that. It could have made that special provision that you are talking about.

MR WALKER: Yes, your Honour.

CALLINAN J: It stopped well short of that. It could have appointed a children's counsel or a children's counsel agency.

MR WALKER: Yes, your Honour.

CALLINAN J: Could I just ask you a question. Her Honour, the presiding judge, asked you really whether you drew a distinction between an order against the VLA in these circumstances and an order against a non-party generally. Would you just assume for present purposes that you are bound to draw that distinction? Would you tell me shortly as you can what your proposition is in relation to the VLA?

MR WALKER: One, that it does not have a special immunity. I am not talking about - - -

CALLINAN J: No, on the facts of this case. I thought you relied upon some particular facts. I am sorry, I should have made that clear. On the facts, what is the factual situation here applying to the VLA in this situation which makes it different from the ordinary case?

MR WALKER: The factual situation, put briefly, is as follows: for several years VLA had provided separate representatives.

CALLINAN J: For this child?

MR WALKER: For this child.

CALLINAN J: Right.

MR WALKER: Two: in February of 1997 the VLA had started - clearly in deference to and bound by the policy of the Commonwealth enshrined in the agreement and imposed on VLA by statute, that the parties should bear the costs. That means total reimbursement of providing a separate representation. That is where, presumably, his Honour Justice Faulks was led to make observations which we have no brief for, about the VLA making a profit, being entrepreneurial. In any event, it appeared to be recoupment. It seems to have to do with the cost of employing an officer, maybe including overheads.

KIRBY J: So you say, it is the change, it is the fact that up until February - - -

MR WALKER: No, your Honour, it is much more than the change. That is part of it. Because I am trying to avoid, if I possibly can, claiming that once they had accepted it, like priesthood, they were there forever. I am trying to avoid saying that. What happened then was that after what I call inconclusive correspondence in which there were no checks forthcoming in favour of VLA for the separate representative, in July the case was fixed for September, a case that had been around for a long time. Then we had correspondence in August culminating in, as it were, the letter before action, "Now we are going to sue you for costs." They talked about seeking an order for discharge of a separate representative.

If that had happened a long time before the fixture, or before the fixture was made, perhaps there would be no prejudice to the parties but having talked about it, they did not do it. Their forensic conduct was that that was how they were going to confront the problem of funding, then ask to be discharged. But, no, they leave it to the eve of the hearing. They then say, "We will sue you, the parties, for the money". VLA lodges an application. It brings itself within court to say, "We want your money", and the judge says, "Hang on, who are you?", in effect, and then they say, "Well, actually, we are the separate representative, our employee, who is directed by us, and we will make the application in the name of the separate representative". And the reality is, clearly, it was only in the name of the separate representative.

CALLINAN J: That sounds like a reprisal against VLA for exercising its statutory rights.

MR WALKER: No, your Honour. Your Honour, whether it be a statutory right or not, is not relevant to the facts. Your Honour asked me for the facts. Let it be assumed it was all pursuant to a statutory right. It is pursuant, your Honour, to ordinary civil rights that parties behave themselves in relation to court proceedings so as to expose themselves to costs orders.

KIRBY J: All of this is designed to show that VLA is not a stranger to this litigation - - -

MR WALKER: Not a stranger and not merely a funding authority. In this case, not merely a funding authority - - -

KIRBY J: Where do you get all those facts that you have just lined out? Are they all in Justice Faulks' reasons?

MR WALKER: Yes, your Honour. Yes, they are.

KIRBY J: And there is no dispute about those factual matters?

MR WALKER: No.

GAUDRON J: Well, that takes me back to the question I asked earlier: am I right in thinking that your argument postulates that no order can be made against a legal aid body to provide a separate representative but one can be made in substance to continue to provide a separate representative?

MR WALKER: No, your Honour. Under 68L(2) I have to be brave enough to say it can be made to provide it as well.

GAUDRON J: Not having involved yourself in the proceedings - - -

MR WALKER: I am now talking about 68L, your Honour, yes.

GAUDRON J: Yes.

HAYNE J: So it goes beyond the intermeddler?

MR WALKER: For 68L, yes.

GAUDRON J: So what then is the difference, there having been no intermeddling between the VLA and Mr Packer?

MR WALKER: What the initials VLA stand for, your Honour, and the agreement with the Commonwealth, that the Commonwealth and the State have agreed that the VLA should do things including provide separate representation for children.

GAUDRON J: In a certain way.

MR WALKER: In a certain way which has not been shown to have been infringed in this case, which may in another case be shown to be infringed.

KIRBY J: These are issues relevant to testing your propositions, but you say that you do not have to answer those questions because by the Knight proposition, if that runs in this case, here is a person who is not just a stranger but is well and truly in the well of the court and has been at the Bar table and has been taking an active part in litigation and, therefore, under the control of the court and subject to its orders?

MR WALKER: Yes, that is my fall-back position and it applies both to 68L and to 117. My earth, moon and stars submission that I have just put applies only to 68L(2), not to 117. Could I complete my answer to Justice Callinan. It is not a reprisal for what they have done, as it were, a punishment, it is because of the expense they threatened to a hearing which was calculated to be aborted unless the separate representative was present and that was why the order was made, to ensure that the trial could go ahead by an order as to costs. For want of costs VLA said, "Our officer won't turn up".

CALLINAN J: I withdraw the word "reprisal". I understand your point on that.

MR WALKER: So it was not a costs order to mark disapproval of past conduct. It was a costs order to prevent imminent future prejudice.

CALLINAN J: I understand that.

MR WALKER: And we stress, your Honour - and this is not merely sentimental - that this is a case in which there is more than just the parties; there was the child as well. We return to the peculiar institution - - -

KIRBY J: You are introducing a practical element here now. What then happened was, as I understand it, Justice Kay made his order burdening the parents and the trial went ahead, presumably with the parents paying for the - - -

MR WALKER: Burdening the parents, providing liberty for that to be varied, providing liberty to apply against my other clients, the grandparents, and that is how it went ahead. That is why the child does not have a present interest before this Court. Your Honours, could I simply in conclusion, in relation to non-parties, my learned friends in various interests have already drawn to your Honours certain authorities and they are in written submissions. Could we draw to your Honours' attention Pagliarella [1994] FamCA 16; (1994) FLC 92-460, a decision of Justice Hammond. In relation to the anticipatory element, without taking your Honours to any of these authorities, could we draw to your Honours' attention that which is revealed of the Family Court's practice by the first instance decision in Jackson v Hamer (1993) FLC 92-419 at 80,303 to 80,304. Finally, Zschokke [1996] FamCA 79; (1996) FLC 92-693 at 83,217, a Full Court decision.

As your Honours have already been told, in the refusal of special leave in Breen v Breen, this Court left open in its very categorical statement that there was jurisdiction to make the order in that case, whether it was under section 117(2) or section 74. The latter of course does not apply in this case because it does not apply to child cases. So that at first instance in the Full Court of the Family Court and in this Court, the matter remains open as to whether anticipatory orders in relation to costs are within the jurisdiction granted by section 117.

Your Honour Justice Gummow before the break said there was no such thing as future costs. In our submission, that does not really emerge from the very text in question. The very text in question talks about security for costs. Costs in the expression "security for costs" are by definition future costs.

GUMMOW J: I think we are at one. We accept what the Solicitor for Victoria says about that.

MR WALKER: And we are certainly not seeking to characterise anything done in this case as security for costs.

GUMMOW J: That is right.

MR WALKER: The money was to be grabbed. It was not to be held as a safeguard for any future order. I simply make that textual point because the statute itself, when it talks about security for costs, recognises, as everyone does by that phrase, that there is such a thing as future costs. In our submission, then the statutory expression "order as to costs" ought, as a matter of ordinary English, incorporate the contemplation of costs yet to be incurred just as it does in the expression "security for costs". The word means the same, in short, in both of the phrases in which it appears in the same sentence in the statute.

For those reasons, in our submission, your Honours, regardless of constitutional matters, or I should say subject to constitutional matters upon which we have not been heard, for reasons of statutory interpretation, the order ought to be upheld as to its first half under section 117 or, alternatively, as to its whole under subsection 68L(2).

KIRBY J: What does one do if one takes a view that the order is very inelegant and wrongly drafted in form, very imperfect, but that the attacks on it from a legal point of view have not been made out?

MR WALKER: Well, in your Honours' reasons, there can be a deploring, which will be instructive, of looseness of draftsmanship or of unattractive legislative style.

GUMMOW J: Or you would say just discharge the order nisi?

MR WALKER: Yes, your Honour. But I think his Honour Justice Kirby was asking could there be a Parthian shot, and the answer is "yes", and perhaps it would be instructive. However, in our submission, if it passes muster as a matter of power, then, subject only to such reasons as need to be expressed in relation to the care which should be taken by parliamentary draftsmen, or by those drawing orders, there is nothing further to be done. May it please your Honours.

GAUDRON J: Thank you Mr Walker. Might we hear your argument this afternoon if we sit on a little while, Mr Burmester?

MR BURMESTER: Yes, your Honour. I expect to be very brief, given the time.

GAUDRON J: Thank you.

MR BURMESTER: Your Honour, we have made written submissions in this matter and I would adopt those. It is clear from those submissions that our contentions relate to the construction of section 117 only, and we make no attempt to rely on section 68L in this regard. In looking at this matter, we saw an order that, on its face, purported to be an order pursuant to section 117 and it was to that issue that we addressed our submissions.

Let me also make it clear that we make no submissions on the actual form of the order. Our submissions are confined rather to the power under which costs orders might be made and to whether they can extend to third or non-parties, and the power to award future costs or anticipatory costs.

Your Honour, in relation to the construction of section 117, we say that there is nothing in the words of that provision that requires it to be limited. It ought to be regarded as equivalent to the general costs powers conferred on other courts, such as the Federal Court, or section 26 of the Judiciary Act. That the only feature that it has that those general cost sections do not have is the provision of subsection (2A) and while that sets out some requirements that must be taken into account in considering the exercise of a discretion under subsection (2), they are not the sorts of considerations that in any way qualify or prevent subsection (2) being seen as a general discretionary cost power.

KIRBY J: So, picking up the point made by the Solicitor-General for South Australia, you would agree that the court might make an order against the Commonwealth. The Attorney-General for the Commonwealth agrees that is within the power of the Family Court under section 117 to - - -

MR BURMESTER: Yes, your Honour, we seek no special treatment for the Commonwealth. Of course, our submissions make it clear that the circumstances in which a costs order would be ordered against a State, the Commonwealth, a legal aid body, are limited to the sorts of limited situations dealt with in the cases like Knight. In terms of a costs order against a non-party, we consider the power exists but it is, of course, a limited power on the basis of the recognised authorities like Knight and the House of Lords' decision in Aiden.

GAUDRON J: What is the limitation that we read into the section?

MR BURMESTER: Your Honour, it is a requirement for a power that has to be exercised judicially in a situation where natural justice is accorded, so as Mr Walker contended that one does not pick someone off the street and say there is a power to make an order against such a person. Rather, it is a power to make a costs order where the interests of justice require, and that obviously requires that there be some relevant connection between the person against whom the cost order is being made and the receivings in issue.

So, it is not a power to impose an obligation on some body that just happens to be standing nearby and, for that reason, as our submissions indicate, it would be very rare and exceptional that one would find a legal aid body to be an appropriate body to whom a costs order ought to be made. But in terms of the power provided by the section, we say there is no reason to read it in any way differently from the sorts of orders that were said to be within power in the Knight decision.

In saying this, your Honours, can I just briefly mention some authorities which have looked at other statutory powers? Section 32 of the Bankruptcy Act in Bent v Gough.

GUMMOW J: Are these in your outline?

MR BURMESTER: Yes, your Honour, in footnote 8.

GUMMOW J: Well, is that not enough?

MR BURMESTER: Section 43 of the Federal Court Act and there, can I mention specifically the Caboolture Park Shopping Centre Case (1993) 45 FCR 231, and there the Federal Court said that because of the breadth of the general cost power, there was no need to rely on any inherent jurisdiction to award costs against solicitors, and we would say that is the same situation here; that the costs power in section 117 can, in appropriate cases, be used to award costs against solicitors. There is no need, as Justice Callinan suggested, to look for some separate inherent power when you have an express statutory power to award costs.

The only example of a court saying there is no power to award costs other than against a party is a situation arising under section 1335(2) of the Corporations Law, where there is an express provision in the Corporations Act which says costs shall be borne by such a party as the court directs, and the Federal Court has interpreted that as an express rule which qualifies any general power. There is also the decisions in relation to the provision in section 347 of the Workplace Relations Act. One case referred to in our footnote 8 is Nicholson v Heaven & Earth Gallery where, despite a limitation on the court's power in section 347, that has been construed as only applicable to inter partes costs and has not been construed as an absolute prohibition on awarding costs to non-parties.

Your Honour, just briefly on future costs, in our submission, there is no reason why a power expressed in the form in which section 117 is cannot be exercised so as to involve the payment of a sum of money on account of costs to be incurred. In our submission, this falls within the words of the provisions. Reference has already been made to Breen where this Court referred to an order along these lines. Can I also refer your Honours to the decision of Parker (1992) 16 Fam LR 458 in the New South Wales Supreme Court and in that case there is a similar special leave to appeal considered by the Court of Appeal and, again, statements at pages 462 to 3 that these sorts of orders were not unexceptional and certainly special leave was refused in that.

GUMMOW J: Parker v Parker was between spouses as well, by the look of it, or de facto parties.

MR BURMESTER: It was, your Honour. It was a De Facto Relationships Act. The other case I would refer your Honours to is the Zschokke Case to which Mr Walker referred where the Family Court undertakes a review of the various authorities dealing with the award of costs in these situations and the history of the award of costs in this area is traced back to section 125 of the Matrimonial Causes Act.

In these cases which have recognised the power there is, of course, a recognition that the order should be made in a way that is certain and ascertainable, that it should be done in a way that subjects the expenditure to the necessary protection such as payment into court or payment into a trust fund or payment on account. The bottom line in all the cases is that the requirements of justice must be done, so that the parties against whom - or the persons against whom the order is being made are protected from any injustice in which the funds are expended.

In our submission, with those safeguards there is no reason why the power should be confined to prevent such appropriate orders. Your Honours, there has been some discussion concerning the power of the VLA under its own statute. In our submission, the correct approach is to start with the section of the Commonwealth legislation and ask to what extent it authorises a particular order. It would be a mistake to start with the Victorian legislation and look for a particular power there. In respect of most statutory bodies, whether under Commonwealth or State law, I am sure you do not find express provisions about meeting costs orders made by courts. It is assumed that if such an order is made, and properly made against the body in question, that meeting that order would normally fall within the incidental power available to the body in order to discharge its relevant duties and functions.

So, in our submission, there is no need to find an express provision within State legislation. I leave aside questions about whether, in the absence of appropriation, orders can be enforced and matters like that which might well have constitutional issues involved. But as a matter of practice, we would say, that a body like the VLA established by statute, given the powers of a body corporate and the liabilities of a body corporate, is in no different position in terms of meeting a costs order than any other body corporate. In any event, if one looks at the VLA Act, there are in our submissions provisions there which would be adequate to support any costs order properly made against it. I think reference has been made to paragraph 3(2)(e), 6(2)(g) and section 41. Your Honours, we have in our submissions dealt from paragraph 15 on with the exercise of the discretion. As Your Honour Justice Gummow noted earlier this morning, that is not an issue directly before the Court.

GUMMOW J: It is not before the Court.

MR BURMESTER: But those paragraphs were put in to demonstrate some of the issues that possibly arose, depending on the view one took of jurisdictional questions. As our written submissions make clear, what we contemplate is that orders for costs against non-parties such as orders against the VLA would be made in rare and exceptional situations but, in our contention, in such appropriate cases, such orders would be within the power. If the Court pleases.

GAUDRON J: Thank you Mr Burmester.

MS CRENNAN: Your Honours, we will take about 10 minutes.

GAUDRON J: Yes, we will sit on, Ms Crennan.

MS CRENNAN: I hope I can stick to that time. First of all, just before I deal with two matters in reply, in so far as I promised his Honour Justice Kirby that I would provide the page references which would permit me to justify an assertion that there was a consensus between the minority and the majority in Dietrich Case to the effect that legal aid was a matter for governments and not a matter for courts. Those are to be found at page 330 in the judgment of his Honour Justice Deane, 357 in the judgment of his Honour Justice Toohey, 365 in the judgment of her Honour Justice Gaudron and 297 to 298 and 311 to 312 in the joint judgment of the Chief Justice and Justice McHugh.

May I then, in reply, deal with two points. First of all, with the argument put by my learned friend, Mr Walker, arising out of the fact that VLA did not seek to make an issue in relation to an award of costs against it on the intervention made before his Honour Justice Faulks. We say in response to that, we made an intervention on an interlocutory application which would have the result that for the purposes of the interlocutory application, we could be deemed to be a party under the provisions of section 92A of the Family Law Act which we looked at this morning. I do not want to return to them. It should not really be necessary to do so.

The second point to be made about it is this, your Honours, that the whole involvement of legal aid in the provision of the separate representation in this particular proceeding, commenced, of course, with a request from the Family Court, in the first place, that it provide the separate representation.

All that was happening on this occasion was a limited involvement where there was funding continued for the purposes of the separate representative making an application which would secure the continuation of the representation pursuant to the provisions of 68L(2).

GUMMOW J: So it is not apt to use an emotively charged word like "intermeddling"?

MS CRENNAN: That is right. In fact, "intermeddling" seems wholly inappropriate when the rule was there because there is an initial request.

GUMMOW J: You asked to be there.

MS CRENNAN: Yes, indeed.

KIRBY J: Not intermeddling, but certainly there. I do not think Knight turns on intermeddling.

MS CRENNAN: No, no, I am responding to Mr Walker. Two points: we are only there for the interlocutory application; that is number one, so nothing can be said against us on the basis that there is an inconsistency in our position being here when one considers we are not complaining about the costs order against us on that interlocutory application. That is the first point. The second point is I just draw attention to the fact that we are never intermeddling in these sorts of matters because we commence to fund separate representatives or have done in the past on the basis of an initiating request from the Family Court.

That brings me then to the second matter to which we wish to make a reply and that is, as one might have expected, Mr Walker's arguments in relation to section 68L and the breadth of power which he seeks to draw from the rubric, "make such orders as it considers necessary to secure that separate representation".

Our first response to that and the simple one is that section 68L(2), we would submit, has an ample and sensible effect without implying into it the power he seeks to imply into it. That is the first and simple point. The second point we would make - - -

GUMMOW J: Sorry, what is the first point again?

MS CRENNAN: The first point is that it can be construed sensibly and amply and effectively to expressly provide for orders such as ordering that the parental parties contribute or ordering, for example, that the godmother, if she is an applicant for the separate representative, could contribute. It is important always, we would urge your Honours, to bear in mind the circumstances in which these orders are made and they are set out at 68L(3) under circumstances in which the orders can be made are either on the court's :

own initiative; or

(b) on the application of:

(i) the child; or

(ii) an organisation concerned with the welfare of children; or

(iii) any other person.

Now, in so far as Mr Walker was suggesting there are persons in the shadows, if you like, other than the mother and the father frequently in Family Court matters, of course a person such as a godmother or someone who does not have either a parental relationship or is also not a grandparent of the child can, one would assume, under that subsection make an application that there be separate representation.

It may be possible to argue that there is a power accordingly under the rubric of better securing that separate representation to order a well-heeled godparent who is the applicant under that subsection to do so, but we would be saying it is a much longer bow to draw to say that because Parliament has provided for a separate representative that that gives the circumstances of 68L(2) a suis generis aspect which means that one should imply into the words "better secure the representation" a power to conscript essentially non-parties to financially support the separate representation and we, of course, say to the extent that Mr Walker is seeking to persuade your Honours to do that, the argument is wrong.

Egging on and persons who have those sorts of roles, it seems to us, it is hard to imagine any sensible examples which one could consider in the context of his argument about this section of the Family Law Act being sufficiently wide to make orders against non-parties who have not meddled in the slightest degree in order to ensure that they financially support a separate representative.

Now, may we make that point good by also making reference to the reasons of his Honour Justice Faulks to be found at the application book at page 115 where he dealt with this point because he has some revealing things to say about the precursor to section 68L(2). At about line 11 of the page he says:

when the Act was originally enacted there was in existence an organisation which was an agency of the Commonwealth Government known as the Australian Legal Aid Office. It may have been appropriate in those circumstances for the Parliament to have included a provision in the Act, as it then was, that the Court could, in appropriate circumstances, order that that agency provide the aid on the basis that it represented the Government to provide representation for children in proceedings directly related to them.

However, it is to be noted that the Parliament did not take that course in that the old section, section 65, which preceded this section until 11 June 1996.

Now, his Honour then notes that the old 65 contained within its terms the statement that:

The Court may order that a representative be appointed and request.....that the legal aid office make provision for such representation.

Now, in the current version of 68L(2), that needs to be considered in conjunction with the Rule of Court, and I have given your Honours a copy of this in our list of authorities. It is Order 23 rule 4 subrule (2) and it provides that:

If the court orders that a child is to be separately represented, it may request that the representation be arranged by a legal aid body that is a relevant authority within the meaning of section 116C of the Act.

Now, it would be odd, we urge, if arising out of a sui generis nature of the provisions for a separate representative, that is 68L(2), together with the Rule of Court, contained, if you like, completely contrary provisions, because the fact is separate representatives, whilst ordered by the court - and I mentioned this this morning - that ordering of the separate representation is customarily followed by a request to legal aid.

GUMMOW J: But that was under a rule.

MS CRENNAN: That was under the rule, but it was originally as part of section 65, your Honour.

GUMMOW J: Yes.

MS CRENNAN: I must accept it is no longer part of the express words in 68L(2) but, dealing with section 65, it would be odd if in the context of Parliament providing for separate representatives, because they have been provided for since 1975, was then in section 65 which contained the same rubric, make orders to secure the separate representation, had in its terms a request to do so. It suggests that section 65, which contained the same form of words as 68L about the securing, was never intended by Parliament to have the width for which Mr Walker contends. If there was the power to order legal aid under old 65 and now under current 68L(2), the request would be utterly superfluous.

Next we wanted to come, if we might, to Heard v De Laine, which his Honour Justice Faulks regarded as constraining him on this point, and that is set out in his judgment at 116, and I do not pause to read it but want to go directly to Heard v De Laine, if I may. That was No 6 in our list of authorities. Mr Walker referred your Honours to the passage at page 83,039. We wanted to direct your Honours' attention to the previous page, 83,038, where the Full Court, in dealing with the argument that 68L(2) could have implied into it a broad power to order legal aid first of all considered Dietrich's Case and the passage, indeed, in the judgment of Justice Brennan, as he then was, to which I referred this morning as being representative of the consensus is dealt with at about point 4 of the page:

There is no suggestion in the majority judgments that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction could be exercised in favour of an indigent person charged with a criminal offence which is other than serious.

The gravamen of the above decisions is therefore, that a party to civil litigation has no right in a legal sense to legal representation and, afortiori, the Court has no right to order a legal practitioner to act for, or appear on behalf of a party.

It follows that the Court has no power to order the Legal Services Commission to fund a litigant involved in civil litigation, for the reason that the Commission's decision to fund litigation arises from its statutory obligations and the duties, powers and responsibilities which the statute imposes upon it.

Then Mr Walker took your Honours to the passage at the top of 83,039. We do not wish to repeat that, but just opposite that passage, if we can indicate that there is a passage in the Full Court judgment where the Full Court judges say:

We take cognizance of the fact that legal aid commissions in the various States do not have unlimited funds to support litigants -

and so on.

They make those observations, and decline to make a finding that section 68L(2) - sorry, its precursor - has the width for which Mr Walker was contending, and we would say the reasoning that - - -

GUMMOW J: None of us are bound by any of this. The question is the cogency of the reasoning - - -

MS CRENNAN: Yes. I was going to say, we would submit that the reasoning is cogent. So, moving, then, beyond Heard v De Laine, the next point we would make is that there, of course, would also be available to us, in relation to the width of the construction of 68L(2), an Ascot Investments point. The final point we would make is, we would want to be heard in relation to the constitutionality, if the section had the width for which Mr Walker contends. So, those are the points we wish to make in reply.

Mr Walker was asked by the learned presiding Judge about the difference between VLA and Mr Packer and made reference back to the agreement, which is exhibit A1, and we wanted to indicate to your Honours that in guideline 1 of that agreement, concerning child representation, there is this provision:

In no circumstance should this Guideline be interpreted to indicate that there is an obligation on the Commission to make a grant of assistance because a court has ordered that a child representative be appointed.

So, that is relevant, of course, to the larger point upon which Mr Walker relies, namely, that the sui generis nature of the provisions which the Commonwealth Parliament have made are somehow sufficient to achieve the results that it is possible to enlarge the power under 68L. That concludes what we wish to say in reply, if the Court pleases.

GAUDRON J: Thank you, Ms Crennan. The Court will consider its decision as to the proper construction of the provisions in question, reserving until another day the constitutional questions, if it should become necessary for those questions to be decided.

AT 4.36 PM THE MATTER WAS ADJOURNED