FEDERAL COURT OF AUSTRALIA

COSTS - estimate of costs - first instance and Full Court costs - special leave to appeal to High Court pending - failure to object to costs estimate in accordance with Rules - certificate of taxation - motion to stay issue of certificate - motion dismissed.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Federal Court Rules O 62 r 45; O 62 r 46(3)

DONALD FULLER v MINISTER FOR PRIMARY INDUSTRIES AND ENERGY, NATIONAL REGISTRATION AUTHORITY

WAG 46 OF 1997

FRENCH J

PERTH

15 APRIL 1998

THE COURT ORDERS THAT:

1.         The motion is dismissed.

2.         Costs of the motion reserved.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

ON MOTION TO STAY ISSUE OF COSTS CERTIFICATE

On 10 January 1997 Donald Fuller filed an application in this Court seeking an extension of time to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review decisions by the Minister for Primary Industries and Energy and the National Registration Authority related to the release of the rabbit calicivirus.  The application was heard on 13 June 1997 and dismissed by me on 7 August. 

On 14 August Mr Fuller filed a motion for leave to appeal against the decision.  Carr J referred the motion to the Full Court.  On 27 August Mr Fuller filed a notice of appeal against the whole of the judgment given on 7 August.

The notice of appeal was dismissed on 15 October 1997 upon an objection as to its competency.  No order for costs was made.  On the same day the motion for leave to appeal was dismissed with costs by the Full Court.  Applications for special leave to appeal to the High Court against these decisions were filed on 10 November 1997 and 31 March 1998 respectively. 

In the meantime, the Minister has pursued taxation of the costs orders of 7 August 1997 at first instance and 15 October 1997 by the Full Court.  An attempt was made by the Minister to seek agreement that costs be fixed at $15,000.  It appears that no response was received.

On 12 January 1998 the Minister filed a bill of costs for taxation claiming $16,617.95.  On 15 January, Acting District Registrar Rayney directed that an estimate be made of the Minister’s bill.  Copies of the direction and the bill were served on Mr Fuller by post on 16 January.

On 11 February 1998, Deputy Registrar Stanley made an estimate of $14,600. 

On 16 February 1998 Mr Fuller sought the Minister’s agreement that further steps by way of recovery of the costs be stayed pending the application for special leave to appeal to the High Court.  Counsel for the Minister, on instructions, wrote to Mr Fuller on 23 February 1998 advising that he could not see any reason not to proceed to obtain a certificate of taxation.  Mr Fuller replied that he would apply for a stay order if action were taken to extract a certificate of taxation before determination of his application for special leave. 

On 26 February 1998 Deputy District Registrar Stanley wrote to Mr Fuller advising that if he wished to object to the Minister’s bill he should follow the procedures set out in O 62 r 46(3)(c) of the Federal Court Rules.

On 31 March 1998 Mr Corbould told Mr Fuller he had instructions to obtain a certificate of taxation but not to pursue the recovery of costs pending determination of the special leave applications in the High Court.

It might seem on this basis that Mr Fuller had extracted from Mr Corbould as much in the way of restraint as could reasonably be expected.  However, on 1 April he filed a motion for an order that the order for costs made on 7 August 1997 be stayed “pending determination of the appeal and related proceedings including those in the High Court of Australia”.  The motion came before me on 6 April.  I heard argument and directed the filing of any answering affidavit by Mr Fuller and written submissions.  An affidavit and submissions were filed by him on 8 April 1998 and on behalf of the Minister on 13 April.  Mr Fuller had asked that I disqualify myself from hearing and deciding this motion as I was the primary judge against whose decision he was appealing.  I declined that request.  The motion is purely procedural.  And although it would have made no difference to my decision to hear and decide the motion it was, in the event, unnecessary for me to consider the merits of the special leave application.

The relevant provisions of the Federal Court Rules are to be found in O 62 r 46.  By O 62 r 46(2) the Registrar may direct that action be taken under r 46(3) or r 46(4).  In the present case she directed that an estimate be made  under O 62 r 46(3) which provides:

“46(3)(a)  Upon the direction of the Registrar under subrule (2), a taxing officer may, without making any determination on the individual items in the bill, make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue.

(b)  The Registrar will notify each party interested in the bill in writing of an estimate made under paragraph (a).

(c)  Unless within 14 days of receipt of notice under paragraph (b), a party interested files and serves on each other party a notice of objection to the estimate, there shall be no taxation, and the amount of the estimate shall be deemed to be the amount for which a certificate of taxation may issue.

(d)  Upon filing a notice of objection a party shall pay to the Registrar an amount of $750 as security for the costs of any taxation of the bill.

(e)  Where a notice of objection is filed, the Registrar may direct that subrule (4) apply, or that taxation of the bill proceed.”

In this case the estimate was made on 11 February 1998.  On 24 February Mr Fuller sent a fax to the Registrar objecting “to the taxation of the bill at this time”.  He also indicated in his fax that he objected to much of the content of the bill which he believed had misled the Registrar into “an objectionable estimate”.  He referred to various items to which he took objection asserting that “the main thrust of the bill” was “quite outrageous”.  The Registrar responded on 26 February in writing saying, inter alia:

“As previously explained to you, should you wish to object to the bill you should follow the procedure set out in Order 62 rule 46(3)(c) of the Federal Court Rules.”

The Registrar also advised that there was no provision for referring any request for a certificate of taxation to Mr Fuller or to stay the execution of the certificate. 

The issue of a certificate of taxation is required by O 62 r 45 which is in the following terms:

“45(1)  On completion of taxation, the taxing officer shall issue a sealed certificate of taxation, with sufficient number of office copies as are needed for the parties responsible for the payment of costs.

   (2)  The certificate of taxation must be served on the party responsible for its payment.

   (3)  If, after 14 days from the date of service of the certificate of taxation, the costs remain unpaid then the Registrar shall, at the request of the party in whose favour the costs are awarded draw up sign and seal an order in favour of that party for the sum shown in the certificate of taxation and enter the same.

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   (6)  Every award of costs under a judgment of the Court shall carry interest calculated in accordance with Order 35 rule 8 from the date of the certificate of taxation quantifying the same.

   (7)  Subrule (6) shall apply to taxations taking place on or after 4 June 1990.”

The purpose of the rules under which the Registrar may make an estimate of the approximate total of the costs to be taxed is to provide a mechanism for the efficient and inexpensive disposition of cost assessments.  A party objecting to the estimate does so at his own risk as to the costs of the process of taxation which he invokes.

In this case Mr Fuller sent a fax to the Registrar which, on a broad view, could have been taken to be a notice of objection to the estimate.  Subject to the payment of the security for costs required under O 62 r 46(3)(d) it might have been treated as such.  Absent the Registrar’s letter of 26 February to Mr Fuller inviting him to object formally under r 46(3) there would have been a case for extending the time limited by the rules for objection.  However, although specifically invited to object under that rule he declined to do so.  Now he seeks a stay of the certificate of taxation.

Mr Fuller, having eschewed the objection process for which the Rules provides cannot now call upon the Court to delay the issue of the certificate which is a prerequisite for the taxation of costs.

It is true that I have concerns about the Minister’s desire to extract the certificate now and to refrain from enforcement action in relation to the costs.  That was a concern which I pressed upon Mr Corbould.  It did not however, reflect upon the merits of the motion but rather the utility of debating the issue of the certificate even though recovery action was not contemplated for the time being thereafter.

In my opinion there is no basis upon which the Court should stay the issue of the certificate.  In so saying, I am not concerned with the merits of the special leave application.  A consideration of its merits is not necessary for this decision.  I propose therefore to dismiss the motion.

Associate:

Dated:              15 April 1998