FEDERAL COURT OF AUSTRALIA

Kowalski v Domestic Violence Crisis Service Inc [2002] FCA 1227

COSTS – application by respondent for costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) – principal proceedings concerned decision of Human Rights and Equal Opportunity Commission – application allowed and decision of Commission set aside– all parties ordered to pay their own costs of the proceedings – whether respondent is eligible for costs certificate – whether proceedings are a Federal appeal – possible question for law reform

Federal Proceedings (Costs) Act 1981 (Cth) ss 3, 6, 14

Kowalski v Domestic Violence Crisis Service Inc [2001] FCA 1082, referred to

Bullock v Federated Furnishing Trades Society of Australasia (No. 2) (1984-85) 58 ALR 373, referred to

IN THE MATTER OF AN APPLICATION FOR A COSTS CERTIFICATE UNDER

s 6 OF THE FEDERAL PROCEEDINGS (COSTS) ACT 1981 (CTH)

STAN LECK KOWALSKI v DOMESTIC VIOLENCE CRISIS SERVICE INC & ANOR

A 59 of 2000

MADGWICK J

2 OCTOBER 2002

SYDNEY (IN CHAMBERS)

THE COURT ORDERS THAT:

1.             The application for a costs order under the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

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

REASONS FOR JUDGMENT

HIS HONOUR:

1                     An application has been made before me in chambers for the issue of a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Act”) to the Domestic Violence Crisis Service Inc (“DVCS”), a respondent in the principal proceedings that were before me last year.

2                     Those principal proceedings concerned a challenge by Mr Kowalski to a decision of the Human Rights and Equal Opportunity Commission (“the Commission”) that the Commission had the power to continue to re-hear a matter, which had been remitted from this Court to the Commission for reconsideration.  Mr Kowlaski challenged the Commission’s decision on the basis that amendments to the legislative regime, which occurred after remittal of the matter to the Commission but prior to the matter being re-heard, meant that the Commission no longer had the power to hear the matter.  The proceedings raised questions as to whether upon remittance of the matter there was a continuation of the inquiry or a need to commence a new inquiry and consideration given to the purpose of the amending legislation.  The application was allowed and the Commission’s decision to re-hear the matter was set aside:  see Kowalski v Domestic Violence Crisis Service Inc [2001] FCA 1082.  In addition to allowing the application, an order was made that each party was to bear its own costs on the basis that the Commission had not sought to actively defend its position and the DVCS had only sought to protect itself from the expense of a completely new hearing.

Application for costs certificate

3                     The solicitors acting on behalf of the DVCS in a letter dated 22 July 2002 requested the Court to issue a costs certificate pursuant to s 6 of the Act.  The reasons submitted in support of the request included:

·                    the DVCS did nothing to encourage the Commissioner to reach his conclusion that he did have the power to re-hear the matter;

·                    the DVCS is a not-for-profit organisation providing a community service and it is unfair that it should be penalised in bearing legal costs for an error which was in no way occasioned by the DVCS; and

·                    DVCS was ineligible for legal aid in respect of the hearing.

Court’s power to grant costs certificate

4                     The Act makes provision for the Court to authorise the reimbursement of a party’s costs in certain federal proceedings and, as is the case here, the Court’s jurisdiction may be exercised by a member of the Court sitting in chambers: s 12 of the Act (see also Federal Court Practice Note No 6).  The Court’s power is discretionary and no appeal lies from a refusal of a Court to grant a costs certificate: s 13.  However, whilst the Court has a discretion to issue a costs certificate it must be empowered by the Act to do so.  It is also important to note that any such costs that are recoverable will come from the public purse and the Court must be satisfied that it is appropriate in all the circumstances to grant the certificate:  see Bullock v Federated Furnishing Trades Society of Australasia (No 2) (1984-85) 58 ALR 373. 

5                     The application in this matter is made pursuant to s 6 of the Act, which provides:

“6.(1)  Subject to this Act, where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

(2)       Subject to this Act, where a Federal appeal in relation to the amount of damages awarded by a court succeeds, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal.

(3)       The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of:

            (a)     the costs incurred by the respondent in relation to the appeal; and

            (b)     any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.”

6                     A “Federal appeal” is defined in s 3 of the Act as:

"(a)     an appeal to the Full Court of the High Court from a judgment of the High Court constituted by a single Justice; or

(b)       an appeal to the High Court from a judgment of the Federal Court; or

(c)       an appeal to the High Court from a judgment of the Supreme Court of a Territory; or

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

(e)       an appeal to the Full Court of the Federal Court from a judgment of the Federal Court constituted by a single Judge; or

(ea)     an appeal to the Federal Court from a judgment of the Supreme Court of a State; or

(eb)     an appeal to the Federal Court from a judgment of the Supreme Court of the Northern Territory exercising jurisdiction conferred on the court by or under a law of the Commonwealth, other than jurisdiction conferred under an Act providing for the acceptance, administration or government of that Territory; or

(f)        an appeal to the Federal Court from a judgment of the Supreme Court of a Territory; or

(fa)      an appeal to the Federal Court from a judgment of the Federal Magistrates Court; or

(g)         an appeal to the Federal Court from a decision of the Administrative  

            Appeals Tribunal; or

(ga)     an appeal that is:

            (i)         from a decision of the Administrative Appeals Tribunal; and

(ii)                heard and determined, or to be heard and determined, in the

Federal Magistrates Court; or

(h)       an appeal to the Supreme Court of a Territory from a judgment of another court of that Territory; or

(j)        an appeal to the Full Court of the Family Court from a judgment of the Family Court constituted otherwise than as a Full Court; or

(ja)      an appeal to the Family Court from a judgment of the Federal Magistrates Court; or

(k)         an appeal to the Family Court from a judgment of a court of a State, a 

          court of an internal Territory (including the Northern Territory) or a

          court of Norfolk Island.”

7                     It is also of relevance to note that costs certificates are not to be granted to certain persons or entities.  Section 14 provides the following exclusions:

“(1)  A court is not empowered by this Act to grant a costs certificate to:

(a)          the Commonwealth;

(b)          a State;

(c)          the Northern Territory;

(d)          a person suing, or being sued, on behalf of the Commonwealth, of any State or of the Northern Territory;

(e)          an authority of the Commonwealth, of any State or of any Territory (including the Northern Territory and Norfolk Island);

(f)           a body corporate that has a paid-up capital of $200,000 or more; or

(g)          a body corporate that is not a body corporate referred to in paragraph (f) but is  related to such a body corporate.

(2)  For the purposes of subsection (1), the question whether bodies corporate are related to each other shall be determined in the same manner as the question whether corporations, within the meaning of the Corporations Act 2001, are related to each other would be determined under that Act.”

8                     The applicant’s solicitors were invited to provide additional submissions to support DVCS’s request for a costs certificate, and in particular to address how ss 6 and 14 of the Act empower the Court, in this matter, to grant a costs certificate.  In response, it was submitted on behalf of DVCS that the appeal was in relation to a question of law, namely whether the proper jurisdiction for hearing the complaint was with the Commission or the Federal Court and in respect of s 14, it was submitted that the DVCS was not a body corporate with a paid up capital of $200,000 or more (see s 14(1)(f)), nor was it any of the other bodies excluded by s 14(1) of the Act.

9                     Whilst the principal proceedings involved a question of law, the legislation limits the availability of a costs certificate under the Act to those proceedings which are defined as a “Federal appeal” under the Act.  Relevantly, in respect of proceedings in this Court, the definition includes appeals to the Full Court of the Federal Court from a judgment of a single judge of the Federal Court; appeals to the Court from a judgment of a Supreme Court of a

State or Territory; appeals to the Court from a judgment of the Federal Magistrates Court; and appeals to the Court from the Administrative Appeals Tribunal.

10                  The proceedings before me do not meet the necessary definition of a “Federal appeal” provided in s 3 of the Act.  No provision is made in the legislation in respect of appeals to this Court from decisions of the Commission. I do not have the power to grant a costs certificate to the DVCS.  It is unnecessary to consider further the DVCS’s other submissions.

11                  The application for the issue of a costs certificate is refused.

12                  It may be that there is an unintended gap in the operation of the Act.  There does not immediately seem to be any reason why a costs certificate should be available in the case of an “appeal” to the Court from the Administrative Appeals Tribunal but not in the case of an appeal from the Commission. 

Associate:

Dated:              2 October 2002