Open PDF of Judgment - Family Court of Australia

FAMILY COURT OF AUSTRALIA
WHITE & WHITE
[2014] FamCAFC 213
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – VARIATION OF
ORDER – Where the applicant seeks variation of a consent order for costs – Where
the applicant submitted that the power of the Court to make the variation sought was
provided for by r 1.11 of the Family Law Rules 2004 (Cth) – Where the power to
make an order for costs is provided for in s 117(1) of the Family Law Act 1975 (Cth)
– Where the Court is functus officio – Where there is otherwise no basis to vary the
order for the appointment of an assessor – Application dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the
order for costs sought by the applicant in her written submissions is treated as an oral
application for costs – Where the application is treated as being opposed – Where the
respondent did not seek costs – Where the application has been dismissed and there is
no basis for costs to be awarded to the applicant – No order for costs.
Family Law Act 1975 (Cth) – s 117
Family Law Rules (2004) (Cth) – rr 1.10, 1.11, 1.14 and 19.32(3)
Bailey v Marinoff (1971) 125 CLR 529
Bray & Bray (1988) FLC 91-968
Cranage & Cranage (1981) FLC 91-039
DJL v Central Authority (2000) 201 CLR 226
Gamser v Nominal Defendant (1977) 136 CLR 145
Guinness & Guinness (No. 2) [2008] FamCAFC 100
I Ltd & Chester and Ors [2010] FamCAFC 251
Kaljo & Kaljo (1978) FLC 90-445
Latham v Hubbard; Estate of Ross [2014] NSWSC 805
Lenova & Lenova [2011] FamCAFC 114
Martin & Harris (No. 2) [2009] FamCA 908
McDonald & McDonald (1976) FLC 90-047
Molier & Van Wyk (1980) FLC 90-911
Parsons v Martin (1984) 5 FCR 235
Pera & Pera [2008] FamCAFC 87
Phillips v Walsh (1990) 20 NSWLR 206
Ravasini & Ravasini (1983) FLC 91-312
Slapp & Slapp (1989) FLC 92-022
Vance & Vance [2011] FamCAFC 17
APPLICANT:
[2014] FamCAFC 213
Ms White
Coversheet and Orders Page 1
RESPONDENT:
Mr R White as the
Executor of the Estate of
Mr P White (Deceased)
FILE NUMBER:
SYC
4545
of
2009
APPEAL NUMBER:
EA
68
of
2012
DATE DELIVERED:
6 November 2014
PLACE DELIVERED:
Adelaide
JUDGMENT OF:
May, Strickland and
Ainslie-Wallace JJ
HEARING DATE:
In Chambers
LOWER COURT JURISDICTION:
Federal Magistrates Court
of Australia
LOWER COURT JUDGMENT DATE:
8 May 2012
LOWER COURT MNC:
[2012] FMCAfam 437
REPRESENTATION
SOLICITOR FOR THE APPLICANT:
ProActive Legal Pty Ltd
SOLICITOR FOR THE RESPONDENT:
Fox Legal
[2014] FamCAFC 213
Coversheet and Orders Page 2
ORDERS
(1)
The application in an appeal filed on 26 May 2014 be dismissed.
(2)
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
White & White has been approved by the Chief Justice pursuant to s 121(9)(g) of the
Family Law Act 1975 (Cth).
[2014] FamCAFC 213
Coversheet and Orders Page 3
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY
Appeal Number: EA 68 of 2012
File Number: SYS 4545 of 2009
Ms White
Applicant
And
Mr R White as the Executor of the Estate of Mr P White (Deceased)
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.
Before the court is an application in an appeal filed on 26 May 2014 by
Ms White (“the applicant”) seeking an order varying the orders made by this
court on 7 February 2014.
2.
On 7 February 2014 the Notice of Appeal filed on 1 June 2012 and the Notice
of Cross-Appeal filed on 25 June 2012 were listed for hearing before the Full
Court. However, both the appeal and the cross-appeal settled and this court
was asked to make orders by consent, which we did as follows:
3.
(1)
[R White] the executor of the estate of the husband (deceased) be
substituted as a party for the husband.
(2)
The appeal and cross-appeal be dismissed.
(3)
That the estate of the husband (deceased) and the respondent each
bear their own costs of the appeal up to and including 30 May 2013.
(4)
That there be no order as to costs with respect to the cross-appeal.
(5)
The estate of the husband (deceased) pay the costs of the respondent
of the appeal and the application in the appeal from 31 May 2013,
such costs to be assessed in default of agreement.
(6)
The assessor of such costs to be nominated by the wife’s solicitors.
The orders sought in the application in an appeal are as follows:
[2014] FamCAFC 213
Reasons Page 1
1.
That the Orders made by the Full Court of the Family Court of
Australia in Appeal EA 68 of 2012 be varied as follows:
(a)
the words: “assessed in default of agreement” in Order (5) be
deleted and the following words be inserted instead: “in the
sum agreed by the parties within twenty-one (21) days of
[insert the date of the variation of the order] or as assessed”,
and
(b)
Order (6) be deleted and, pursuant to Rule 1.14 of the Family
Law Rules, the following order be inserted instead:
(6)
For the purposes of compliance with the Family Law
Rules with respect to Order (5) the words “after the
end of the case” in Rule 19.21 are taken to be a
reference to [insert the date 28 days after the variation
of the order].
4.
The application is opposed, and a response was filed by Mr R White as the
Executor of the Estate of Mr P White (Deceased) (“the respondent”) on 24 June
2014 seeking dismissal of the application.
5.
The issue is whether the court is functus officio such that we have no power to
make the orders sought.
MATERIAL RELIED UPON
6.
The applicant relies on an affidavit of her solicitor, Jeffrey Keith Johnson filed
with the application on 26 May 2014, a further affidavit of Jeffrey Keith
Johnson filed on 3 July 2014, and written submissions also filed on 3 July
2014.
7.
The respondent relies on an affidavit of his solicitor, Anthony Fox, filed with
the response on 24 June 2014, and written submissions filed on 12 September
2014.
8.
We have determined to address the application and the response in chambers on
the basis of this material.
DISCUSSION
9.
Prima facie, once an order finalising a proceeding in perfected by being entered
into the court record, that proceeding is at an end and is beyond recall by that
court (Bailey v Marinoff (1971) 125 CLR 529, Gamser v Nominal Defendant
(1977) 136 CLR 145, and DJL v Central Authority (2000) 201 CLR 226). In
other words, that court is functus officio.
10.
However, there are recognised exceptions. For example, where there is a
statutory provision permitting the reopening of the proceeding, where there has
been a “slip” in drawing up the order, or there is an error in expressing the
[2014] FamCAFC 213
Reasons Page 2
manifest intention of the court, or where for the purposes of the interpretation
of the relevant order or for enforcement proceedings, the order sought to be
considered or varied is consequential as opposed to substantive.
11.
The exceptions are limited though given that the Family Court, while a superior
court of record, is a court created by statute, and does not have inherent
jurisdiction derived from the common law. It does though have “powers
expressly or by implication conferred by the legislation which governs it”, and
“in addition [has] such powers as are incidental and necessary to the exercise of
the jurisdiction so conferred” (Parsons v Martin (1984) 5 FCR 235 at 241, and
see DJL v Central Authority).
12.
Here the applicant argues that this court is not functus officio for the following
reasons:
a)
Section 117(2) of the Family Law Act 1975 (Cth ) (“the Act”) provides
that “the court may, subject to … the applicable Rules of Court make
such order as to costs … as the court considers just.”
It is said that under the relevant Rules of Court an assessment of costs is
to be carried out by a registrar, and thus “orders (5) and (6)” of the order
made on 7 February 2014 “are not in accordance with or consistent with
“the applicable Rules of Court”.
It is entirely unclear what the point of this submission is. It is not being
suggested that the court had no power to make the original orders, but
that would seem to be the logical conclusion of this submission.
It may be the answer can be found later in the written submissions of the
applicant. There it is said that for the following reasons the Full Court is
not functus officio:
(a)
The Court has a broad discretion to make orders for costs.
(b)
The discretion is to be exercised “subject to subsections
(2A), (4), (4A) and (5) [of section 117 of the Act] and the
applicable Rules of Court”.
(c)
Orders for the assessment of costs are to be made in
accordance with the Family Law Rules.
(d)
Applications may be made under Rule 1.11 to vary an order
made in the exercise of a power under the Family Law Rules.
(e)
The variations sought in the application seek to make the
orders consistent with the Family Law Rules.
Thus it is claimed in effect that there is power to make the orders sought
because they seek to make the orders consistent with the Family Law
Rules 2004 (Cth) (“the Rules”). However, we fail to see how that
[2014] FamCAFC 213
Reasons Page 3
provides a basis for finding that this court is not functus officio. It is not
a slip rule application, and no statutory provision is identified permitting
the reopening of this final order.
b)
The orders sought are said to be “under Rules 1.11 and 1.14 of the
Family Court Rules”. Rule 1.11 of the Rules (not the “Family Court
Rules”) provides as follows:
The court may set aside or vary an order made in the exercise of a
power under these Rules.
Rule 1.14 of the Rules provides as follows:
(1)
A party may apply to the court to shorten or extend a time
that is fixed under these Rules or by a procedural order.
(2)
A party may make an application under subrule (1) for an
order extending a time to be made even though the time
fixed by the rule or order has passed.
(3)
A party who makes an application under subrule (1) for an
extension of time may be ordered to pay any other party’s
costs in relation to the application.
Plainly it can be seen that the relevant Rule here for the purposes of this
submission is r 1.11; r 1.14 is only relevant to the question of an
extension of time in the event that a variation is made.
However, the difficulty with reliance on r 1.11 is that the orders that the
court made were not “made in the exercise of a power under [the]
Rules”; they were made under the Act (s 117).
It could perhaps be argued that paragraph (6) of the order was an order
made under the Rules, given that the Rules provide for an assessment of
costs. However, we do not understand that that is the argument of the
applicant; the argument is that that is an order that is not permitted by
the Rules.
c)
It is said that the decision of Fowler J in Martin & Harris (No. 2) [2009]
FamCA 908 is authority for the proposition that this court is not functus
officio in the circumstances of this case.
In Martin & Harris (No. 2) final orders were made determining the
substantive proceedings between the parties, and in relation to costs an
order was made that any application for costs be filed and served within
28 days. The wife filed her application one day late and brought an
application to vary the order by changing “28 days” to “29 days”.
Fowler J found that there was “clear authority in the Rules made
pursuant to statute the power to vary an order and to make that order
[2014] FamCAFC 213
Reasons Page 4
operate from the date of the judgment” (at [20]), and he did so relying
on rr 1.10 and 1.11 of the Rules. Rule 1.10 provides as follows:
(1)
Unless a legislative provision states otherwise, the court may
make an order, on application or on its own initiative, in
relation to any matter mentioned in these Rules.
(2)
When making an order, the court may:
(a)
impose terms and conditions;
(b)
make a consequential order;
(c)
specify the consequence of failure to comply with the
order; and
(d)
take into account whether a party has complied with a
pre-action procedure.
His Honour proceeded on the basis that the original orders were made
under r 1.10 of the Rules and 1.11 provided the power to vary those
orders.
In summary, his Honour considered that the original orders were
procedural orders, and that the court has the power to vary a procedural
order. His Honour relied on the Rules (in particular r 1.11) and “the
operation of the provisions of section 117 of the Act which gives the
Court a broad discretion to make orders for costs” (at [25]).
However, even if his Honour’s reasons are correct, about which we
frankly have some doubt, this decision still does not assist the applicant
here. As we have explained, the original orders were made under s 117
of the Act and not under the Rules. Again, the most that can be said is
that paragraph (6) of the orders was an order made under the Rules,
however, as we perceive it that is not the argument of the applicant.
d)
It is suggested that “the principle applied by His Honour Justice Fowler
in Martin & Harris (No. 2) were well expressed by His Honour Justice
McLelland in the following passage in Phillips v Walsh (1990) 20
NSWLR 206 at 209F-210A as cited by His Honour Justice White in
Latham v Hubbard; Estate of Ross [2014] NSWSC 805:
The question whether any particular application can properly be
made in existing proceedings is a matter to be determined according
to general law principles as modified by any relevant statutory
provision. One such principle of the general law is that when
proceedings have been disposed of by a final order which has been
entered, the proceedings are at an end and cannot be revived: see
generally Bailey Marinoff (1971) 125 CLR 529; Gamser v Nominal
Defendant (1977) 136 CLR 145; and FAI General Insurance Co Ltd
[2014] FamCAFC 213
Reasons Page 5
v Southern Cross Exploration NL (1988) 165 CLR 268. There are a
number of exceptions and qualifications to this principle but none
that has any relevance to the present application, unless it be that
subsequent to a final order application may be made for the
purpose of dealing with a matter involved in, or arising in the
course of, working out that order; for example, by making more
specific provision for its implementation or by modifying its
operation to take account of some subsequent change of
circumstance or by enforcing it. This exception or qualification
does not, however, extend to an application made for the purpose of
giving [substantive relief not sought in the statement of claim or
which is] substantially different to that given by the final order: see
generally Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22; 10 WN
(NSW) 146; Poissonn & Woods v Robertson & Turvery (1902) 86
LT 302; 50 WR 260; 46 Sol Jo 196; Dowdle v Hillier (1949) 66 WN
(NSW) 155; Re Porteous [1949] VLR 383; [1950] ALR 89; Cristel v
Cristel [1951] 2 KB 725 and Re Scott (1964) 82 WN (Pt 1) (NSW)
313; [1964-5] NSWR 1636.”
However, it is not correct to say that the principle expressed here is the
principle applied by Fowler J; it is an entirely different one, namely,
where the order sought to be varied is a machinery or consequential
provision and not a substantive provision, it can be varied. Thus, we do
not accept that this supports the reasoning of Fowler J in Martin &
Harris (No. 2).
In any event, for some inexplicable reason, the applicant does not
promote the principle in Phillips v Walsh as providing a basis to vary the
relevant orders here.
For our part, we consider that it is certainly arguable that paragraph (6)
of the orders made on 7 February 2014 is a consequential provision and
thus can be varied.
This principle has long been recognised in the jurisprudence of this
court. For example, see McDonald & McDonald (1976) FLC 90-047,
Kaljo & Kaljo (1978) FLC 90-445, Molier & Van Wyk (1980) FLC 90911, Cranage & Cranage (1981) FLC 91-039, Ravasini & Ravasini
(1983) FLC 91-312, Bray & Bray (1988) FLC 91-968, Slapp & Slapp
(1989) FLC 92-022, and more recently Pera & Pera [2008] FamCAFC
87, Guinness & Guinness (No. 2) [2008] FamCAFC 100, I Ltd &
Chester and Ors [2010] FamCAFC 251 and Lenova & Lenova [2011]
FamCAFC 114.
The way the orders are structured here, it can be seen that paragraph (5)
is the substantive provision and paragraph (6) is the consequential or
machinery provision. Paragraph (5) provides for the estate of the
deceased husband to pay the costs of the applicant, and for those costs to
[2014] FamCAFC 213
Reasons Page 6
be assessed in default of agreement. Paragraph (6) then provides for
who the assessor should be. Further, left by itself, there would be no
issue or ambiguity about paragraph (5). For example, if the costs cannot
be agreed then they are to be assessed, and given that the Rules provide
for the assessment to be by a registrar, then that is what would happen.
The difficulty is said to be with paragraph (6), namely, unless the
assessment is undertaken by a registrar in accordance with the Rules
there can be no “costs assessment order” under r 19.32(3) to then be the
basis of any necessary enforcement proceedings.
Whether that is the case or not, and bearing in mind that this was an
order by consent of both parties, there are three possibilities that present
themselves. First, there can be agreement about the amount of the costs
to be paid and then paragraph (6) does not come into play. Secondly, in
the absence of agreement, an outside assessor nominated by the
applicant would determine the amount of the costs to be paid, and then if
the other party refused to pay that would squarely raise whether there is
a problem with the order. Thirdly, in the absence of agreement, the
applicant nominates under paragraph (6) a registrar of the court to assess
the costs, and thus there would be “a costs assessment order” made at
the end of that process.
Accordingly, given all that has happened here is that an outside assessor
has been requested to make an assessment, there is no basis for this
court to even consider a variation of paragraph (6) of the orders.
13.
As is apparent we find that this court is functus officio.
14.
We note that the respondent relied on the decision of Boland J exercising
appellate jurisdiction in Vance & Vance [2011] FamCAFC 17 in submitting that
this court is functus officio. However, the issue in that case was the application
of the “slip” rule, and there was no other exception to the general principle that
was argued. Accordingly, once her Honour found that the “slip” rule could not
be applied, her Honour necessarily found that the court was functus officio. Of
course, in this case there was no suggestion of the “slip” rule being applied, and
thus the only relevance of this decision, is that it confirms that unless an
exception applies, this court is unable to reopen an order that has been entered
into the court record.
15.
Finally, out of completeness we observe that it is unnecessary for us to deal
with the issue of an extension of time, or whether an itemised cost account has
been served. They do not go to whether this court is functus officio or not.
[2014] FamCAFC 213
Reasons Page 7
COSTS
16.
Although no order for costs was sought by the applicant in her application in an
appeal, in her written submissions filed on 3 July 2014 the applicant seeks the
following order:
That the Respondent pay the costs of the Applicant with regard to the
submissions made in opposition to the relief sought in the Application in
the sum agreed by the parties within twenty-one (21) days or as assessed.
17.
We will treat this application as an oral application for costs and we proceed on
the basis that the respondent opposes that application. We also note that no
application for costs was made by the respondent in the response to an
application in an appeal.
18.
Given that we propose to dismiss the application in an appeal, there is no basis
for costs to be awarded to the applicant, and although the respondent has been
successful, the respondent has not sought costs, and in any event we do not
consider it appropriate for an order for costs to be made in the respondent’s
favour. Accordingly, there will be no order as to costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the
reasons for judgment of the Honourable Full Court (May, Strickland and AinslieWallacce JJ) delivered on 6 November 2014.
Associate:
Date:
6 November 2014
[2014] FamCAFC 213
Reasons Page 8

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