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PRACTICE AND PROCEDURE - application for leave to appeal from interlocutory judgment that requirements of O 62 r 46(3)(d) not be waived - whether judgment attended with sufficient doubt to warrant reconsideration by a Full Court - whether substantial injustice would result if leave were refused

Potier v Minister for Immigration & Multicultural & Indigenous Affairs [200

Potier v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 288 (19 November 2004)
Last Updated: 19 November 2004

FEDERAL COURT OF AUSTRALIA

Potier v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 288




PRACTICE AND PROCEDURE - application for leave to appeal from interlocutory judgment that requirements of O 62 r 46(3)(d) not be waived - whether judgment attended with sufficient doubt to warrant reconsideration by a Full Court - whether substantial injustice would result if leave were refused



Federal Court of Australia Act 1976 (Cth) ss 24(1A), 35A(5)
Federal Court Rules O 52 r 10, 62 rr 46, 46(1), 46(2), 46(3)(a), 46(3)(c), 46(3)(d), 46(4),
46 (6)





Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 cited

D�cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited

Dudzinski v Kellow (2000) FCA 740 cited

Hall v Nominal Defendant (1966) 117 CLR 423 cited

Licul v Corney (1976) 180 CLR 213 cited

Malouf v Malouf (1999) 86 FCR 134 cited

Mazukov v University of Tasmania [2004] FCAFC 159 cited



MALCOLM HUNTLEY POTIER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N852-856 OF 2004

RYAN, LEE AND MERKEL JJ
19 NOVEMBER 2004
PERTH (HEARD IN SYDNEY)


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N852-856 OF 2004


BETWEEN: MALCOLM HUNTLEY POTIER
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: RYAN, LEE AND MERKEL JJ
DATE OF ORDER: 19 NOVEMBER 2004
WHERE MADE: PERTH (HEARD IN SYDNEY)


THE COURT ORDERS THAT:

1. The application for leave to appeal be refused.
2. The applicant pay the respondent�s costs of the application.







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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N852-856 OF 2004


BETWEEN: MALCOLM HUNTLEY POTIER
APPLICANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: RYAN, LEE AND MERKEL JJ
DATE: 19 NOVEMBER 2004
PLACE: PERTH (HEARD IN SYDNEY)


REASONS FOR JUDGMENT


THE COURT:

1 On 4 May 2004 a Judge of this Court, Stone J, ordered that:

�The relief sought in the notice of motion filed [by the applicant] on 12 March 2004 be refused.�

2 The relief sought in the motion read as follows:

�1. That the assessment of costs completed on 14 January 2004 be set aside.


2. That a hearing be convened to consider in detail the applicant�s detailed representations made to the respondent�s bill of costs.�

3 The applicant and his daughter were named as applicants in the motion. The motion was expressed to relate to five proceedings in the Court commenced by the applicant against the respondent, in which orders were made that the applicant pay the respondent�s costs.

4 Her Honour noted that the applicant�s daughter was not subject to any of the costs orders referred to in the motion and, therefore, had no interest in the relief sought. Accordingly her Honour made an order under O 6 r 9 of the Federal Court Rules ("the Rules") that the daughter be removed as a party to the motion. It is plain that her Honour�s order was correct.

5 Five bills of costs were prepared by the respondent and presented for taxation. The total costs claimed in the bills amounted to $27,536.42. Pursuant to O 62 r 46(3)(a) of the Rules the taxing officer made estimates of the approximate amounts for which certificates of taxation would be likely to issue if each bill were taxed. The total of the estimates was $25,526.00. Pursuant to O 62 r 46(3)(b) the Registrar notified the applicant of the taxing officer�s estimates. The applicant sought to file notices of objection thereto. The applicant claimed to be impecunious and applied to the Registrar for an order releasing the applicant from the obligation to pay into Court the amount of security directed to be paid by O 62 r 46(3)(d).

6 The proceeding before her Honour appears to have been conducted as the hearing of an application under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) ("the Act") for review of a decision of the Registrar made on 26 November 2003 that the requirement of O 62 r 46(3)(d), namely, that the applicant pay into Court a sum of $1,250 as security for the taxation of a bill of costs, not be waived. Although her Honour�s reasons for judgment stated that the decision of the Registrar had not been shown to be wrong, the totality of the reasons show that her Honour considered afresh whether she should exercise the power to release the applicant from compliance with the Rule and declined to order that payment of the prescribed security be waived. (See: Mazukov v University of Tasmania [2004] FCAFC 159 at [21]-[26]).

7 It is appropriate to set out O 62 r 46 in full:

�46.(1) Notwithstanding anything in this Order, the Registrar shall have a discretion to apply the provisions or a provision of this rule, and may for that purpose decline to give an appointment to tax a bill on its being filed, and may require the party who filed the bill to lodge any documents in the possession or power of that party.
(2) If the Registrar decides to apply this rule, unless the Registrar directs that action be taken under subrule (4) or (6), the bill must be assessed in accordance with subrule (3).
(2A) If a bill is to be assessed in accordance with subrule (3):
(a) the Registrar must endorse the bill and each copy of it with the date when the taxing officer is to make an estimate and return the bill and copies to the party filing the bill; and

(b) the party filing the bill must serve a copy of the bill and the documents mentioned in subrule 40(2), on each other party to the assessment at least 7 days before the date endorsed on the bill.

(3)(a) A taxing officer may, in the absence of the parties and 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) The Registrar must not accept a notice of objection for filing unless the party filing the notice pays into the Litigants� Fund an amount of $1250 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.

(4)(a) Upon the direction of the Registrar under subrule (2) or paragraph (e) of subrule (3), a taxing officer may, in the absence of the parties, provisionally tax the bill, noting legibly upon it in ink all amounts provisionally taxed off.
(b) The Registrar will serve a photocopy of the bill so provisionally taxed on each party interested.
(c) Unless within 21 days of receipt of a photocopy of the provisionally taxed bill, a party interested files and serves on each other party a notice requiring a full taxation, there shall be no further taxation and the amount at which the bill was provisionally taxed shall be deemed to be the amount for which a certificate of taxation may issue.
(d) A notice requiring a full taxation shall:

(i) set out a complete list of each item or part of an item in the bill to the treatment of which upon the provisional taxation the party filing the notice objects; and
(ii) specify the nature and grounds of objection and the extent to which it is contended each item or part of an item should have been allowed or disallowed as the case may be.
(e) Within 21 days of service of a notice under paragraph (c), a party served may file and serve on each other party a notice containing corresponding details of any item or part of an item to the treatment of which upon the provisional taxation that party objects and of the nature and grounds of such objections.
(f) On taxation of the bill and subject to a discretion of the taxing officer exercisable in exceptional circumstances only, all items shall be taxed as they were provisionally taxed to the extent that they are not referred to in a notice filed pursuant to paragraph (c) or (e) and no ground shall be relied on which is not specifically set out in such a notice.

(4A) If a notice of objection is filed under paragraph 46(3)(c), or a notice requiring a full taxation is filed under paragraph 46(4)(c), the party filing the notice shall bear the costs of taxation of all parties from the date of filing the notice unless, on taxation, there is obtained in that party�s favour a variation of at least 15% of the estimate of taxed costs or of the amount provisionally taxed.
(5) Each District Registrar may produce figures for the guidance of parties and solicitors in relation to costs estimated or taxed in the district registry.
(6) At any time after the making of an order for costs, and before the issue of a certificate of taxation in accordance with an estimate or provisional taxation or full taxation:
(a) the Registrar may order (either on the application of a party or of the Registrar�s own motion) that the parties attend before a designated Registrar or other designated officer in confidential conference with a view to:

(i) reaching a mediated resolution of the amount for which a certificate of taxation should issue; or

(ii) clarifying the real issues in dispute; and

(b) if the Registrar makes an order under paragraph (a) � each party must file and serve on the other parties, at least 7 days before the date of the conference, a brief summary of the issues in dispute and the contentions to be raised in respect of the issues.

(6A) If:
(a) the party who filed the notice of objection withdraws the notice of objection before the taxation or provisional taxation is completed; or

(b) 21 days have passed after notification by the Registrar to the parties of a completed taxation or provisional taxation under this rule and no party has objected to that taxation;

the Registrar, having regard to the liability of any party to pay the costs of the taxation under this rule, must:
(c) determine how the amount paid under paragraph (3)(d) as security for the costs of taxation is to be distributed or refunded to the parties; and

(d) direct that payment be made out of Court accordingly.
(7) In this rule a reference to a Registrar extends only to persons occupying the office or for the time being performing the duties of Registrar or District Registrar of the Court.�

8 The applicant, who appeared on his own behalf before her Honour and before this Court, purported to file a notice of appeal from her Honour�s judgment notwithstanding that it appears that the judgment appealed from was of an interlocutory nature. Pursuant to s 24(1A) of the Act an appeal from an interlocutory judgment is incompetent unless leave to appeal has been granted by the Court.

9 The question whether a judgment is final or interlocutory may be difficult to determine in some circumstances. Decisions of the High Court that have revisited this question from time to time state that a judgment is interlocutory if it does not finally dispose of an appellant�s rights. (See: Hall v Nominal Defendant (1966) 117 CLR 423 per Taylor J at 439-40, Windeyer J at 444-45; Licul v Corney (1976) 180 CLR 213 per Barwick CJ at 219-220, Gibbs J at 225; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 per Gibbs J at 248; see also: Malouf v Malouf (1999) 86 FCR 134).

10 In no sense can it be said that the judgment of her Honour finally determined the applicant�s rights in respect of the issue of costs. Certainly if, as a result of the Registrar�s decision, the applicant was either unable or unwilling to pay the prescribed security to enable him to file objections to the estimates, and if the respondent filed no objections, the estimates may have become deemed taxed costs pursuant to O 62 r 46(3)(c). But that was not necessarily so. Given the broad terms of the discretion provided in the Registrar by O 62 r 46(1), and the further discretion provided in O 62 r 46(2), the Registrar may have decided to discontinue the application of O 62 r 46(3) and have directed the taxing officer to conduct a provisional taxation under O 62 r 46(4). It was open to the applicant to make submissions to the Registrar as to why the Registrar should make such a direction.

11 Similarly, pursuant to O 62 r 46(6) an application may have been made by the applicant to the Registrar for an order that the estimates, or deemed taxed costs, be referred to a mediation proceeding to obtain a mediated resolution of the amount for which a certificate of taxation should issue.

12 It follows that the refusal of the Registrar to exercise a discretion to waive the requirement that the applicant provide security for the costs of a taxation under O 62 r 46(3)(d) was not an order which, of itself, finally determined the rights of the applicant.

13 Accordingly the Court treated the "notice of appeal" filed by the applicant as an application for leave to appeal, notwithstanding that it was not a motion on notice filed within the time prescribed in O 52 r 10.

14 At the outset it may be said that for leave to appeal to be granted in respect of an interlocutory judgment on an issue of costs, it must be patently clear there is reason to doubt the correctness of the judgment sought to be appealed from and that reconsideration by a Full Court of the issue determined below is warranted.

15 Further it must be demonstrated that, assuming the decision below to be wrong, substantial injustice would result if leave to appeal were refused. (See: D�cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 per Sheppard, Burchett and Heerey JJ at 399).

16 In the instant matter it is not apparent that the correctness of her Honour�s judgment is open to doubt and no issue of general importance arises from the decision that otherwise may warrant leave to appeal to a Full Court being granted. In addition, it has not been shown by the applicant that there is any risk that the applicant may suffer substantial injustice if leave to appeal were refused. The material presented by the applicant does not suggest that if the applicant�s notices of objection to the estimates had been filed and the bills of costs taxed, the applicant may have shown that the estimates exceeded the taxed costs in a significant degree. It is to be noted that O 62 r 46(4A) provides that a party who files a notice of objection to an estimate is liable for the costs of the taxation if the estimate is not varied in that party�s favour by at leat 15%.

17 In the reasons for decision provided by the Registrar it was stated that although an issue sought to be raised by the applicant may have been an appropriate issue to be determined on taxation, that circumstance did not provide sufficient reason to waive the requirement that security be provided for the costs of the taxation. That conclusion must follow if the Registrar was not persuaded that determination on taxation of the issues sought to be raised in the objection could lead to any significant reduction of an estimate. Of course, if it were accepted that substantial issues for determination on taxation had not been taken into account in the formation of the estimates, that fact, and the impecuniosity of a party seeking to raise such issues, would be relevant considerations in determining whether, in all the circumstances, it would be appropriate to waive compliance with the terms of O 62 r 46(3)(d). We do not take Dudzinski v Kellow (2000) FCA 740 to express a contrary view when (at [37]) it states that �any reasons proposed for waiving such a payment would have to be very compelling�. That observation is an acknowledgment that although the discretion to waive compliance with the Rules may be broad, it is unlikely that the power will be exercised unless sufficient reason to do so is demonstrated. (See: Mazukov at [28]).

18 We are satisfied that her Honour considered all relevant matters and had regard to the correct question in determining that the discretion to waive compliance with O 62 r 46(3)(d) should not be exercised.

19 The applicant has not raised any doubt as to the correctness of her Honour�s decision and the interlocutory judgment of her Honour is not one from which leave to appeal should be granted. The applicant�s application will be refused with costs.


I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.


Associate:

Dated: 19 November 2004



The applicant appeared in person.



Counsel for the Respondent: M Wigney



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 5 November 2004



Date of filing of further submissions: 12 November 2004



Date of Judgment: 19 November 2004
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