Seni ee (LIMITED DISTRIBUTION ONLY) IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 240 of :1985 ) . GENERAL DIVISION ) ) BETWEEN : G.M. (NORTH MELBOURNE) HOLDINGS PTY LTD Applicant and YOUNG KELLY PTY LTD, NOEL WILLIAM YOUNG and ALLAN KELLY Respondents COURT: Woodward J. DATE: 24 December 1986 PLACE: Melbourne REASONS FOR JUDGMENT This is an application pursuant to Ord 46 r.7(2) of the Federal Court Rules, which provides, "A person may apply to the Court ex parte for a direction to the Registrar that he do any act which he is bound or entitled to do and has refused to do". After hearing the solicitor making the application, having read the Registrar's Report and other ae ons before me, I made the order sought and ey as doing so. These are they. oo The Registrar's Report was in the following terms: "lL. In this matter I have refused to sign, seai and enter an order pursuant to Order 62 Rule 46(3) of the Federal Court Rules (The Rules). 2. The recitals to the proposed Order set out briefly the facts in the matter - copy of proposed order annexed. 3. The applicant has applied under Order 46, Rule 7(2) of the Rules for a direction to the Registrar that he sign, seal and enter the order. 4. I refused to act under Order 62, Rule 45(3) on the basis that under the rule it is a condition precedent to my acting that the taxation be completed and a sealed Certificate of Taxation has been issued. 5. In this matter only an interim Certificate of Taxation has been made - copy of this certificate is annexed. 6. Items in the Bill of Costs that remain in contention are the subject of a reconsideration by me as the taxing officer pursuant to Order 62 Rules 42, 43 and 44. The reconsideration has been set down for 22 December 1986. 7. Affidavits for the purpose of establishing service of the interim Certificate of Taxation on the first and second named respondents (The Respondents) and that costs remain unpaid have been filed. I am satisfied that the interim Certificate of Taxation has been served on the respondents and that the costs were unpaid after 14 days from the date of service of the interim Certificate of Taxation." The proposed order annexed was in these terms: "WHEREAS : (A) On the 2nd June, 1986 the Court ordered that' the first and second named respondents pay the applicant's costs of the action including reserved costs; (B) The applicant's bill of costs was taxed on 16th October, 1986; (C) The first and second named respondents by Notice of Motion filed on 30th October, 1986 applied to the Taxing Officer to reconsider his decision; (D) On 26th November, 1986 an Interim Certificate of Taxation was made by consent allowing the applicant costs of $41,365.22; (E) I am satisfied that service of the Interim Certificate of Taxation was effected on the first and second named respondents in accordance with the - rules of this Court; and (F) After 14 days from the date of service on the first and second named respondents of the Interim Certificate of Taxation, the $41,365.22 costs remain unpaid. THE COURT pursuant to Order 62 Rule 45(3) of the Federal Court Rules HEREBY ORDERS THAT: 1. The first and second named respondents pay the sum of $41,365.22 to the applicant. DATE ENTERED: 18 December 1986 DEPUTY DISTRICT REGISTRAR TAKE NOTICE that pursuant to Order 35 Rule 8 the amount herein bears interest at the rate of 15% from the date of pronouncement of this order." Order 62, rv.8(1), 38 and 45 of the Federal Court Rules provide: "8B. (1) Unless the Court or a Judge in a particular case otherwise orders, bills of costs and fees which - (a) are payable to barristers and solicitors entitled or admitted to practise in the Court in respect of business transacted by them in the Court or its registries; and (b) have been directed by a judgment or order to be taxed or under these Rules are liable to be taxed without express direction, shall be taxed allowed and certified by a Registrar who in these Rules is referred to as the taxing officer. 38. The taxing officer may, for the purpose of taxation of costs - (a) (b) (c) (d) {e) (f) 45. (1) officer summon and examine witnesses either orally or upon affidavit; administer oaths; direct or require the production of books, papers and documents; > issue subpoenas; make separate or interim certificates; require a party to be represented by a separate solicitor; and do such other acts and direct or take all such other steps as are directed by these Rules or by the Court or a Judge. On completion of taxation, the taxing shall issue a sealed certificate of taxation, with sufficient mumber 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. (4) Order 35, Interest calculated in accordance with rule 8 is payable from the date the order is pronounced." In my view the reference in r.38(e) to the making of interim certificates must at least be wide enough to cover' the present case, where costs were taxed, a number of items not being disputed by either party, anda certificate was given by consent to cover those items, while disputed items were left to be dealt with later. Rule 42 provides that the taxing officer shall not give a certificate (except with the consent of the parties) until 14 days after he has made his decision on taxation. This provides an opportunity for any party to apply, by notice of motion, for -the taxing officer to reconsider any decision which has been made. Rule 45 then provides for the taxing officer "on completion of taxation" to issue "a sealed certificate of taxation". If the costs have not been paid within 14 days of service of a copy of this certificate, the Registrar is required, on request, to draw up, sign, seal and enter an order for the sum shown in the certificate. The Deputy District Registrar was understandably concerned that he could only prepare and enter such an order "on completion of taxation". However I believe the clear power given by r.38 to issue interim certificates must carry with it the power to make and enter orders when the certificate is not acted upon within 14 days of service. Otherwise there would be little point in issuing an interim certificate. I think r.45 should be interpreted as if it read, "If, after 14 days from the date of service of the certificate of taxation (whether interim or final), the costs remain unpaid ....." The point is very much a matter of first impression, incapable of detailed exposition. I made an order directing the Deputy District Registrar to sign, seal and enter the order set out above. I certify that the five (5) preceding pages are a true and accurate copy of the Reasons for Judgment herein on The Hon Mr Justice Woodward for. Associate Dated: 24 December 1986 Solicitor for the Applicant: Mr G.T. Bigmore instructed by Messrs Mills Oakley and McKay