Whittaker v Child Support Registrar [2000] FCA 1899

FEDERAL COURT OF AUSTRALIA

Whittaker v Child Support Registrar [2000] FCA 1899

MARK ALAN WHITTAKER v CHILD SUPPORT REGISTRAR and DONNA RENNIE WHITTAKER

Q 79 OF 2000 DRUMMOND J 22 DECEMBER 2000 BRISBANE (VIA VIDEO LINK TO CAIRNS)

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 79 OF 2000

BETWEEN: MARK ALAN WHITTAKER

APPLICANT

AND: CHILD SUPPORT REGISTRAR

FIRST RESPONDENT

DONNA RENNIE WHITTAKER

SECOND RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 22 DECEMBER 2000

WHERE MADE: BRISBANE (VIA VIDEO LINK TO CAIRNS)

THE COURT ORDERS THAT:

1. The applicant pay the respondent's costs of and incidental to the proceedings, including reserved costs, save only for the respondent's costs incurred subsequent to attending to receive judgment on 30 November 2000.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 79 OF 2000

BETWEEN: MARK ALAN WHITTAKER

APPLICANT

AND: CHILD SUPPORT REGISTRAR

FIRST RESPONDENT

DONNA RENNIE WHITTAKER

SECOND RESPONDENT

JUDGE: DRUMMOND J

DATE: 22 DECEMBER 2000

PLACE: BRISBANE (VIA VIDEO LINK TO CAIRNS)

REASONS FOR JUDGMENT

1 On 30 November last, in a reserved decision, I dismissed the applicant's application for prerogative writs directed to the Child Support Registrar. Though instructed to ask that the question of costs be adjourned, the solicitor who then appeared for the Registrar failed to do that. The Registrar now seeks costs. The order dismissing the application has not been perfected and the Court thus has an extensive discretionary power to make a costs order now, quite apart from that conferred by the "slip rule", O 35 r 7(3) the Federal Court Rules. 2 There is no suggestion in the applicant's detailed written submissions on costs that he has suffered prejudice due to this oversight on the part of the Registrar's solicitor. The applicant relies on what I said at par [5] of the judgment to the effect that there is a public interest in settling the question of the authority of the Parliament to confer on the Registrar the decisional authority which the applicant questioned in the proceedings before me; he goes on to submit that for that reason costs should not be ordered against him despite the general rule that costs ordinarily follow the event. 3 The ambit of the traditionally worded general discretionary power conferred on courts to award costs, of which s 43(2) the Federal Court of Australia Act 1976 (Cth) is an example, has recently been considered by the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72. The High Court, by a majority, restored the decision of the trial judge to make no order as to costs. This decision, and the trial judgment, which is reported as Oshlack v Richmond River Shire Council and Iron Gates Developments Pty Ltd (Judgment on Costs) (1994) 82 LGERA 236, were relied on by the applicant. Gaudron and Gummow JJ, at 84, said of the argument put to them that "public interest litigation" raised special considerations in relation to the award of costs: