De L v Director-General, Department of Community Services (NSW) [1997] HCA 14

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ De L v Director-General, Department of Community Services (NSW) [1997] HCA 14

ORDER

1. Motion dismissed.

2. The respondent's costs to be paid by the Attorney-General.

Cur adv vult

9 April 1997 Brennan CJ and Dawson J.

In allowing the appeal by Mrs De L against the Director-General on 10 October 1996, this Court made an order that the Director-General pay Mrs De L's costs. [1] The Director-General was a State Central Authority who had instituted proceedings in the Family Court of Australia against Mrs De L for an order for the return to Virginia in the United States of the two children of her marriage to Mr De L. Those proceedings were instituted under the Family Law (Child Abduction Convention) Regulations (Cth). The Regulations were made in exercise of the power conferred by s 111B(1) of the Family Law Act 1975 Cth. The Director-General's application was dismissed at first instance but an appeal to the Full Court of the Family Court succeeded. [2] Special leave to appeal to this Court was granted and the Director-General appeared to support the orders made in the Full Court.

1. De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640. 2. Director-General, Department of Community Services v De L [1996] FLC ¶92-674.

After the order of this Court was pronounced but before it was formally drawn up, the Director-General filed a notice of motion seeking an order vacating the costs order made against him. He relied on reg 7 which provides:

A person who holds office as the Commonwealth Central Authority, who is appointed to act as that Authority or who, being a State Central Authority, exercises the powers and performs the functions of that office shall not be made subject to any order to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority. If, on its true construction, reg 7 denies this Court the power to make an order and if, so construed, reg 7 is within the regulation-making power conferred by s 111B(1), it would be necessary to revoke the costs order against the Director-General. [3] 1. State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29; Gould v Vaggelas (1985) 157 CLR 215.