Abe & Hou
[2023] FedCFamC1F 716
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Abe & Hou [2023] FedCFamC1F 716
File number(s): SYC 6019 of 2019 Judgment of: MCCLELLAND DCJ Date of judgment: 22 August 2023 Catchwords: FAMILY LAW – PROPERTY – Application to set aside consent orders pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the applicants have failed to appear on multiple occasions – Application does not particularise an arguable cause of action with reference to s 79A – Applicants failed to file points of claim as directed – No reasonable prospects of success – Application summarily dismissed – Applicants to pay the costs of the first respondent in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79A, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.22, 12.17, 15.19
Cases cited: Byrnes v Brisconnections Management Company Limited (No 2) [2009] FCA 1432
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; [1996] HCA 14
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
Ritter & Ritter (2020) FLC 93-957; [2020] FamCAFC 86
Stoian & Fiening (Costs) (2014) FamCA 944
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 22 August 2023 Place: Sydney The Applicants: Litigants in person Counsel for the First Respondent: Mr Bateman Solicitor for the First Respondent: H & H Lawyers The Second Respondent: Litigant in person ORDERS
SYC 6019 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MA
First Applicant
MR DU
Second Applicant
AND: MS ABE
First Respondent
MR HOU
Second Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
22 AUGUST 2023
THE COURT ORDERS THAT:
1.The applicants’ Initiating Application filed 23 March 2022 is summarily dismissed.
2.Within 28 days of the date of these orders, the applicants pay the costs of the first respondent in respect of and incidental to the Initiating Application filed 23 March 2022 in the fixed sum of $17,440.98.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abe & Hou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTMCCLELLAND DCJ:
This matter has been listed today for the purpose of considering an application by Ms Abe, who is the first respondent, to strike out the application filed by Ms Ma and Mr Du for orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”). Those orders are sought in respect to consent orders made by the parties on 19 August 2021.
BACKGROUND
The relevant events in this matter have been helpfully summarised in the first respondent’s Case Outline, which contains the following chronology:
Date Event December 2019 First Respondent commences the original proceedings. April 2020 The Applicants file application to be joined to the proceedings. 19 August 2021 Final Consent Orders made. 23 November 2021 First Respondent files Enforcement Application, due to the Second Respondent refusing to co-operate with the sale of real estate 23 March 2022 Applicants file Initiating Application seeking to set aside the Final Consent Orders. 2 June 2022 Orders. Enforcement orders made in favour of the First Respondent, as well as costs orders. 23 June 2022 Orders. Second Respondent’s Stay Application dismissed. Costs awarded in favour of the First Respondent. 2 September 2022 Applicants send an email to the Associate of the Judicial Registrar, stating, amongst other things:
“We have heard Australia declared itself as a country respecting the fairness and justice in term of the law practice. But unfortunate it is not the case in reality. So why we still pursue our right in the court case in Australian?”
“Therefore, we are considering to withdrew the application in court proceeding as we have lose the confidence with the law system, for the injustice court order made, and for the misconduct made by the lawyers who bribed by the other side and to given false position of ours to the court to benefit to the other side.”
“Meanwhile, because of the fire wall in [Country B] restricting the internet connection to overseas, it is not easy for us to connect to the Microsoft team from [Country B].”
“As soon as we make decision, we will filed all relevant document to inform your court.”2 September 2022 Orders. The Applicants failed to appear. Matter adjourned to permit the Applicants to file a Notice of Discontinuance. 30 September 2022 The Applicants send an email to the Associate of the Judicial Registrar, stating, amongst other things:
“As we told the court on 1st Sep that we could not connect to the Microsoft Team due to the fire wall in [Country B] stopping us to do so. So we could not join today’s procedural hearing.”
“Us lost our confidence to the fairness and justice of Australia court totally. Therefore, what is the point to retain any lawyer to pursue the justice in Australia court which has no sense of principle of law?”
“If you are referring to Judge for consideration for the dismissal of the initiating application filed on 23 Mar 2022, would you please forward this email to the Judge as well?”30 September 2022 Orders. The Applicants failed to appear. Matter listed for Compliance and Readiness Hearing. Directions for the filing of material. 29 November 2022 First respondent filed application seeking costs. 17 February 2023 Orders. Applicants direct to file and serve points of claim by 17 March 2023. 26 April 2023 Orders. Matter listed for the First Respondent’s Application for Summary Dismissal, as well as costs. CONSIDERATION
The matter was called outside the body of the Court three times at or about 10.00 am this morning and again shortly thereafter. There was no appearance initially, however at about 10 minutes past 10.00 am, Mr Hou, the second respondent to the current application and the husband of Ms Abe, appeared. Also appearing was Ms Kong. Ms Kong has previously filed an affidavit indicating that she is the current de facto partner of Mr Hou.
There has been no appearance by the applicants, Ms Ma and Mr Du, although, Ms Kong advised the Court that she is appearing as the representative of the applicants. Ms Kong provided no evidence to the Court that she has been authorised by the applicants to appear on their behalf, nor has there been any application to the Court by the applicants to appear electronically. Further, Ms Kong has made no application to appear as a McKenzie friend on behalf of either of the applicants.
The first respondent Ms Abe, through her counsel Mr Bateman, understandably objected to Ms Kong being given a right of audience before the Court, however in the particular circumstances of the case, I permitted Ms Kong to make submissions assisted by an interpreter. Having provided Ms Kong with that opportunity, there is no evidence that satisfies me that she has, in actual fact, been authorised by the applicants to represent them in Court. In any event, neither of the applicants have been excused from their obligation to personally attend Court, either in physical presence or at least electronically pursuant to r 15.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
In circumstances where I am not satisfied, on the evidence presented to the Court, that the applicants’ interests are in fact being represented by Ms Kong, I find that both of the applicants have failed to appear before the Court pursuant to their obligations under r 15.15.
In those circumstances, r 15.19 provides that if the absent party is an applicant, the Court may dismiss the proceedings. In circumstances where I am satisfied that both of the applicants are absent parties to these proceedings and I am satisfied that they have been duly advised of these proceedings.
To avoid doubt, Ms Kong advised the Court that she is, in fact, the source of funds provided by the applicants to the first and second respondents and therefore has an interest in the proceedings. That assertion, however, was subsequently contradicted where Ms Kong, through her interpreter, advised the Court that she was seeking recovery of the funds on behalf of the applicants.
I appreciate that there may be a confusion in the translation that occurred by a very competent interpreter who has interpreted on behalf of Ms Kong. However, even if Ms Kong’s evidence from the bar table, which was objected to and therefore not admissible, had been accepted by the Court, it is to be noted that, by orders made on 19 August 2021, the application that had originally been filed by Ms Kong prior to the making of the consent orders had been discontinued (Order 19). Ms Kong is a signatory and a party to those consent orders. Ms Kong is not a party to the s 79A proceedings commenced by the applicants, nor has any application been made by Ms Kong to be joined as a party to those proceedings pursuant to r 3.07 of the Rules. Accordingly, I do not accept that Ms Kong is herself a party to these proceedings.
Accordingly, in circumstances where Ms Kong is not a party to these proceedings and there has been no appearance by the applicants, I dismiss the proceedings pursuant to r 15.19 as a result of the non-appearance of the applicants.
Additionally, I note that r 10.22 provides that if a party has not taken a step in a proceeding for six months, the Court may, of its own initiative, dismiss all or part of the proceedings.
I note that the last document filed by the applicants in the proceedings was an Amended Application for Final Orders filed 9 February 2023. I note that, in unsworn in evidence given from the bar table that was understandably objected to by Mr Bateman, Ms Kong has advised the Court that the applicants have attempted to file documents subsequent to 9 February 2023, however there is no admissible evidence before me that that has occurred.
In the circumstances, had it been necessary, I would have also dismissed the proceedings pursuant to r 10.22, however for reasons which I will subsequently explain, it has not been necessary for me to rely upon that rule in dismissing the proceedings.
The primary basis upon which I dismiss the proceedings is that neither the original s 79A application filed on 23 March 2022 nor the amended s 79A application filed on 9 February 2023 disclose, on their face, an arguable cause of action. This is in circumstances where the documents do not, on their face, refer to any specific provision of s 79A that would empower the Court to make orders in accordance with any of the relevant criteria set out in s 79A of the Act, which are as follows:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstances; or
(b)In the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)A person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d)In the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e)A proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage
That failure to set out a viable or arguable cause of action is in circumstances whereby, on 17 February 2023, I made the following order:
1.Within 28 days of the date of these orders, the applicants are to file and serve points of claim setting out:
a.The basis upon which they claim the property orders made on 19 August 2021 should be altered, by reference to the specific provisions of s 79A(1) of the Family Law Act 1975 (Cth) that they rely upon: and
b.Their contentions of fact and law which they assert support their application.
As I have indicated, no such points of claim have been filed by the applicants and, in those circumstances, pursuant to r 10.27, the Court is empowered to dismiss proceedings where a party is in default of the orders that have been made.
This is not a mere technicality. The filing of such points of claim was of fundamental importance because firstly, the applicants were required to advise the Court of the nature of their claim and secondly, the points of claim were required to afford procedural fairness to the respondents. Despite those orders specifically giving the applicants the opportunity to file points of claim and despite orders made on 26 April 2023 confirming the matter being set down for hearing of the strike out application today, the applicants have remained in default of the orders of 17 February 2023.
In those circumstances, I accede to the application by the respondent for the proceedings to be struck out. That is, the additional reason for the proceedings being dismissed is as a result of the applicants’ default in failing to comply with the orders of 17 February 2023 to file points of claim as required.
The third basis upon which I dismiss the proceedings is related to the second reason for dismissing the proceedings, and that is the original application filed on 23 March 2022 and the application filed on 9 February 2023 do not, as I have said, disclose on their face an arguable cause of action pursuant to s 79A of the Act. Accordingly, the third reason for dismissing the proceedings is that, in the absence of a viable cause of action being particularised despite the applicants being given the opportunity to do so, I am satisfied that the proceedings do not have reasonable prospects of success in accordance with the principles outlined in the Full Court decision of Ritter & Ritter (2020) FLC 93-957, referring in particular to Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 per Kirby J at 255–256, which has been helpfully referred to in the submissions by counsel for the first respondent.
Accordingly for all these reasons, the applicants’ Initiating Application filed on 23 March 2022 seeking orders pursuant to s 79A of the Act, as amended on 9 February 2023, is dismissed.
COSTS
An application for costs on indemnity basis has been made by the first respondent. The principles in respect to the award of costs on an indemnity basis have been summarised in Pascoe & Larsen (No 2) [2022] FedCFamC1A 126 at [21]–[23]. Essentially, in those paragraphs, I note that there may be circumstances of awarding costs in respect to matters before the Court despite the presumption set out in s 117(1) of the Act that each party should bear their own costs. The cases to which I will subsequently refer set out the relevant principles where it may be appropriate to order indemnity costs.
In Limousin & Limousin (Costs) (2007) 38 Fam LR 478, by reference to Kohan and Kohan (1993) FLC 92-340, it was nonetheless noted that the order of indemnity costs is still an exception to what would ordinarily be a costs order. In this matter, I am satisfied that it would have been appropriate for me to make an order for indemnity costs based on the provisions of s 117(2A)(c) of the Act in respect to the conduct of the proceedings. That includes the fact that the applicants have effectively disengaged from the proceedings, failed to file points of claim in accordance with directions that I have made and in circumstances where they have failed to clarify their position despite several opportunities to do so in appearances before the Court. However, I am prepared to give some latitude to the applicants in circumstances where English is not their first language and in circumstances where they are residents of Country B.
Nonetheless, I am satisfied that an order for costs in appropriate in respect to the costs thrown away by the failure of the applicants to engage in the proceedings, including interlocutory proceedings and mentions, those instances being set out in the chronology above at [3] of these reasons.
The additional reason why an order for costs is justified is that the applicants have been wholly unsuccessful in their application because the proceedings have been dismissed as lacking any reasonable prospects of success (s 117(2A)(e)).
Additionally, I have had regard to the provisions of s 117(2A)(d) which provides that a factor to consider in whether costs should be awarded is where the proceedings have been necessitated by the failure of a party to the proceedings to comply with orders of the Court. Specifically, as I have stated, these proceedings were necessitated by the applicants failing to comply with the orders of the Court made in February 2023, directing them to file and serve points of claim setting out the precise basis upon which they were pressing their application pursuant to s 79A of the Act.
Despite not making an order for indemnity costs, r 12.17 of the Rules sets out various methods of calculating costs, including making an order pursuant to r 12.17(1)(a) being an order fixing the amount of costs. In deciding to make an order fixing the costs recoverable, I have had regard to the useful assistance provided in the judgment of Kent J in Stoian & Fiening (Costs) (2014) FamCA 944 (“Stoian”) at [91]:
Commencing at [8] of his judgment Einstein J discussed the applicable principles in these terms:
8.As may be expected in what is likely the largest claim ever made in this country for a gross sum costs order, both parties took the court to the authorities which inform the principled exercise of the relevant discretion. Notwithstanding that some areas of difference arose concerning disparate parameters/appropriate emphases, in terms of the application of the appropriate principles, there were in the main no areas of serious disagreement.
9.For present purposes it seems convenient to commence with the recitation of the principles which inform the exercise of the discretion;
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation” (All ER page 265)];
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788];
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at [22];
v.the gross sum “can only be fixed broadly having regard to the information before the Court”: Beach Petroleum at 124;
[in Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enables fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that…is what the rule contemplates”.]
vi.nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119 at 120;
vii.in terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No. 2) (1995) 57 FCR 119, put the matter as follows, at [16]:
“On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court: Leary v Leary at 265…”
I further note that consistent with those principles, it has been determined that where a Court orders a party to pay costs, it may be appropriate for the court to fix a lump sum, as by doing so the Court can avoid further delay and inconvenience being required by a party to undertake steps necessary to tax a bill of costs: Byrnes v Brisconnections Management Company Limited (No 2) [2009] FCA 1432 at [51].
Accordingly and by way of summary, for the reasons which I have given, I am satisfied that it is appropriate to order the applicants to pay costs in a fixed sum. The case of Stoian requires me to be satisfied that in doing so, the fixed sum is logical, fair and reasonable. I have had regard to the schedule of costs provided by the first respondent, which is annexure A to the applicant’s Case Outline dated 14 August 2023, and I am satisfied that the costs have been appropriately itemised and appear to reflect the appropriate scale of costs. Accordingly, I make an order that the applicants pay the costs of the first respondent in the fixed sum of $17,440.98.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 31 August 2023
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