Ajam and Asfour & Anor

[2019] FamCA 401

FAMILY COURT OF AUSTRALIA

AJAM & ASFOUR AND ANOR [2019] FamCA 401

FAMILY LAW – PRACTICE AND PROCEDURE – Consideration of rule 11.02 and 11.03 of the Family Law Rules 2004 – An Application for “special costs” – Orders made permitting the applicant to file an Amended Application and pay the Respondents’ costs in accordance with Schedule 3 of the Rules – Prior to the registry accepting the filing of Amended Application – Failure to comply results in a self-executing order to dismiss the Application.

Family Law Act 1975 (Cth) ss.117
Family Law Rules 2004 (Cth) rr.11.02, 11.03

Sfakianakis and Sfakianakis [2019] FamCAFC 54
In the Marriage of  I (No 2) (1995) FLC 92-625
Akbar & Mali and Anor [2015] FamCAFC 244

APPLICANT: Ms Ajam

FIRST RESPONDENT: Mr Asfour

SECOND RESPONDENT: B Pty Ltd

FILE NUMBER: MLC 5895 of 2016

DATE DELIVERED:  2 July 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Williams J

HEARING DATE: 30 & 31 May 2019

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENTS: Mr Glick of Queen's Counsel with Mr Dunlop of Counsel

SOLICITOR FOR THE RESPONDENTS: SBA Law

Orders

1. The applicant pay the respondent’s costs of and incidental to the proceedings fixed in the sum of $ 13,936 and such sum to be paid on or before 4.00 PM on 2 September 2019.

2. Subject to compliance with paragraph 1 hereof, the applicant be at liberty to file and serve an Amended Application setting out precisely the orders she seeks on a final basis, such application to be filed on or before 2 September 2019, and such application not to be filed or accepted in the registry, unless the applicant has paid the costs referred to in paragraph 1;

3. If the applicant fails to file an Amended Application as referred to in paragraph 2, then her Initiating Application filed 23 January 2018 is dismissed and removed from the pending cases list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ajam & Asfour has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5895 of 2016

Ms Ajam

Applicant

And

Mr Asfour & B Pty Ltd

Respondents

REASONS FOR JUDGMENT

INTRODUCTION

1. On 8 March 2019, I made orders listing the matter for a two-day trial commencing 30 May 2019. The applicant failed to comply with procedural orders made on 8 March 2019.

2. On 30 May 2019, the first day of the trial, the applicant made an oral application to be granted a further period of time to comply with the procedural orders and another trial date.

3. The respondents opposed the application and sought orders that the applicant’s application should be dismissed, the applicant pay the respondent’s costs, and that such costs be paid prior to allowing the applicant to file any further Initiating Application.

BACKGROUND

1. On 28 June 2016, the applicant filed an Initiating Application in the Federal Circuit Court of Australia seeking, inter-alia, final orders for property settlement and spousal maintenance.  She asserted a claim arose from a de facto relationship between her and the respondent.  The respondent denied that the parties had been in a de facto relationship.

2. On 16 August 2016, Judge Riley made orders fixing the application for final hearing in November 2016.

3. On 20 October 2016, the matter was re-listed before Judge Riley and on that date the matter was transferred to the Family Court, as Counsel for the parties expected the hearing to exceed five days.

4. On 29 May 2017, consent minutes were made by Registrar Field as follows:

   a)the Initiating Application of the applicant filed 28 June 2016 be dismissed;

   b)the matter be otherwise removed from the pending cases list awaiting determination.

5. The orders included  notations as follows:

   A. The parties have reached a confidential settlement outside of the family court system.

   B. The respondent denies that the parties were in a de facto relationship as defined by the Family Law Act 1975 and therefore denies that the Family Court has jurisdiction to determine the dispute.

   C. The applicant maintains that the parties were in a genuine de facto relationship however has agreed to a settlement on a commercial basis, to avoid the expense and stress of proceeding to a contested hearing, having had the benefit of legal advice about the nature and effect of the obligations and benefits flowing from the settlement and having agreed to settle feely, (sic) voluntarily and without pressure from any person.

6. On 23 January 2018, the applicant filed another Initiating Application against the respondent, and a company of the respondent, B Pty Ltd. 

7. The final orders sought by the applicant were as follows:

   i)A declaration that a de facto relationship existed between the first name respondent and the applicant from on or about 24 October 2011 until 21 May 2016, but in any event for a period in excess of two years, the parties during that period being ordinarily resident in the state of Victoria, the participating jurisdiction;

   ii)The agreement entered into by the parties in May 2017 is not a binding financial agreement and in any event be set aside;

   iii)That the consent order made 29 May 2017, be discharged;

   iv)That the first named respondent pay the applicant for her maintenance the sum of $1000 per week, the first payment to be made 1 January 2018;

   v)That pursuant to s.90SM of the Family Law Act, the first name respondent pay to the applicant by way of final property settlement the sum of $2 million;

   vi)Such other orders as the court deems fit.

1. On 17 April 2018, the parties attended a Case Assessment Conference before Registrar Jenkins. Procedural orders were made on that date including adjourning the matter to a telephone mention on 6 June 2018.

2. On 22 June 2018, further procedural orders were made, including requiring the applicant to file and serve any further affidavits she intended to rely upon by 13 July 2018.  The matter was then adjourned to 3 August 2018.

3. On 3 August 2018, orders were made inter-alia, requiring the applicant to file and serve any further affidavits by 17 August 2018, and was otherwise adjourned to 31 August 2018 for directions.

4. On 31 August 2018, orders were made by the registrar adding the matter to the list of cases awaiting allocation to a judicial docket.

5. On 29 February 2019, procedural orders were made by me providing for the applicant to file and serve by 4.00 PM on 13 March 2019 an Amended Application setting out with precision the orders to be sought at trial.

6. On 8 March 2019, further procedural orders were made by me, including:

   i)the journey of the matter for final hearing on 30 May 2019 at 10.00am;

   ii)providing for the applicant to file and serve, within 28 days, an Amended Application setting out with precision the orders to be sought and affidavits of evidence in chief of all witnesses including the applicant, relied upon by her;

   iii)providing for the applicant to pay to sitting down and trial fees 28 days from the date of these orders.

7. On 8 March 2019, the applicant appeared in person and Mr Glick QC appeared on behalf of the respondents.

8. On 13 March 2019, the parties were notified that I considered the matter required a further mention on 18 March 2019. The court sent a notice of listing via email to the applicant on 13 March 2019, advising her of the listing on 18 March 2019. The purpose of the listing was to ensure the applicant understood the legal argument she was required to address in her amended application and affidavit.

9. On 18 March 2019, the applicant did not appear. She was called at 10.35am, and an attempt was made to telephone her on the mobile number which was on the court record.

10. Following the mention on 18 March 2019, the respondents’ solicitors forwarded an email and letter to the applicant. The email was forwarded to her email address and the letter was posted to her residential address.

11. The applicant claims not to have received either the email nor the letter.

Applicant’s Submissions

1. The applicant submitted that notwithstanding her failure to comply with the procedural orders made 8 March 2019, she should be granted a further adjourned date for the hearing and procedural orders should be made enabling her to file all relevant material.

2. The applicant’s submissions why she failed to comply with the procedural orders of 8 March 2019 may be summarised as follows:

   i)she did not understand the orders made on 8 March 2019 and was unaware of the requirements to file documents;

   ii)the interpreter who was present at Court on 8 March 2019 was not competent and did not correctly interpret the orders made;

   iii)she did not receive a copy of the procedural orders on 8 March 2019, despite my usual practice to ensure that a parties receive a copy of procedural orders during the court hearing;

   iv)she did not receive various emails from the court, and in particular an email dated 13 March 2019, advising that the matter was listed for further mention on 18 March 2019, despite all court emails being forwarded to her correct email address;

   v)she did not receive an email from the respondent’s solicitors, which was forwarded on 22 March 2019, subsequent to the mention on 18 March 2019, despite the email being forwarded to her correct email address;

   vi)she did not receive a letter from the respondent’s solicitors dated 22 March 2019, which was forwarded to her subsequent to the mention on 18 March 2019;

   vii)she does not always take notice of emails which are  forwarded to her.

3. The applicant is now self-represented and as English is not her first language, she was assisted by an interpreter on both 8 March 2019 and 30 May 2019. She complained about the interpreter who attended on 8 March 2019, but did not make any complaints about the competency of the interpreter who assisted her on the latter date.

4. During the submissions of 30 May 2019 it seemed to me that the applicant had a grasp of English. On a number of occasions it appeared that she understood discussions in English prior to the interpreter translating to her.  Annexed to her affidavit sworn 30 August 2018, which was sworn without the assistance of an interpreter, is a copy of a report from D Group dated 9 August 2018. 

5. The report is by a clinical psychologist, Ms C.  There is no reference to the applicant being assisted by an interpreter during the interview.  The first sentence of the second paragraph of the report is as follows:

   “The client presented as a well-spoken, neatly groomed, polite young woman”

6. That sentence gives weight to my understanding that the applicant is in fact more proficient in English than she was prepared to admit.   

7. At the hearing on 30 May 2019, the applicant was afforded an opportunity to obtain legal advice after Senior Counsel for the respondent had completed his submissions. She was also afforded an opportunity to respond to those submissions, and indeed confirmed that she had received legal advice from the duty lawyer that day.

8. In response to those submissions, her only further submission was to reiterate that she did not understand what was required of her subsequent to the hearing on 8 March 2019 and she submitted that she could urgently provide an affidavit to the court.

9. In response to the cost submissions, she submitted that her current income was Newstart Allowance and she did not have any family members or friends who are able to lend her funds to pay any costs ordered.  She did not make any submissions as to the disposition of the funds she had received pursuant to the Deed of Settlement. 

Respondents’ Submissions

1. Senior Counsel for the respondents sought the following orders:

   a)the applicant’s application filed 23 January 2018 should be dismissed pursuant to r.11.02(2) of the Family Law Rules 2004;

   b)the applicant should pay the respondents’ costs on a “special costs basis” fixed at $29,400;

   c)the applicant should be prevented from filing any further application to discharge, set aside or review the final orders made by consent on 29 May 2017, until she complies with an order for costs.

2. The submissions of Senior Counsel for the respondents may be summarised as follows:

   a)because there has been no determination of the applicant’s application on its merits, dismissing the application will not prejudice the applicant, as there is no legal impediment to her commencing the case again and having it determined on its merits;

   b)the Initiating Application filed on 23 January 2018 sought five substantive orders, including at paragraph 3 of the final orders sought of the application that  ‘the Consent Order made 29 May 2017, be discharged.’  Despite seeking such relief the applicant has never filed either an Amended Application or affidavit setting out why the consent order made in May 2017 should be discharged, set aside or rejected;

   c)Order 2 of the orders made 8 March 2019 enabled the applicant to file and serve documents setting out with precision the orders sought. She was afforded 28 days by the court to do so, despite her submissions that she only required two days to file the Amended Application and any further affidavit on which she sought to rely;

   d)the application filed 23 January 2018 is not drafted in a way which would be appropriate to proceed and the applicant has not chosen to amend the application to enable it to be determined on its merits;

   e)it is important to consider the context of the application filed 23 January 2018, namely:

   i)in May 2017 the applicant received $150,000 together with a further $20,000 for payment of legal fees, pursuant to the Deed of Settlement which is annexed to her affidavit of 18 January 2018 and agreed to vacate the respondent’s property in which she had previously resided;

   ii)in Supreme Court proceedings in 2017, which were commenced by the respondent, he sought a writ for possession for his property in which the respondent was living, and in the context of costs argument, the applicant did not disclose what had happened with the money which had been paid to her;

   iii)furthermore, in the context of the  Supreme Court proceedings, Counsel for the applicant provided an explanations why she alleged the terms of the Deed of Settlement were not binding, which was that she thought the payment was compensation for an alleged assault;

   f)given the assertions made in the Supreme Court proceedings, if the applicant wishes to set aside the consent order made by the registrar, she should start again and set out her case so that the court and the respondent know exactly what is being alleged;

   g)the applicant, in this application, has put self-contradictory statements about the events of 8 March 2019, including:

   i)on 8 March 2019, whilst visiting the duty lawyer a copy of the procedural orders was translated to her via the telephone interpreter;

   ii)she did not receive a copy of the orders on 8 March 2019;

   iii)her  statements about receipt of selective emails from the court, despite all emails being forwarded to the one address;

   h)because of her conduct during the current application, it is appropriate to make an order for indemnity costs, although such an order is not sought by the respondent;

   i)rather, the respondent seeks an order for special costs in accordance with the Full Court decision of Sfakianakis & Sfakianakis [2019]FamCA 54.

Relevant Legal Principles

Dismissal of the Application

1. Rule 11.02 of the Family Law Rules 2004 (“the Rules”) sets out the orders a court may make in the event a party does not comply with a procedural order. The rule provides as follows:

   11.02  Failure to comply with a legislative provision or order

   (1) If a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect.

   Note: A defaulter may apply to the court for relief from this rule (see rule 11.03).

   (2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (a)  dismiss all or part of the case;

   (b)  set aside a step taken or an order made;

   (c)  determine the case as if it were undefended;

   (d)  make any of the orders mentioned in rule 11.01;

   (e)  order costs;

   (f)  prohibit the party from taking a further step in the case until the occurrence of a specified event; or

   (g) make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

   Note:         This list does not limit the powers of the court. It is an expectation that a non‑defaulting party will minimise any loss.

2. Rule 11.03 of the Rules sets out the factors for consideration in determining whether relief from the provisions of Rule 11.02 should be granted.

3. Rule 11.03 provides as follows:

   11.03 Relief from orders

   (1)  A party may apply for relief from:

   (a)  the effect of subrule 11.02(1); or

   (b)  an order under subrule 11.02(2).

   (2)  In determining an application under subrule (1), the court may consider:

   (a)  whether there is a good reason for the non‑compliance;

   (b)  the extent to which the party has complied with orders, legislative provisions and the pre‑action procedures;

   (c)  whether the non‑compliance was caused by the party or the party’s lawyer;

   (d)  the impact of the non‑compliance on the management of the case;

   (e)  the effect of non‑compliance on each other party;

   (f)  costs;

   (g)  whether the applicant should be stayed from taking any further steps in the case until the costs are paid; and

   (h)  if the application is for relief from the effect of subrule 11.02(1)—whether all parties consent to the step being taken after the specified time.

   Note 1:     This list does not limit the powers of the court. See also subrule 1.12(3).

   Note 2:     A party may make an application under this rule by filing an Application in a Case or, with the court’s permission, orally at a court event.

4. At paragraphs 29 and 34 of Akbar & Mali and Anor [2015] FamCAFC 244, Strickland J said:

   [29]  Of course, when determining the consequences of non-compliance regard must also be had to the main purpose of the rules, which is to be found at r 1.04. That rule provides:

   The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

   [34]  Inter alia, the factors set out in r 11.03(2) are designed to ensure that a party would not suffer unfair consequences of non-compliance with a procedural obligation if the non-compliance was caused by that party’s lawyer, where there is a good explanation for the breach, or the other parties agree the party should be excused. In other words, the scheme of this sub rule is to ensure that these rules do not operate as instruments of injustice and there is a just and proportionate response to any breach.

Costs

1. Section 117 of the Family Law Act 1975 (Cth) regulates costs in proceedings pursuant to the Act. Section 117(1) of the Act states that the ordinary position in such proceedings is that each party is to meet his or her own costs. Section 117(2) of the Act enables the court, when it is of the opinion that circumstances justify doing so, to make orders as to costs as it considers just.

2. Section 117(2A) sets out the factors which are to be taken into consideration when making a costs order.

   117  Costs

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)  such other matters as the court considers relevant.

1. The Full Court in Sfakianakis (supra) at paragraph 10 said as follows:

   [10]  It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs … as the court considers just” permit the Court to fashion an order that is apt to the circumstances. One such well-known example is assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order. For convenience, in these reasons we shall refer to such orders as a “special costs order”.

Discussion

1. I will address each of the matters referred to in Rule 11.03(2).

Whether there is a good reason for the non-compliance

1. The applicant submitted that she:

   a)did not receive a copy of the procedural orders of 8 March 2019;

   b)the orders of 8 March 2019 were not translated to her;

   c)she was unaware of the timeframe for filing documents as prescribed by the orders of 8 March 2019.

2. During the course of the hearing I advised the parties that I would listen to the recording of the hearing of 8 March 2019, which I did. It is apparent from the recording transcript that:

   a)an interpreter assisted Ms Ajam from the commencement of the proceeding at 10:09 AM until 10:24 AM, and there was no complaint from her about the competency of the interpreter;

   b)she attempted to speak English, however was advised she should avail herself of the interpreter;

   c)prior to the adjournment at 10:24 AM, she was advised to seek legal assistance from the duty lawyer and indeed Senior Counsel for the respondents agreed to speak to the duty lawyer to discuss the problematic legal issues in the case;

   d)prior to the adjournment she was also advised that the matter would be allocated a date and a timetable for the hearing;

   e)when the matter resumed at 11:59 AM, Senior Counsel for the respondents confirmed that he had spoken to the duty lawyer who had in turn spoken to the applicant and provided legal advice;

   f)the applicant was asked by me:

   i)whether the date of 30 and 31 May was suitable to her, which it was;

   ii)when she wished to file another affidavit and she responded that she would be able to do so within a few days;

   g)she was handed a copy of my draft standard procedural orders, prior to a discussion about a filing timetable;

   h)commencing at line 10, page 13 of the transcript the following exchange occurred:

   HER HONOUR:   You happy with that?  You’ve got to file your affidavit within 28 days.  That gives you a bit more time than two weeks.    All right.  So what I will do is I will make trial directions in accordance with paragraph 2 of my precedent orders, which are that within 28 days from the date of these orders, you have to set out an amended application seeking what orders you want;  and an affidavit of any witnesses you propose to call.  You also have to pay the setting down and trial fees 28 days from the date of these orders.  You will be given a copy of this and I would be very grateful if, Mr Interpreter, you would go through these with Ms Ajam and interpret them to her so she’s under no misapprehension about what is required by these orders. 

   i)commencing on the first line of page 15 of the transcript, the following exchange occurred:

   HER HONOUR:   And the court will engross them;  that means the court will type them up and will send a copy to your address.  So you need to comply with that timetable which the interpreter will interpret to you now.  I will grant leave to you to have that document but it needs to come back to my court officer.  So you can take that document outside with your interpreter.  Have it interpreted to you.  You can - I will arrange for - actually, what I will do is I will arrange my court officer to make a copy of it and then the interpreter can interpret that to you.  All right?

   THE INTERPRETER:   Thank you, your Honour.

   HER HONOUR:   Okay.  Thank you very much.

   THE INTERPRETER:   Thank you.  May I be excused, your Honour?  May I be excused?

   HER HONOUR:   Well, yes, to go outside to interpret the document when it’s copied. 

   THE INTERPRETER:   Thank you.

3. I am satisfied that the applicant:

   a)understood and was aware of the requirement to file documents and the timeframe for filing;

   b)was properly interpreted what was occurring in court;

   c)was handed a copy of the procedural orders whilst discussion was taking place as to the appropriate timeframe;

   d)was handed a copy of the procedural orders during the hearing;

   e)the orders were interpreted to her by the interpreter;

   f)was at all times aware of the date for trial and the obligations set out by the orders of 8 March 2019.

4. The applicant also alleges that she did not receive the email from the court dated 13 March 2019, advising her of the listing on 18 March 2019.

5. The email was forwarded to her current email address, as recorded in the court system, and which was confirmed with her during the hearing on 30 May 2019.

6. The applicant conceded that she had received an email from the court some days prior to 30 May 2019 advising her to attend to pay the setting down fee for the hearing, however for some unknown reason, she asserted that she did not receive prior relevant emails.

7. After having heard her submissions about selective receipt of emails, I do not accept that she did not receive the email from the court advising her of the mention on 18 March 2019.  Nor do I accept that she failed to receive either the email from the respondents’ solicitors, which was forwarded to her subsequent to the mention on 18 March 2019, or the letter which was forwarded to her home address.  All emails were forwarded to the correct email address. 

8. Having regard to my comments at paragraph 40 to 46 of these reasons, I have determined that the applicant was unable to provide a good reason for non-compliance with the orders of 8 March 2019.

The extent to which the party has complied with orders, legislative provisions in the pre-action procedures

1. The applicant has not complied with orders made on 26 February 2019 and 8 March 2019.

Whether the non-compliance was caused by the party or the party’s lawyer

1. The applicant was legally represented at the time the Initiating Application was filed on 23 January 2018.  On 23 March 2018 her then solicitors filed a Notice of Ceasing to Act and she has represented herself thereafter.  It is the applicant who has been responsible for the non-compliance of the February 2019 and March 2019 orders.

The impact of the non-compliance on the management of the case

1. The case is unable to be determined and proceed to trial until the applicant:

   i)amends her application to reflect the grounds on which she seeks to set aside the relevant consent orders; and

   ii)files an affidavit in support of an Amended Application.

The effect of non-compliance on each other party

1. The respondents are unable to properly respond to the applicant’s case until it is amended to particularise exactly what she is seeking.

2. Apart from the applicant, respondent and a company controlled by the respondent, there are no other relevant parties.

Costs

1. The respondents seek an order that the applicant pay their costs fixed at $ 29,400, calculated as follows:

   Senior Counsel’s fees for 2 days at $9,900 per day   $19,800

   Junior Counsel’s fees for 2 days at $3,000 per day   $ 6,000

   Instructing solicitor’s fees for 2 days at $1,800 per day             $ 3,600  

2. As referred to in paragraph 31 hereof, the respondent seeks costs on a “Special Costs” basis.

3. In the Marriage of  I (No 2) (1995) FLC 92-625, the Full Court said that the relevant matters in s.117(2A):

   “…must all be taken into account and/or balanced in order to determine whether the overall circumstances justified the making of an order for costs”

4. I will consider each of the relevant matters.

Section 117(2A)(a) The financial circumstances of the parties

1. The only evidence of the applicant’s financial position is set out in her Financial Statement filed 23 January 2018.  That statement demonstrates that her average weekly income is $400 which comprises Newstart and family tax benefit.  There is no reference in that statement as to the existence of the $150,000 which the respondent paid to the applicant pursuant to the Deed of Settlement. There is also no evidence of the financial position of the respondent, other than the statements in the applicant’s affidavits that he is a person of substantial means.

Section 117 (2A) (b) Whether any party to the proceedings is in receipt of legal aid

1. Neither party is in receipt of legal aid.

Section 117 (2A) (c) the conduct of the parties in relation to the proceedings

1. As previously referred to in these reasons, I do not accept the submissions of the applicant as to why she failed to comply with the orders of 8 March 2019, nor her explanation as to selective receipt of emails.

2. The transcript of the events of 8 March 2019 clearly demonstrate that:

   i)she did not complain about the quality of interpreter on that day;

   ii)the events of the court were explained to her;

   iii)she was assisted by the duty lawyer, including Senior Counsel agreeing to meet with the duty lawyer to explain the legal issues of her application;

   iv)she was provided with a copy of the procedural orders in the court;

   v)she was aware of and participated in discussions about the timeframe of her filing amended documents;

   vi)the procedural orders were further interpreted to her.

3. Her conduct in making submissions which were clearly incorrect is most unimpressive.

Section 117 (2A) (d) whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court

1. the application was fixed for trial on 30 May 2019, however it was unable to proceed due to the applicant’s failure to comply with relevant procedural orders.

2. The application made by Senior Counsel on that day was made because of the applicant’s failure to comply with orders, to enable the trial to commence.

Section 117 (2A)(e) whether any party to proceedings has behalf been wholly unsuccessful

1. The substantive proceedings have been unable to be determined due to the applicant’s failure to comply with procedural orders.

Section 117 (2A)(f)Whether either party has made an offer in writing to settle the proceedings and the terms of such offer.

1. This consideration is not relevant.

Section 117 (2A) (g) such other matters as the court considers relevant

1. All relevant matters have been referred to in these reasons.

2. After having considered all the submissions, I am satisfied that there are grounds which warrant a departure from the usual position that each party should bear his or her own costs.  I will now consider the issue of quantum.

Quantum

1. The costs sought by the respondent are greater than those prescribed by Schedule 3 of the Rules, however less then indemnity costs.

2. At paragraph [12] of Sfakianakis  and Sfakianakis (supra) the Full Court said:

   As the decision in Colgate – Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233-234 (“Colgate – Palmolive”) and the extensive authorities referred to in it make clear, the categories are for the making of special costs orders are not closed and may be made whenever the particular facts and circumstances warrant it. That position is reflected in s117 (2) of the Act.

3. I determine that the applicant should pay the respondents costs in accordance with Schedule 3 of the Rules. In reaching my decision I have had regard to all relevant matters referred to in s117(2A), the applicant’s financial position, as referred to in her Financial Statement filed in January 2018, and the fact that she received in excess of the sum of $150,000 in May 2017, the disposition of which has not been disclosed by her.

4. Item 205 of Schedule 3 provides for a range of fees for Senior Counsel and Junior Counsel. I consider it appropriate to adopt the midpoint of the range for both fees, namely $4,500 per day for Senior Counsel and $2,468 per day for Junior Counsel. I do not propose to include costs for a solicitor’s attendance on either day.

5. Accordingly, I intend to make an order that the applicant pay the respondents’ costs fixed in the sum of $ 13,936 within 60 days.

Whether the applicant should be stayed from taking any further steps in the case until the costs are paid

1. In the context of the applicant’s entirely unsatisfactory explanation about:

   i)her failure to comply with the procedural orders of 26 February 2019 and the orders of 8 March 2019; and

   ii)her failure to attend the mention listed on 18 March 2019,

2. I am of the view that she should be stayed from taking any further action pending payment of the costs which I intend to order.  As she has repeatedly failed to comply with procedural orders, I do not have any confidence that the applicant will take the steps necessary to particularise and prosecute her claim against the respondents.  She has had adequate opportunity to do so.  If such an order were not made, the most likely result would be that the respondents would be required to attend further court events, and incur costs, without the claim against them being appropriately particularised.

3. Having considered the provisions of rules 1.04, 11.02 and 11.03, as referred to in these reasons, I am satisfied that the orders I propose to make are a just and proportionate response to the applicant’s non compliance.

4. Notwithstanding my comments about the applicant’s proficiency in English, I intend to arrange an interpreter to be present when I hand down these reasons, to ensure the applicant is able to have the orders and reasons interpreted to her.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 2 July 2019 2019.

Associate: 

Date:  2 July 2019