Bechara and BOURAS and Anor

[2014] FamCA 975

FAMILY COURT OF AUSTRALIA

BECHARA & BOURAS AND ANOR [2014] FamCA 975

PRACTICE AND PROCEDURE – Registrar – Review of decision – Costs Assessment – Where costs orders were made against the husband in the substantive proceeding – Where the husband did not file an objection to the preliminary costs assessment – Where the husband made an application to dispense with the requirements of rule 19.30 Family Law Rules 2004 (Cth) – Where the application was dismissed by the Registrar – Where the Registrar made a costs assessment in favour of the respondents – Where the husband filed the application for review out of time – Where there was no evidence of the reason for delay – Application dismissed.

Family Law Rules 2004 (Cth) rule 19.30

Gallo v Dawson (1990) 93 ALR 479

APPLICANT: CAMEEL BECHARA

FIRST RESPONDENT:	SOTIRIOS BOURAS
SECOND RESPONDENT	LABRINI BOURAS

FILE NUMBER: SYC 2145 of 2009

DATE DELIVERED: 13 November 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: REES J

HEARING DATE: 3 November 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: State Lawyers

SOLICITOR FOR THE 1^ST AND 2^ND RESPONDENTS: Mcdonell Milne Toltz Family Lawyers

Orders

IT IS ORDERED

1. That the Application in a Case, filed by Cameel Bechara (“the husband”) on 16 September 2014, be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2145 of 2009

CAMEEL BECHARA

Applicant

And

SOTIRIOS BOURAS

First Respondent

And

LABRINI BOURAS
Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Cameel Bechara (“the husband”) to review orders and directions made in these proceedings by Senior Registrar Campbell on 12 August and 2 September 2014.

2. The respondents to this application were the second and third respondents in the substantive proceedings. In these reasons, they will be referred to as “the respondents”.

3. On 27 November 2012, in the substantive proceedings, Fowler J made orders, in favour of the respondents, that the husband pay their costs of and incidental to the trial on an indemnity basis.

4. The proceedings arise in circumstances where the respondents sought an assessment of the costs to which they were entitled pursuant to orders made by Fowler J. The respondents filed an application on 19 December 2013 which was subsequently amended. On 18 February 2014 a Notice Disputing Costs was filed by the husband.

5. On 14 March 2014 the husband filed an amended response.

6. On 17 March 2014 Johnston J made orders, by consent, that the husband pay any money he was to receive from the proceeds of sale of the jointly owned property into a controlled money account in the joint names of the solicitors for the respondents and himself.

7. On 8 May 2014 Senior Registrar Campbell issued a preliminary assessment in an amount of $109,160 and directed that any objection was to be filed by 29 May 2014 and an amount for security for costs for $6,067.37 was to be paid within 21 days in the event that an objection was filed.

8. The directions of the Senior Registrar were made in accordance with rule 19.30 of the Family Law Rules 2004 (Cth) which provide:

   (1)  A party may object to the preliminary assessment amount by:

   (a)  giving written notice of the objection to the Registrar and the other party; and
   (b)  paying into court a sum equal to 5% of the total amount claimed in the itemised costs account as security for the cost of any assessment of the account;

   within 21 days after receiving written notice of the preliminary assessment amount.
   (2)  On receiving a notice and security, the Registrar must fix a date for an assessment hearing for the itemised costs account.
   (3)  The party objecting may be ordered to pay the other party's costs of the assessment from the date of giving notice under paragraph (1) (a) unless the itemised costs account is assessed with a variation in the objecting party's favour of at least 20% of the preliminary assessment amount.
   Note: The court may order that a party is not required to pay security under paragraph (1) (b).

9. No Notice of Objection was filed and no money was paid into Court pursuant to the orders of the Senior Registrar.

10. On 29 May 2014 the husband filed an application seeking to have the Court dispense with the requirements of rule 19.30. In support of that application the husband relied on an affidavit by his then solicitor, Mr Kaya. That affidavit, of three paragraphs, was based on Mr Kaya’s information and belief as to the husband’s financial position. Prima facie, Mr Kaya’s evidence was inadmissible.

11. On 25 June 2014 the Senior Registrar made directions for the filing of material by the respondents in response to the husband’s application. That material, together with written submissions, was duly filed. No submissions were filed on behalf of the husband.

12. On 12 August 2014 the Senior Registrar dealt with the application. The application was dismissed and the husband was ordered to pay the costs of the respondents. The Senior Registrar made the following order:

    I direct that, if either party wishes to object to the preliminary assessment, that party must prepare, file and serve a written notice of objection by 4pm 19 August 2014. At the time of filing the Notice of Objection, that party must pay into Court the sum of $6,067.37 by way of security for costs of any assessment hearing.

13. No objection was filed or served and no payment was made into Court pursuant to the directions of 12 August 2014.

14. In the absence of any Notice of Objection, the Senior Registrar proceeded to determine the preliminary assessment on 2 September 2014.

15. The husband filed an application on 16 September 2014 to review the decisions of the Senior Registrar made on 12 August 2014 and 2 September 2014.

16. In relation to the decision made on 12 August 2014, the application was filed out of time. The onus of providing admissible evidence on which the Court might exercise its discretion was upon the husband.

17. In support of the application for review of the decision of the Senior Registrar, the husband relies upon two affidavits, an affidavit of Mr Hiramanek, solicitor, sworn 15 September 2014 and the affidavit of Mr Kaya which was before the Senior Registrar.

18. Mr Hiramanek was the solicitor for the husband when the application for review was filed but is no longer instructed. He is not the solicitor on the record for the husband but he nevertheless appeared on 3 November 2014 for the husband.

19. It was conceded on behalf of the husband by Mr Hiramanek, who appeared, that all of the applications for review are out of time.

20. The High Court in Gallo v Dawson (1990) 93 ALR 479 explained that the grant of extension of time to review a decision is not automatic. In considering such an application it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant of refusal of the application. Importantly, in considering the conduct of the partie,s the Court must consider the explanation for the delay and the reason why the application was not filed within the time specified in the rules.

21. There is no evidence contained in either of the affidavits relied upon by the husband which goes to these matters. Particularly, there is no evidence of the reason for the delay in filing the application.

22. The substantive issue which the husband asks the Court to determine is his application to dispense with the compliance with rule 19.30.

23. In the circumstances of this case, it is necessary to determine whether or not dispensing with compliance with rule 19.30 would have any utility. The order which was made by Fowler J was an order that the husband pay indemnity costs. The Senior Registrar had available to him a costs agreement, the itemised bill of costs and evidence that the work had been done and paid for. Nothing in the affidavits relied upon by the husband, suggests that the process which was conducted by the Senior Registrar was other than appropriate and proper or that, in the event that the husband were able to file an objection, the result would be any different from that which was determined by the Senior Registrar.

24. Having regard to all of those matters it is not appropriate to extend the time for the husband to review the orders of the Senior Registrar. The husband, who bears the onus, has not demonstrated that there is any basis upon which compliance with rule 19.30 should be dispensed with. The only matter upon which he relies is his alleged impecuniosity. There is no affidavit by the husband. The affidavits of his two solicitors do not demonstrate circumstances that would cause the Court to exercise its discretion.

25. In addition, in the proceedings before the Full Court, the solicitor for the husband swore an affidavit on 1 August 2014 in which he deposed that the husband at all times had available the sum of $15,000 to meet an order which was made by the Full Court on 14 May 2012.

26. It is an inescapable conclusion therefore that the husband had available to him the amount of money which was to be paid, in accordance with the directions of the Senior Registrar, by 29 May 2014.

27. It is not appropriate either to extend the time for the husband to review the orders of the Senior Registrar or to grant his application and the application will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ress delivered on 13 November 2014.

Associate:  SNK

Date:  13 November 2014