Bing and Bing and Anor - [2010] FamCA 241

FAMILY COURT OF AUSTRALIA

BING & BING AND ANOR

[2010] FamCA 241

FAMILY LAW – COSTS – Review – Orders – Interpretation – Meaning of “by 30 October” in an order

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Armstrong v Great Southern Gold Mining Co (1911) 12 CLR 382
Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161
Queensland v JL Holdings (1997) 189 CLR 146

APPLICANT:

Mr Bing

RESPONDENT:

Ms Bing

INTERVENOR:

Rockman & Rockman

FILE NUMBER:

MLF

1745

2006

DATE DELIVERED:

19 March 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

19 MARCH 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ALSTERGREN

SOLICITOR FOR THE APPLICANT:

BUXTON & ASSOCIATES

COUNSEL FOR THE RESPONDENT:

NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

NEVILE & CO

COUNSEL FOR THE INTERVENOR:

MR STRUM

SOLICITOR FOR THE INTERVENOR:

ROCKMAN & ROCKMAN

Orders

That the outstanding costs issue as between the wife and Rockman and Rockman be listed for further mention and argument at 9.00am on 24 March 2010.

IT IS NOTED that publication of this judgment under the pseudonym Bing & Bing and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1745 of 2006

MR BING

Applicant

And

MS BING

Respondent

ROCKMAN & ROCKMAN
Intervener

REASONS FOR JUDGMENT

On 1 October 2009, on an application made by the wife, I made the following orders:
1.That subject to the conditions set out below, the wife have leave to review the orders of Registrar Riddiford made 8 April, 2009 out of time.
2.If the said conditions referred to are not met in full, the wife’s application filed 28 July, 2009 stands dismissed and the leave referred to in paragraph (1) hereof is declined.
3.If the said conditions are met in full, by arrangement with the Associate to the Honourable Justice Cronin, the matter of the disputed cost assessment be listed for hearing and determination.
4.The conditions referred to in paragraphs (1) to (3) hereof are as follows :
(a)by 30 October, 2009, the wife present to this Court a minute of orders sought with the consent of the husband and the wife for :
i.the expeditious sale of the [business] referred to by Mr. B. Walmsley S.C. in submissions made on 4 September, 2009; and
ii.from the net proceeds, the sum of $285,798.44 for and on behalf of the wife, be paid into the trust account of Rockman and Rockman;
(b)by 30 October, 2009, the wife file and serve a precise list of objections to the costs account of Rockman & Rockman as certified by the registrar to sufficiently identify what matters are in dispute.
No appeal was lodged against the order nor was any application for leave to appeal filed.
It may be that in hindsight, the orders create a difficulty for the process of the contemplated review.
On 8 April 2009, Registrar Riddiford certified the bill of costs prepared by Rockman and Rockman. The order he made was on its face, pursuant to Rule 19.37. According to the Registrar, that rule applied because the wife did not follow the procedure under Chapter 19 of the Rules which would have entitled her to participate in the costs assessment.
Rule 19.38(2) provides that the party who is liable to pay the costs under the assessment order has 14 days after receiving the order to apply to set it aside.
On 14 April 2009 according to the affidavit of the wife filed 28 July 2009, she was served with the order of Registrar Riddiford. As such, under Rule 19.38(2) she had 14 days to apply to set it aside.
On 28 July 2009, the wife sought to set aside the costs order. She was well out of time.
It has been the subject of some discussion but I am satisfied that the Registrar not only made the order regularly as I have previously set out in my reasons dated 1 October 2009 but also that he did so on a default judgment basis. There is no requirement under Rule 19.37 for the Registrar to do any more than make the costs assessment if the requirements of Rule 19.37(2) have been fulfilled. In this case they were.
When the matter was argued before me in September 2009, the thrust of the case of the wife was that she needed an indulgence because she was out of time. Rule 19.38 does not contemplate a review of the registrar’s decision but rather a setting aside of it.
In discussions with counsel with both parties on 19 March 2010, each party was contemplating the matter being determined upon a review. It may be that this matter has to be argued again as to how that review is to occur.
The matter came on before me on 19 March 2010 on the basis that there was a dispute about whether the wife had complied with paragraphs 4(a) and (b) of the orders of 1 October 2009 anyway. On any view, the orders of 1 October 2009 were self-executing. If the wife has not complied with them, she does not have right to proceed to the review in any event.
Counsel for Rockman and Rockman argued:
(a)the wife filed what was required of her pursuant to paragraph 4(a) on 30 October 2009; and
(b)in any event, the document filed was not a precise list of objections to the costs.
Counsel for the wife argued that I should take a liberal view of the requirements having regard to authorities such as Queensland v JL Holdings (1997) 189 CLR 146 and Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.
In so far as the orders of 1 October 2009 are concerned, the words “by 30 October 2009”, mean by the end of 30 October 2009 rather than the end of 29 October 2009.
Reference was made by counsel for Rockman and Rockman to s 36(1) of the Acts Interpretation Act 1901 (Cth) but unfortunately, that only relates to interpretation of time within legislation.
Rule 1.21 of the Family Law Rules 2004 sets out the process by which time is calculated. That rule however does little to assist in determining the meaning of days. Where the immediate purpose of the order is to define a period within which something must be done, it has to be before the expiration of the nominated day. (See Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161 and Armstrong v Great Southern Gold Mining Co (1911) 12 CLR 382). Accordingly, the wife had until the conclusion of 30 October to file a document.
Counsel for Rockman and Rockman argued that in respect of paragraph 4(b) of the order, the wife had not filed a precise list of objections to the cost account. However, the order as written, required the wife to provide a precise list of objections such as would sufficiently identify what matters were in dispute.
On 26 October 2009, the wife filed a Notice Disputing Itemised Cost Account. This document could best be described as the list of objections that would normally be filed prior to a cost assessment dispute. There was correspondence between the parties thereafter as a result of which it would seem that the wife conceded that her document did not fit the description in paragraph 4(b) because on 29 January 2010, a document described as a “submission” was filed. On a cursory examination of that document, it appears more an argument about the various items.
Both documents however when read together or separately clearly indicate what items are in dispute. Neither document is precise but each would enable Rockman and Rockman to understand what were the wife’s complaints. To that extent, the wife has barely complied with the order.
I indicated that this was a threshold issue and would then make directions as to how the matter was to be dealt with but having regard to what I have earlier said, I propose to have the parties be given an opportunity to consider their positions and decide how they wish to proceed further and then if necessary, to further determine the matter.

I certify that the preceding Twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 26 March 2010