CAI & XUN

[2020] FamCA 261

FAMILY COURT OF AUSTRALIA

CAI & XUN [2020] FamCA 261

FAMILY LAW – PRACTICE AND PROCEDURE – where wife attends court without representation and matter cannot proceed – proceedings adjourned.

FAMILY LAW – COSTS – where wife’s solicitor failed to secure representation for the wife and appeared after the proceedings were completed and the time allocated for the case had expired – where application is made by the husband for the wife’s solicitor to be personally responsible for payment of the husband’s costs thrown away.

FAMILY LAW – COSTS – relevant matters to be considered – costs order made

Family Law Act 1975 (Cth)

APPLICANT: Ms Cai

RESPONDENT: Mr Xun

FILE NUMBER: MLC 7942 of 2016

DATE DELIVERED: 29 January 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 29 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. O’Brien

SOLICITOR FOR THE APPLICANT: John O’Brien & Associates

COUNSEL FOR THE RESPONDENT: Mr K. Nicholson

SOLICITOR FOR THE RESPONDENT: Leem Lawyers

Orders

IT IS ORDERED THAT

1. The extract from Chapter 13 of the Family Law Rules 2004 in relation to disclosure be marked Exhibit “C2” and remain on the Court file NOTING THAT a copy has been provided to all parties.

BY CONSENT (of Mr O’Brien and the husband and not opposed by the wife)
IT IS ORDERED:

1. Mr O’Brien, solicitor, pay a contribution to the costs of the husband thrown away this day fixed in the sum of $1,900 such payment to be made in 14 days to the solicitor for the husband.

IT IS FURTHER ORDERED THAT:

1. This First Day of Hearing event be adjourned to Tuesday 29 April 2020 at 9.00 am where the parties and their respective practitioners are required to attend personally.

2. This matter be listed for mention by telephone before me on Monday 2 March 2020 at 9.00 am to check on the compliance with filing of documents. For the purpose of appearing by telephone the practitioners are to dial … and when prompted enter the passcode …# (do not forget the #) to be linked into the Court room. The clients should be with the practitioners or link in separately for the purpose of listening to the proceedings.

3. The wife’s time for compliance with:

   a)Paragraphs 1, 2 and 3 of the Order made on 11 September 2019; and

   b)Paragraphs 2, 3, 4, 5, 10 and 11 of the Order made on 16 October 2019;

   be extended to 23 February 2020.

4. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

IT IS DIRECTED:

1. That the minute of proposed orders be marked Exhibit “A” and remain on the Court file.

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 Cai & Xun 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 7942 of 2016

MS CAI

Applicant

And

MR XUN

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter was listed for a first day of hearing today at 9.00 am.  The matter has not been able to proceed because the legal representative for the wife has failed to attend Court.  The husband has attended in person with his solicitor and with counsel, being Mr Nicholson of counsel.  Overnight an email, which is Exhibit “C1”, was sent to my associate.  Omitting formal and irrelevant parts it is apparent that it was sent at 10.52 pm on Tuesday 28 January, and reads as follows:

   Following a conference with my client I advised that at 10.15 pm this evening I dismissed Mr B, of counsel, from further involvement in this case and required him to immediately return the brief he held.  I will be in attendance tomorrow with Mr C of counsel. 

2. At approximately 9.08 am the matter was called at the door of the Court and there was no appearance by or on behalf of the wife.  The matter proceeded with some short submissions.  The wife then made herself known and entered the Court.  She informed the Court that Mr O’Brien told her to be at Court at 8.30 am today, which she was.  At approximately 8.50 he told her that he would be at Court shortly.  The wife does not know which barrister she was going to have represent her today.  She did not recognise either Mr B or Mr C, although her recollection was that some barrister had been ill and was unavailable to attend.

3. Frequently, persons attending Court do not leave sufficient time to clear Court security.  My Associate has checked with the Registry staff and ascertained that there is no inordinate queue at the door of the Court, so I am satisfied that Mr O’Brien is not caught in a queue and unable to enter the building. 

4. Mr Nicholson of counsel attempted to contact Mr C but could not do so.  He contacted Mr C’s clerk and was informed that Mr C does not hold a brief in this matter today.  Fairly, he concedes that Mr C’s clerk may not know of his engagement today.

5. The wife does not seek to proceed to appear on her own behalf.

6. My legal associate placed a call from Court to the mobile number provided in the email sent by Mr O’Brien at 10.52 pm last night.  The call went to voicemail.  At my direction she then called Mr O’Brien’s office - on … - and left a message saying that the matter was in Court and they should ring immediately.  There has been no response to that call. 

7. The matter was again called on at 9.45 am and there was no response.

8. This matter was listed at 9:00 a.m. for not more than an hour.  The timing is precise because counsel appearing before me are aware that they will be safely away in time for an appearance in another Court in this building comfortably before 10:00 a.m.

9. The matter will need to be adjourned and today has been wasted.

10. Mr Nicholson makes an application for costs thrown away this day.  He does not seek that the wife pay his client’s costs.  He seeks a costs order against Mr O’Brien, whose failure to attend or to secure counsel to appear has meant that the matter could not proceed.  It seems to me that the application can properly be made against the legal practitioner, who is Mr O’Brien.  Mr O’Brien has no notice of the application against him but I will reserve to him liberty to seek to set aside any costs order which is made today in his absence notwithstanding that I am struggling to see why the husband should suffer financially for costs thrown away by virtue of Mr O’Brien’s failure or neglect to arrange representation for the wife.

11. The usual position is that each party bears his or her own costs of proceedings (Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”)). However, in this case I am satisfied that leaving the wife without representation and consequently wasting the listing is a circumstance which justifies an order for costs within the meaning of section 117(2) of the Act. In considering what (if any) costs order should be made, I have regard to the matters is section 117(2A) of the Act. In particular, I am satisfied that neither party can afford, nor should be required, to incur and be responsible for costs which are wasted. Overwhelmingly, though, it is the conduct of Mr O’Brien in leaving the wife unrepresented and frustrating the hearing today which I take into account pursuant to section 117(2A)(g) of the Act. I am satisfied that a costs order should be made.

12. I am not satisfied that the costs order should be in the sum sought.

    RECORDED : NOT TRANSCRIBED

13. I note that as I give these reasons Mr O’Brien has apparently entered Court at 9.55 am, interrupting the reasons.

    RECORDED : NOT TRANSCRIBED

14. In the following interchange, Mr O’Brien has indicated his consent to an order for costs against him.[1]

    [1] Transcript in Confidence, 29 January 2020, 10-11.

    HER HONOUR:   Are you Mr O’Brien?

    MR J. O’BRIEN:   Yes, your Honour. 

    HER HONOUR:   Well, what are you      

    MR O’BRIEN:   I have an explanation for this.

    HER HONOUR:   What are you doing standing behind      

    MR O’BRIEN:   Because I’ve just come in and I wasn’t sure what you were doing.  If you’re doing this case I will move over here. 

    HER HONOUR:   Mr O’Brien, this matter was listed at 9 am.  We have exhausted the time      

    MR O’BRIEN:   I know that.  I did my best.  I did my best – worked till 4 and I got up and I – traffic was horrendous. 

    HER HONOUR:   All right.  Well, you can listen for the time being.  Mr O’Brien, be quiet. 

    MR O’BRIEN:   Yes.  Very well, your Honour. 

    HER HONOUR:   The time allocated to this matter is now exhausted.  The husband has incurred costs which are thrown away today.  He has made an application for those costs.  Your client has been at court since 8.30 am.  She informs me that at 8.50 am you said that you would be here shortly.  You now attend at 9.55.  I am minded to make a costs order, but make it against you personally, because it does not appear to be any fault of your client’s that the matter could not proceed today.  Is there anything that you want to say in relation to a costs application?  There are two things that you would ordinarily address.  One is liability and the next is quantum.  In relation to quantum, the costs were claimed at $3424, but that included an amount of $1500 for drawing their application for the matter to proceed on an unopposed basis, and I’ve not allowed those – I would not be minded to allow those today, because that application can be prosecuted later on, and it’s work that has already been done.  So you may stand and tell me on what basis you ought not pay the costs thrown away this day. 

    MR O’BRIEN:   There is none, your Honour.  If your orders are to be made against me personally, I consent to it.

    HER HONOUR:   Right.  Thank you.

15. I will make the costs order in the sum of $1900.  Payment is to be made within 14 days. 

RECORDED : NOT TRANSCRIBED

1. For case management purposes, following discussions outside Court between the practitioners, it was agreed that the matter would be adjourned.  I direct that it be listed for a first day hearing on 29 April 2020 at 9:00 a.m. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 January 2020.

Associate: 

Date:  22 April 2020