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Chen & Tan (No 2)

Chen & Tan (No 2)

Case [2012] FamCA 796 19 September 2012

Statutory Construction

Family Law

Civil Procedure

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FAMILY COURT OF AUSTRALIA

CHEN & TAN (NO. 2)

[2012] FamCA 796

FAMILY LAW – COSTS – Applicable principles for costs Orders relating to forum proceedings – Power under which costs can be ordered

FAMILY LAW – COSTS – Principles for indemnity costs Orders – whether an indemnity costs Order was appropriate in this case

Civil Proceedings Act 2011 (Qld)
Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)
Supreme Court Act 1995 (Qld)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Skinner v Alfonso-Skinner (Costs) (2010) FamCA 1108
Yeo & Huy (Costs) [2012] FamCA 758

APPLICANT:

Ms Chen

RESPONDENT:

Mr Tan

FILE NUMBER:

BRC

7088

2011

DATE DELIVERED:

19 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Chambers

JUDGMENT OF:

Kent J

SUBMISSONS RECEIVED:

Respondent: 16 and 28 May 2012
Applicant: 17 May 2012 and 8 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McLennan

SOLICITOR FOR THE APPLICANT:

Dante Chen Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kirk SC

SOLICITOR FOR THE RESPONDENT:

Dixie Ann Middleton & Associates

Orders

The Husband pay the Wife’s costs of and incidental to the Husband’s application for a permanent stay of the Wife’s application on a party and party basis, with costs to be agreed and, failing agreement, to be assessed and taxed.
Paragraph 1 of these Orders is stayed pending the outcome of the Husband’s Notice of Appeal filed 9 May 2012. Should the Husband’s appeal be discontinued or dismissed, then paragraph 1 is to be re-enlivened from the date of dismissal or discontinuance. Should the Husband’s appeal be successful, the stay of paragraph 1 of these Orders is to be permanent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chen & Tan 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 BRISBANE

FILE NUMBER: BRC 7088 of 2011

Ms Chen

Applicant

And

Mr Tan

Respondent

REASONS FOR JUDGMENT

Introduction

On 12 April 2012 I made Orders and delivered reasons for judgment dismissing the Husband’s application for a permanent stay of the Wife’s proceedings for financial relief under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) filed in Australia. I further ordered that the parties be at liberty to apply to this Court regarding an Order for the costs of and incidental to that application. Such Order provided that in the event that the parties are unable to agree in writing within 21 days of the Order as to costs, each party was to file written submissions in respect of that issue within a further 14 days (that is, by 17 May 2012).
Both parties complied with this Order, with the Husband filing written costs submissions on 16 May 2012 and the Wife doing likewise on 17 May 2012. Then, despite acknowledging that the Orders referred to above made no provision for the filing of submissions in reply, the Husband nonetheless filed further submissions as to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen & Tan (No 2)

Details

AGLC: Chen & Tan (No 2) [2012] FamCA 796
Case: [2012] FamCA 796
Decision Date

CaseChat Overview and Summary

In *Chen & Tan (No 2)*, the Family Court of Australia considered an application for costs following the dismissal of the Husband's application for a permanent stay of financial relief proceedings initiated by the Wife in Australia. The dispute arose from the Husband's contention that Taiwan was the clearly inappropriate forum for the proceedings, given the parties' Taiwanese citizenship and the location of their brief relationship and child's birth. The Wife argued that substantial connecting factors to Australia warranted the proceedings continuing in that jurisdiction.

The primary legal issues before the Court were the appropriate legal basis for awarding costs in a forum dispute and whether an indemnity costs order was warranted. The Husband argued that section 117 of the *Family Law Act 1975* (Cth) was inapplicable to forum proceedings, suggesting an alternative approach based on case law. The Wife contended that section 117 was applicable as her initiating application was filed under the Act. The Court was also required to determine whether the Husband's conduct justified departing from the usual party and party costs basis to award indemnity costs.

Justice Kent found that proceedings concerning whether Australia is a clearly inappropriate forum do not fall under the *Family Law Act 1975* and are not regulated by it. Instead, such proceedings arise from the Court's accrued equitable or inherent jurisdiction. Consequently, the Court's power to award costs was sourced from section 79(1) of the *Judiciary Act 1903* (Cth), which mandates that the laws of the relevant State apply to federal courts. In this instance, the Court applied section 221 of the *Supreme Court Act 1995* (Qld) and Rule 681 of the *Uniform Civil Procedure Rules 1999* (Qld), which generally dictate that costs follow the event. The Court determined that a costs order was appropriate given the Husband's complete lack of success in his stay application, but declined to award indemnity costs, finding that the Husband's conduct, while containing inconsistencies, did not reach the threshold of special or unusual features warranting such an order at that interim stage.

The Court ordered that the Husband pay the Wife's costs of and incidental to his application for a permanent stay on a party and party basis. However, this costs order was stayed pending the outcome of the Husband's appeal against the dismissal of his stay application. If the appeal is discontinued or dismissed, the costs order will become effective; if the appeal is successful, the stay will be permanent.

Orders