Chen v Covich
[2023] FedCFamC2G 830
•4 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chen v Covich [2023] FedCFamC2G 830
File number(s): BRG 287 of 2020 Judgment of: JUDGE EGAN Date of judgment: 4 September 2023 Catchwords: PRACTICE AND PROCEDURE – where applicant failed to comply with an order of the Court for the filing and service of a pleading – where the applicant failed to appear at a directions hearing of which she had notice – where the Court was of the view that the applicant had failed to prosecute the proceeding with due diligence – where the applicant’s claim in the proceeding was accordingly stayed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Rule 13.04 Division: Division 2 General Federal Law Date of last submission/s: 6 August 2023 Date of hearing: 9 August 2023 Place: Brisbane Number of paragraphs: 8 Place: Brisbane Applicant: No appearance Respondent: Mr G. Covich ORDERS
BRG 287 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVA (AIPING) CHEN
Applicant
AND: NORM COVICH
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
4 SEPTEMBER 2023
IT IS ORDERED THAT
1.The Applicant’s claim in this proceeding be stayed until further order of the Court.
2.The hearing dates set aside for the hearing of the trial of this matter on 1 July and 2 July 2024 be vacated.
3.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
4.The costs of and incidental to todays’ hearing be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
JUDGE EGAN
This matter came before the court today because, by an email sent to Judge’s Chambers on 21 August 2023 by Mr Geoffrey Covich, the son of the named respondent, it became clear that the respondent in this proceeding, namely, Norm Covich, had died
In the light of that occurrence, the matter was listed for a directions hearing today in order that the intentions of the applicant might be made clear in the light of the information disclosed by Mr Geoffrey Covich.
Exhibits 1, 2 and 3 make it clear that the applicant was given an opportunity to appear today at the directions hearing. She failed to do so.
On 9 August 2023, the Court made orders as follows:
“1.Orders 1, 3 and 4 of the orders of Judge Tonkin made on 3 January 2023 be vacated.
2. The matter be listed for hearing on 1 July and 2 July 2024.
3. The Applicant shall file and serve:
A.A properly particularised Amended Application setting out, with precision, the final orders sought by the Applicant.
B.A Statement of Claim properly particularised setting out the Applicant’s claims.
C. An updated single consolidated trial Affidavit and;
D. Any other witness Affidavits upon which the Applicant intends to rely;
on or before 4:00pm on 16 August 2023.
4. The Respondent shall file a Defence to the Statement of Claim on or before 4:00pm on 20 August 2023.”
A perusal of the court file discloses that the applicant has failed to comply with order 3 of the orders of the court made on 9 August 2023. That, in itself, and without explanation, is evidence of the applicant having failed to prosecute the proceeding with due diligence.
In the light of the applicant’s non-compliance with an order of the court, and further by reason of the non-appearance today of the applicant in circumstances where the applicant was clearly advised that a directions hearing was to take place today, the court is of the view that the applicant’s proceeding ought to be stayed, pursuant to r. 13.05(1)(a) of the Federal Circuit and Family Court of Australia(Division 2) (General Federal Law) Rules 2021 (Cth) by reason of the respondent’s default under r. 13.04(1)(e) of the Rules.
The Court accordingly orders that the applicant’s claim in the proceeding be stayed until further order of the court.
The court is further of the view that the trial dates set aside for the hearing of the matter on 1 July and 2 July 2024 ought to be vacated.
And it is so ordered.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate: JM
Dated: 4 September 2023
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