Chin & S Law Firm (No. 2)
[2011] FamCAFC 154
•22 July 2011
FAMILY COURT OF AUSTRALIA
| CHIN & S LAW FIRM (No. 2) | [2011] FamCAFC 154 |
FAMILY LAW - COSTS – where the appeal was dismissed because the appellant failed to show reasonable diligence in the prosecution of the appeal – where the respondents sought an order that the appellant pay the reserved costs of two procedural hearings and the costs of the appeal hearing – where the appellant then failed to file a notice of change of address for service and the documents were sent to his current address for service – where there are circumstances which justify an order for costs being made in favour of the respondents – costs order made.
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Chin |
| 1ST RESPONDENT: | Ms Yates |
| 2ND RESPONDENT: | S Family Law |
| 3RD RESPONDENT: | S Law Firm |
| FILE NUMBER: | PAF | 1129 | of | 2005 |
| APPEAL NUMBER: | EA | 113 | of | 2010 |
| DATE DELIVERED: | 22 July 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Ainslie-Wallace JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 August 2010 |
| LOWER COURT MNC: | [2010] FamCA 749 |
| REPRESENTATION |
| SOLICITOR FOR THE APPELLANT: | Self-represented |
| SOLICITORS FOR THE 1ST, 2ND & 3RD RESPONDENTS: | S Law Firm |
ORDERS
Within twenty-eight (28) days of the date hereof the Appellant pay the sum of one thousand one hundred dollars ($1,100.00) inclusive of GST to the Respondents by way of costs.
IT IS NOTED that publication of this judgment under the pseudonym Chin & S Law Firm (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 113 of 2010
File Number: PAF 1129 of 2005
| Mr Chin |
Appellant
And
| Ms Yates |
1st Respondent
And
| S Family Law |
2nd Respondent
And
| S Law Firm |
3rd Respondent
REASONS FOR JUDGMENT
Introduction
On 2 February 2011, on the application of the Respondents we made an order dismissing the appeal filed by the Appellant on 1 September 2010 against orders made by Collier J on 5 August 2010.
We dismissed the appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) on the basis that the Appellant failed to show reasonable diligence in the prosecution of the appeal. The Appellant had failed to appear at a procedural hearing held by the Appeal Registrar on 4 November 2010, and at the adjourned procedural hearing held by the Appeal Registrar on 11 November 2010. Further, the Appellant failed to appear before us on 2 February 2011.
On 2 February 2011, in addition to applying to dismiss the appeal the Respondents sought an order that the Appellant pay the reserved costs of the two procedural hearings and the costs of the hearing that day. However, the Appellant had no notice of this application and thus we made further orders providing for the Respondents to file and serve written submissions in support of their application for costs and for the Appellant to file and serve written submissions in response.
On 8 February 2011 a sealed copy of our orders, a copy of the reasons for judgment, and a copy of the transcript of the hearing on 2 February 2011 were sent to the parties by the Appeal Registrar. However the Appeal Registrar has informed us that the envelope and its contents sent to the Appellant’s address for service was returned to the Registry marked “not at this address” on 10 May 2011.
On 15 February 2011 the Respondents filed their written submissions. The Appeal Registrar has also informed us that a sealed copy of those written submissions was sent to the Appellant at his address for service by the Respondent’s solicitors on 15 February 2011 but subsequently the envelope and its contents was returned marked “not at this address”.
The Appellant has not filed a Notice of Change of Address for Service as required by Rule 8.06 of the Family Law Rules 2004 (Cth). Thus, despite the Appellant apparently not having seen the documents ordered to be sent to him and the Appellant not making any submissions in response, we propose to determine this matter now.
Discussion
The amount sought by the Respondents for costs is the sum of $1,000.00 plus GST of $100.00, payable within 28 days.
As with any application for costs in this jurisdiction this application is governed by s 117 of the Family Law Act 1975 (Cth). Insofar as that section is relevant it provides as follows:
(1)[Party bears own costs] Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) [Costs Orders] If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) [Matters relevant to costs order] In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court consider relevant.
The first question to be addressed is whether there are circumstances here that justify the court in making an order for costs. The Respondents make the following submissions in that regard:
a)The first and third Respondents were not parties to the proceedings in the court below, but were joined by the Appellant in his Notice of Appeal filed on 1 September 2010.
b)
The first Respondent appeared at the first procedural hearing on
4 November 2010 but the Appellant failed to appear at that hearing.
c)
The first Respondent appeared at the adjourned procedural hearing on
11 November 2010 but again the Appellant failed to appear.
d)All Respondents appeared at the hearing before us on 2 February 2011. Again though the Appellant failed to appear.
e)The Respondents prepared, filed and served written submissions as directed by us on 2 February 2011 but the Appellant did not file any responding submissions.
f)Significantly the Appellant is a legal practitioner admitted to practice in New South Wales. Thus he should be treated as being aware of the consequences of not diligently prosecuting his appeal, including the prospect of costs being awarded against him.
g)The Respondents have been put to unnecessary expense by having to attend at the procedural hearings and the hearing before us, and by having to prepare, file and serve written submissions.
In these circumstances we have no hesitation in finding that there are circumstances that justify an order for costs in favour of the Respondents.
Next, as to what order should be made, we need to have regard to the relevant factors set out in s 117(2A) such as we are able to.
We have no evidence before us as to the financial circumstances of each of the parties, but it is apparent that none of the parties is in receipt of assistance by way of legal aid.
In relation to the conduct of the parties we accept the submissions of the Respondents as to the conduct of the Appellant in failing to diligently prosecute his appeal.
We do not consider that paragraph (d) of s 117(2A) is relevant, but in relation to paragraph (e) we note of course that the Appellant’s Notice of Appeal has been dismissed.
In light of the relevant factors that we have identified we consider that it is appropriate to make an order for costs as sought by the Respondents. Indeed, we observe that the amount sought appears to be somewhat generous to the Appellant.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Ainslie-Wallace JJ) delivered on 22 July 2011.
Associate:
Date: 22 July 2011
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