Gin & Hing (No 10)
[2024] FedCFamC1F 230
•9 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gin & Hing (No 10) [2024] FedCFamC1F 230
File number MLC 4528 of 2010 Judgment of WILSON J Date of judgment 9 April 2024 Catchwords FAMILY LAW – PARENTING – Costs adjournment application by the applicant – applicant failed to meet submissions deadline – recent appointment of solicitors – application for adjournment granted – costs ordered against applicant Legislation Family Law Act 1975 s 117(1), s 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 s 12.17(1)
Cases cited Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Fitzgerald v Fish and Anor (2005) 33 Fam LR 123
Division Division 1 First Instance Number of paragraphs 13 Date of last submission 9 April 2024 Date of hearing 9 April 2024 Place Melbourne Counsel for the applicant Ms L. Colla Solicitor for the applicant MST Lawyers Counsel for the respondent Mr F. Dixon SC Solicitor for the respondent Clancy & Triado ORDERS
MLC 4528 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GIN
Applicant
AND: MS HING
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
9 APRIL 2024
THE COURT ORDERS THAT –
1.The date in paragraph 36 of the orders made 22 November 2023 is extended to 10:00am on 23 April 2024.
2.If the father does not file affidavit material and submissions in accordance with the extended period ordered above, the determination of costs will be undertaken in the absence of submissions from him.
3.The costs of this day, being $9,000, are to be paid by the respondent by 10:00am on 16 April 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gin & Hing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
In this proceeding orders were made on 22 November following trial. Any application for costs was to be filed and served by 30 January 2024 (which was done), and any affidavits and submissions in opposition were required to be served and filed by 2 April 2024 (which was not done). The father has deposed to various activities behind the scenes including his separation in December of last year and an application before Aldridge J in March of this year during which he was unrepresented. New solicitors have been retained by him, those new solicitors having come onto the record on 27 March 2024.
It seems that one might infer that those new solicitors were retained after Aldridge J directed that the appeal in this proceeding remain fixed for 29 April 2024 and that whatever application the father may make is to be brought on for hearing that day, 29 April 2024. It is fair to say that in the period from 22 November 2024 when the decision after trial was handed down and today’s date, precious little, if anything, has been done by the father to comply with his obligations reposed in paragraph 36 of my orders dated 22 November 2023.
He sought by way of ambit claim that he be relieved of his obligation to file submissions on the costs aspect following the trial until a date after the hearing and determination of the appeal presently fixed for 29 April 2024. The mother has opposed the application brought by the father to adjourn the date by which the father is required to file affidavit material and submissions in respect of costs. The mother relies on principles well known in Aon Risk Services Australia Ltd v Australian National University[1] saying there ought to be no extension of the time previously ordered because, in essence, the father has sat on his hands in failing to do that which he ought to have done.
[1] (2009) 239 CLR 175.
Counsel for the father informed me today that when this proceeding returns before the Full Court on 29 April 2024 the father will or is likely to apply to adjourn the hearing of the appeal yet further, although of course until that day arrives it is not possible to say precisely what position the father adopts. On behalf of the mother Mr Dixon SC submitted that the father’s position on this application reflects a deliberate tactical decision by him to prolong the finalisation of this litigation.
Before addressing the statutory provisions that guide me on an application of this sort, it is fair to say that the father has been careless in the least and deliberately noncompliant at the other end of the spectrum in his compliance with the orders made on 22 November 2023. Conversely, Mr Dixon SC submitted that the mother has complied to the letter with her obligations as previously ordered. In order to finally conclude the trial of this proceeding, I am required to finalise all issues including costs. They presently remain unresolved largely because the father has not done what he has been ordered to do.
In my view it is absurd to think that the Full Court which is presently fixed to hear the appeal on 29 April 2024 should determine the appeal and yet I am required to wait in the determination of the father’s costs because of his noncompliance with orders previously made. The amounts involved in respect of costs are very considerable as Ms Colla correctly points out. Nevertheless the father seeks an indulgence and one would think that he should have acted with much greater expedition than he presently has displayed in doing what he is required to do in respect of complying with paragraph 36 of my orders dated 22 November 2023.
He had no trouble in advancing, when unrepresented in this case, any number of arguments on any number of legal and factual issues. Yet when it comes to dealing with costs he says that he is unrepresented and has been in the period from 22 November 2023 until 27 March of this year thereby disabling him from engaging in the complex task of responding to the costs contentions that he must address in this case. I find that contention difficult to accept. That said, I recognise that new solicitors are now retained and they should have some amount of time to endeavour to acquaint themselves with the factual matters of this case in order to advance the position that the father best instructs them to advance in respect of his opposition to costs.
I refuse to entertain the father’s application for submissions on costs to be extended beyond 14 days from today. It seems to me that the concession made by Ms Colla was appropriately made when she said that her new solicitors will do what they have to do to expedite the preparation of all matters relevant to costs. To that end I extend the date in paragraph 36 of the orders made 22 November 2023 to 10:00 am on 23 April of this year. A word of caution, I propose to add to the order just pronounced the following, that if the father does not file affidavit material and submissions in accordance with the extended period now ordered, the determination of costs will be undertaken in the absence of submissions from him. The father should get serious about the remaining aspects of this case, contrary to the cavalier attitude he has displayed thus far.
The mother seeks costs of today. Her position on the point vacillated from an application on an indemnity basis in the sum of $10,500 being the amount of senior counsel of $9,000 and of the mother’s solicitor to a different amount of $1,500 making $10,500. She then sought costs on a party/party basis of $9,000. The difference in approach is to be explained on the basis that rule 12.17(1) of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 entitles the court to make an order that a party is entitled to costs of a specific amount. Conversely, in respect of indemnity costs the court is required to scrutinise cost agreements between the parties and a variety of additional factual matters which seem to go beyond the matters presently under debate today.
At all events, Mr Dixon SC submitted that no matter what basis or amount is sought for costs, he sought an order that those costs be paid within seven days. In my opinion there is merit in Mr Dixon’s SC’s contention for a costs order to be paid by 10:00 am on 16 April 2024. I specify the amount of $9000 in accordance with rule 12.17(1) of the rules. The order that I have just pronounced deviates from the order required by s 117(1) of the Family Law Act 1975 to be made, namely that each party is responsible for his or her own costs. Being an order made under s 117(2), the eight subsets of s 117(2A) provide individually, a basis for the making of a costs order.
As the court held in Fitzgerald & Fish[2], only one of those subsections needs to be enlivened for a valid costs order that deviates from s 117(1) to be made. Subsection 117(2A)(g) provides that a court may have regard to such other matters as the court considers relevant. On this application I take the view that the father’s cavalier attitude towards compliance with his obligations in paragraph 36 of the orders made on 22 November 2023 provides sufficient justification for the making of the order for costs. He made no effort whatsoever in the period from 22 November 2023 until 27 March 2024 of this year when new solicitors were retained to even consider, still less do something about, complying with the orders made in paragraph 36 of my 22 November 2023 orders.
[2] (2005) 33 Fam LR 123.
That is not the manner in which the rules of this court require litigants to operate. Whether litigants in person or represented, they are required to discharge the overarching obligations that are mandated by the enabling legislation of this court including subordinate legislation, to advance the case. The father’s conduct and behaviour is wholly antithetical to the rules. In those circumstances I make the order extending the time as previously pronounced and I also make the order for the payment of $9,000 by the time specified.
I expect the costs submissions to be filed as ordered. If they are not filed on that day the case will proceed in the absence of submissions by the father.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 9 April 2024
0
1
2