Gin & Hing (No 11)
[2024] FedCFamC1F 365
•31 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gin & Hing (No 11) [2024] FedCFamC1F 365
File number MLC 4528 of 2010 Judgment of WILSON J Date of judgment 31 May 2024 Catchwords FAMILY LAW – COSTS – costs after very lengthy parenting trial. Legislation Family Law Act 1975 s 117
Federal Circuit and Family Court of Australia Act 2021
Cases cited Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Carr v Western Australia (2007) 232 CLR 138
Charisteas v Charisteas (2021) 273 CLR 289
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Commonwealth v Baume (1905) 2 CLR 405
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577
Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Director of Public Prosecutions for Victoria v Le (2007) 232 CLR 562
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fitzgerald v Fish (2005) 33 FamLR 123
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364
Gin & Hing (No 2) [2024] FedCFamC1A 59
Gin & Hing (No 3) [2022] FedCFamC1F 759
Gin & Hing (No 4) (2020) FamCA 746
Gin & Hing (No 4) [2022] FedCFamC1F 76o
Gin & Hing (No 5) [2022] FedCFamC1F 63
Gin & Hing (No 6) [2023] FedCFamC1F 68
Gin & Hing (No 7) [2023] FedCFamC1F 116
Gin & Hing (No 8) [2023] FedCFamC1F 954
Gin & Hing (No 9) [2024] FedCFamC1F 29
Gin & Hing [2021] FedCFamC1F 192
Gin & Hing [2024] FedCFamC1A 36
Johnson v Johnson (2000) 201 CLR 488
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322
Northern Territory v Collins (2008) 235 CLR 619
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419
Re JRL; ex parte CJL (1986) 161 CLR 342
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Taylor v Public Service Board (NSW) (1976) 137 CLR 208
Vakauta v Kelly (1989) 167 CLR 568
Webb v R (1994) 181 CLR 41
Yanner v Eaton (1999) 201 CLR 351
Yarmirr v Northern Territory (2001) 208 CLR 1
Division Division 1 First Instance Number of paragraphs 47 Date of hearing 17 May 2024 Place Melbourne Counsel for the applicant Ms B Tulloch Solicitors for the applicant MST Lawyers Counsel for the respondent Mr F Dixon SC Solicitors 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
31 MAY 2024
THE COURT ORDERS THAT –
1.The father must pay the mother’s costs of and incidental to this proceeding from 8 May 2019 to 22 November 2023.
2.The costs assessed in order one above must be assessed by a registrar on a party/party basis such assessment to be completed by 29 July 2024.
3.The mother’s costs of and incidental to the father’s unsuccessful stay application must be assessed by a registrar on a party/party basis and once assessed, paid by the father within 30 days of the registrar assessing those party/party costs.
4.The father’s application in a proceeding dated 20 May 2024 is dismissed.
5.The father must pay the mother’s costs of $3,000 of and incidental to the father’s 20 May 2024 application.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
On 22 November 2023 I handed down reasons for judgment[1] following trial that ran from 8 May 2019 to 22 November 2023, more than 30 days in all.
[1] Gin & Hing (No 8) [2023] FedCFamC1F 954.
On 2 February 2024 I refused the father’s orders to stay the orders made following trial pending appeal.[2]
[2] Gin & Hing (No 9) [2024] FedCFamC1F 29.
The mother has applied for an order that the father pay the mother’s costs of and incidental to the proceeding in the period 8 May 2019 to 22 November 2023.
Absent an order being made pursuant to s 117(2) of the Family Law Act, under s 117(1) of the Family Law Act each party’s costs of the proceeding is ordinarily borne by that party.
In this costs application, the mother earlier sought an order requiring the father to pay her the sum of $1,004,441 pursuant to s 117(2) of the Family Law Act. She quantified that sum in the following manner –
(a)solicitors’ fees $395,498
(b)counsels’ fees $534,957
(c)mediator’s fees $7,564
(d)Dr N’s fees $6,364
(e)transcription fees $27,830
(f)interpreter’s fees $4,458
(g)court listing fees $27,780
$1,041,441
In written submissions in support of the mother’s application for costs as set out immediately above, the sum of $1,041,441 was said to relate to 33 (sic) days of trial, 13 mentions, and six judgment delivery appearances for the receipt of reasons upon judgment being handed down.
When this proceeding was commenced before me at trial, I was told that the duration of the trial would be five days. It ran for 31 days, five days of which were consumed by mostly pointless cross-examination by the father of Dr N.
The mother originally based her application for costs on several grounds. Those included s 117(2A)(c) (conduct of a party) and s 117(2A)(e) (whether a party had been wholly unsuccessful) being the principle ones. She needed to invoke only one subsection of s 117(2A) to enliven her costs application under s 117(2).[3]
[3] Fitzgerald v Fish (2005) 33 FamLR 123.
Ultimately the father failed in his primary application for equal shared parental responsibility for the child. I ordered the mother to have sole parental responsibility for the child.
A large amount of time during the trial was devoted to the father’s assault upon Dr N. The father consented on the first day of the trial to each of Dr N’s reports being admitted into evidence. He was represented by senior counsel at the time. At a later stage of the trial, the father contended that only some of Dr N’s reports should be considered by me because, so he contended, Dr N was biased against him. He later abandoned that contention but only after Dr N had spent five days being cross-examined by the father. Counsel for the mother submitted that the mother had been put to “extensive extra costs”[4] by reason of that conduct.
[4] Paragraph 12 of the mother’s written submissions on costs.
Next, the mother contended that the first five days of the trial (that is to say, the full period estimated for the duration of the trial) was consumed by the mother being cross-examined by senior counsel then appearing for the father on alleged translations of alleged transcripts of audio recordings of conversations between the mother and the child in issue in this proceeding. Counsel for the mother submitted that those transcripts were incomplete and in certain respects the entries on the so-called transcripts were made on the instructions of the father. The evidence given by one witness, Mr F, on 28 October 2020 revealed that Mr F had responded to instructions by the father for Mr F to omit parts of the audio and Mr F said he added words as directed by the father. Mr F contended the translation was not a faithful translation. He said he did not ‘translate 100 per cent”.
On behalf of the mother, Mr Dixon SC submitted that the father deliberately misled the court by putting forward transcripts of recordings that the father knew to be incomplete or altered by the translator on the father’s instructions. Mr Dixon submitted that the father indicated to the court that the alleged transcriptions were accurate when in truth they suffered from significant defects of completeness and accuracy.
The mother was cross-examined at length on transcripts that were inaccurate and incomplete. Mr Dixon submitted that the father engaged in deliberate and intentional non-disclosure by putting forward the inaccurate and incomplete transcriptions of the recordings. Mr Dixon also submitted that the mother was put to considerable expense to expose the errors in the transcriptions authorised by the father and to procure a later, improved, accurate version of the transcribed recordings.
To my way of thinking, there is considerable force in Mr Dixon’s submissions just narrated.
The father persisted in advancing contentions that the transcriptions of the recordings were accurate. He did not disclose that he directed Mr F to selectively omit or add aspects, including commentary, to the transcriptions. It must not be overlooked that the father was at all relevant times a professional as well as a litigant. He owed duties of candour and comportment to the court. In my view he fell well short of properly discharging the duties he owed to the court when putting into evidence transcriptions of the recordings which were erroneous, incomplete or inaccurate in circumstances that he knew the transcriptions to be defective in that manner.
Other aspects of the father’s conduct of this proceeding were the subject of various rulings. Those included –
(a)his application concerning transcripts;[5]
(b)his application for leave to adduce further evidence;[6]
(c)his application for leave to reopen his case;[7]
(d)his application to issue subpoenae;[8]
(e)his application in respect of apprehended bias and recusal;[9]
(f)his application in respect of estoppel and waiver;[10] and
(g)his application raising issues of practice and procedure.[11]
[5] Gin & Hing (No 4) [2020] FamCA 746.
[6] Gin & Hing [2021] FedCFamC1F 192.
[7] Gin & Hing (No 3) [2022] FedCFamC1F 759.
[8] Gin & Hing (No 4) [2022] FedCFamC1F 760.
[9] Gin & Hing (No 5) [2022] FedCFamC1F 63.
[10] Gin & Hing (No 6) [2023] FedCFamC1F 68.
[11] Gin & Hing (No 7) [2023] FedCFamC1F 116.
The father often made submissions that were bereft of any legal or factual foundation. I pointed that out in paragraph 18 of my ruling in relation to waiver and estoppel.[12] It is utile to repeat what I there said in the following terms –
18The father submitted that [Dr N] was bound by a duty to fully inform her clients. He said [Dr N] failed to comply with such a duty. I raised with the father the question pursuant to which obligation that duty allegedly rose. He mentioned some rule of practice that is not presently in evidence. There was no foundation in that submission. It bore the hallmark of desperation without legal or evidentiary provenance. The father said that [Dr N] will suffer no prejudice if the father is allowed to question [Dr N]. I disagree. [Dr N] expressly outlined to the parties the matters that were of concern to her prior to her 16 November letter, hence her requirement for the parties to give the assurance that they would take no point thereafter in respect of apprehended bias. The father was today endeavouring to act entirely contrary to the assurance he gave to [Dr N] and upon which she proceeded subsequent to 16 November 2017. In my view, he is met squarely with an estoppel that prevents him from resiling from his promise recorded in the 16 November 2017 letter.
[12] Gin & Hing (No 6) [2023] FedCFamC1F 68.
Counsel for the mother pointed out that a costs order made by me on 5 October 2022 was assessed by a registrar in the sum of $17,287.38, which sum has not been paid and which, with interest, amounted to $19,030.09 as at 25 January 2024. Mr Dixon SC contended that these reasons in respect of costs do not include that amount. No doubt that explained why Mr Dixon pointed out that this costs application does not incorporate any duplication in relation to costs already ordered.
When the father pursued his application in respect of apprehended bias, he frankly admitted that he was unaware of any of the applicable High Court authorities on point,[13] many of which I brought to the father’s attention. On 18 February 2022 I told the father that it was most unsatisfactory for him to make such a serious allegation at what then seemed to be the dying phases of the trial of this proceeding. I told the father that I would not permit this case to become an unstructured free-for-all.
[13] Those included Charisteas v Charisteas (2021) 273 CLR 289, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, Re JRL; ex parte CJL (1986) 161 CLR 342, CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 , Vakauta v Kelly (1989) 167 CLR 568, Johnson v Johnson (2000) 201 CLR 488, Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 and Webb v R (1994) 181 CLR 41.
On 17 May, the mother altered her application for costs. She changed her application for costs to be assessed on an indemnity basis[14] to costs on a party/party basis. Prior to changing bases, no submissions were directed to the applicability of the principles espoused in Colgate-Palmolive to the circumstances of this case.
[14] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 364.
If a costs order is to be made at all, in my view two consequences must follow. First, all such costs must be assessed by a registrar within a prescribed period and any complications must be referred to me if the registrar is unable to resolve the complication. Second, all such costs to be assessed by the registrar must be assessed on a party/party basis.
In my view, having regard to the terms of s 117(2A)(c) and (e) of the Family Law Act, an order for costs should be made against the father requiring the father to pay the mother’s costs of and incidental to this proceeding from 8 May 2019 to 22 November 2023. Those costs must be assessed by a registrar of this court by 29 July 2024. The basis on which the costs assessment must be undertaken is party/party. I now turn to my reasons for making that order.
Section 117(2A)(c) of the Family Law Act provides one statutory foundation for the making of a costs order under s 117(2) that deviates from the more customary costs order under s 117(1). The terms of s 117(2A)(c) are broad, reflective it seems to me of a deliberate legislative intendment to authorise a costs order being made under s 117(2) if any of the circumstances set out in s 117(2A) are enlivened in the circumstances of a particular case. Section 117(2A)(c) specifically identifies as non-exhaustive illustrations of the conduct of the parties that conduct attracting a costs order may relate to –
(a)pleadings;
(b)particulars;
(c)discovery;
(d)inspection;
(e)directions to answer questions;
(f)admissions of fact;
(g)production of documents; and
(h)similar matters.
Embedded in the verbiage of s 117(2A)(c) is the phrase “without limiting the generality of the foregoing” immediately after the opening words of the subsection “the conduct of the parties to the proceedings in relation to the proceedings including…”. In other words, no limitation is to be placed on the words “conduct of the parties… in relation to the proceedings”. The specific matters mentioned, that is to say those set out in subparagraphs (a) to (h) of the immediately preceding paragraph of these reasons are illustrations yet those matters are not exhaustive. For example, prolix and ill-directed cross-examination is not mentioned in s 117(2A)(c) yet it bears directly upon “conduct of the parties…in relation to the proceeding”. Pursuing a particular factual enquiry that turned out to be purposeless in the overall is not mentioned in s 117(2A)(c) yet it bears directly on the “conduct of the parties…in relation to the proceeding”. Applying principles of statutory construction as adumbrated by the High Court,[15] the task of construing legislation is grounded by the words actually used in the statute when read in context. Section 117(2A)(c) refers to indicia of conduct but in a non-exhaustive manner. The words “conduct of the parties to the proceeding” are followed by the words “including without limiting the generality of the foregoing” then specific acts or events are enumerated. To my way of thinking, the words “conduct of the parties” are to be accorded their ordinary interpretation and that the generality of those words are not to be limited by the inclusion of the specific acts or matters identified in the body of the subsection. Pursuing a point later abandoned, such as the father’s endeavour to demonstrate bias on the part of Dr N seemed to me to be “conduct of a party”, on its proper construction. Pursuing cross-examination having no forensic purpose is likewise “conduct” for the purposes of s 117(2A)(c), Making submissions that had no factual or legal foundation was likewise “conduct” for the purpose of s 117(2A)(c). Failing to concede a point that ought properly to have been conceded is likewise “conduct” for the purpose of s 117(2A)(c).
[15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Taylor v Public Service Board (NSW) (1976) 137 CLR 208, Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 , K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, Commonwealth v Baume (1905) 2 CLR 405, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, Yanner v Eaton (1999) 201 CLR 351, Yarmirr v Northern Territory (2001) 208 CLR 1, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72, Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, Carr v Western Australia (2007) 232 CLR 138, Director of Public Prosecutions for Victoria v Le (2007) 232 CLR 562 and Northern Territory v Collins (2008) 235 CLR 619.
The transcription of the audio files calls for specific attention. It must not be overlooked that the father was heavily involved in the production of the transcription of the 13 sound files on which the mother was cross-examined. The father directed Mr F about information to be included and on information to be deleted. The transcriptions became the subject of a heated contest in respect of their authenticity and accuracy. The fact that the father put the transcriptions into evidence as part of his case in a manner that was inaccurate was “conduct” for the purpose of s 117(2A)(c). The fact that the father directed Mr F to selectively edit the transcripts thereby denying the court the opportunity of learning about the totality of the event purportedly recorded and transcribed was also “conduct” for the purpose of s 117(2A)(c). Only when it became blindingly apparent that the audio files needed to be transcribed and translated by a qualified person was the authenticity and accuracy of the transcriptions assured. The version as later transcribed and translated became what I called “the authorised version”. A very large amount of time and effort was lost by reason of the father persisting with his endeavour to rely on inaccurate, unreliable and doctored transcriptions. In my view that is “conduct” for the purpose of s 117(2A)(c).
In my view this case should have been conducted by the father in a vastly more efficient manner. The trial ran for 31 days. The five day original estimate was nearer the true duration. I entertain no doubt whatever that the case was prolonged by wasteful conduct by the father. It is true that he was a litigant in person. But he was a qualified professional. He was bound by the overarching obligations set out by the Federal Circuit and Family Court of Australia Act and in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Very many times Mr Dixon SC announced that the mother would apply for costs against the father by reason of his conduct of the case. In Gin & Hing (No 7)[16] I observed that part of the delay in the forward progress of this case lay in the manner in which the father had conducted the case. At paragraph seven of that decision I said the following –
“The case has gone long enough. The father should have been more efficient in his presentation. He has an argumentative and largely dogmatic style of presentation of his submissions. He will not abide by intimations from me that I have absorbed his points and he need not repeat them. Instead, he goes to yet further illustrations of the point which he says he, on the one hand, does not need to make in view of my intimation, yet doggedly pursues each point over and over. He has had more than enough time in the context of a case that has been around longer than it should have been.”
[16] [2023] FedCFamC1F 116.
In my view, the father’s conduct of the case generally, his argumentative and dogmatic presentation of the case generally, his insistence upon repeating points already made, his refusal to concede propositions that ought to have been conceded all contributed to the prolongation of this trial. The mother has been put to substantial costs and inconvenience by reason of that. She should not have to bear her own significant costs by reason of the father’s inefficient and disorganised presentation of this case. In my view, under s 117(2A)(c) an order that the father pays the party/party costs of the mother from 8 May 2019 to 22 November 2023 is warranted. I make the order recorded earlier in these reasons.
As the second basis for seeking a costs order the mother relied on s 117(2A)(e), contending that the orders ultimately pronounced were in accordance with the orders she sought on and from February 2023. There is merit in that contention.
The father instructed junior counsel to appear on 17 May so as to rely on written submissions. Relevantly distilled, those submissions included the following –
(a)the father was not wholly unsuccessful in the trial so no costs order should be made against him;
(b)if costs are to be ordered at all, no ground exists for ordering them on an indemnity basis;
(c)the whole of the trial should not be the subject of a costs order as the father did not waste the whole trial; and
(d)the father should not be ordered to pay senior counsel’s fees because this was not a two counsel case.
Taking first the father’s contention that the father was not wholly unsuccessful, it may be true that not every proposition sought in the father’s latest version of his response was contested yet the main point he fought and on which he failed was an order for equal shared parental responsibility. Dr N was opposed to such a proposal. The father kept Dr N in the witness box for days in an endeavour to show that Dr N was biased against the father. He later abandoned that accusation. The father failed to show an entitlement to equal shared parental responsibility. He failed on the largest issue in the case.
Taking next the father’s contention that costs should not be ordered on an indemnity basis, I agree. Mr Dixon SC did not submit otherwise on 17 May 2024.
As to the father’s third proposition, in my view it is part of the point to which s 1172A(c) is directed. The father conducted the trial of this proceeding in a manner that substantially prolonged the trial. I have essayed above the manner in which he did so. It is one thing for a litigant in the shoes of the mother to face a trial expecting it to be conducted efficiently and to place herself in the best position possible by retaining silk. But it is an altogether different matter to be faced with a trial conducted with the chaotic approach that the father displayed and on which I wrote in the previous decisions in this case. A litigant should not be permitted to run his case in the manner the father did with impunity.
As to the fourth basis for opposing the mother’s costs application, I reject the proposition that the mother’s costs should be limited to the fees of her junior counsel. I do not agree that this was anything but a two counsel case. Until the father became unwilling to retain his own silk and junior, he fought the case with his own silk and junior, obviously conceding that the case was of sufficient factual and legal complexity as to warrant two counsel. In the running of the trial, Mr Dixon SC’s submissions were of particular utility, often correcting factual errors or legal propositions advanced by the father. This was a case warranting two counsel.
STAY APPLICATION
The mother also sought costs on the father’s unsuccessful stay application[17] made after reasons following trial were pronounced in Gin & Hing (No 8).[18] The mother relied on s 117(2A)(e) contending that the father was wholly unsuccessful on that application and so her costs should be paid. She sought her senior counsel’s fees of $31,500 and her solicitor’s fees of $7,000.
[17] Gin & Hing (No 9) [2024] FedCFamC1F 29.
[18] [2023] FedCFamC1F 954.
In aggregate, the mother’s costs application on the unsuccessful stay application was $38,500. That was a composite fee in the nature of solicitor client costs. Any costs to be ordered in respect of the unsuccessful stay application should not be ordered on an indemnity basis. To do so would, in my judgment, be unjust. As a party aggrieved by my decision at trial, he had no option but to apply to me as the trial judge for a stay. To my mind, his application for the stay and the grounds of it were wrongheaded. That said, he has been able to persuade a single judge exercising the powers of a full court to entertain one aspect of his appeal.[19]
[19] Gin & Hing [2024] FedCFamC1A 36 (20 March 2024).
The mother relied on the decision in Fitzgerald v Fish[20] to support the making of an order in respect of costs based on one provision only of s 117(2A), in this instance s 117(2A)(e) – his being wholly unsuccessful on the stay application.
[20] (2005) 33 Fam LR 123.
There can be no dispute that the father was, in fact, wholly unsuccessful in obtaining a stay. He was amenable to an order for costs under s 117(2). The mother invoked s 117(2A)(e). She did so quite properly.
I order the mother’s costs of and incidental to the father’s unsuccessful stay application be assessed by a registrar on a party/party basis and once assessed, paid by the father within 30 days of the registrar assessing those party/party costs.
THE FATHER’S PURPORTEDLY ADDUCING FURTHER MATERIAL AFTER MAY COSTS DEBATE
Without leave, on 20 May 2024 the father sent an email to registry staff (not to my associate) together with –
(a)an unissued application in a proceeding for “leave to file and rely on the amended and second affidavit on 20 May 2024 and the additional submissions filed 20 May 2024 with respect to the mother’s costs application” (his words); and
(b)an affidavit received by the registry at 9.49am on 20 May 2024 being the father’s most recent affidavit and exhibits thereto.
On 21 May 2024 at 3.40pm the mother’s senior counsel emailed his submission in support of the summary dismissal of the father’s application in a proceeding.
The first document emailed by the father was described as “letter of urgency”. No leave was given to send it. It was in the following terms (with errors in the original) –
I am trying to confirm that additional affidavit and submissions filed on 20 May 2024 will be accepted and considered by the Honourable Justice Wilson with respect to a cost application made by the Mother.
The hearing was on 17 May 2024 and His Honour indicated that he would have a decision ready within 1 week or so.
I am seeking that His Honour to consider the affidavit and additional submissions before a decision is made. This is why it is urgently.
I am not sure if His Honour has the discretion to accept the material and submission or is bound to accept and consider them before the decision is made. This is why I am making this application to ensure it.
Any cost order made would likely to bankrupt me and cause significant harm my me and my three children.
Thank you for your kind assistance in this matter.
Kind regards
[Mr Gin]
To answer the father’s uncertainty in the fourth paragraph of his letter, I am not bound to accept his latest rash of submissions and affidavits. He filed those without leave. No order was made permitting him to file an application in a proceeding on 20 May 2024 or a further affidavit, this one made on 20 May 2024. The costs debate concluded on 17 May. All relevant affidavits and submissions had been filed and served prior to 17 May. Somehow and for some reason the father took it upon himself to unilaterally prepare court documents after I announced that I would consider my decision. Such an approach was entirely consistent with the shambolic and chaotic manner in which he conducted the trial itself. It must not be overlooked that he has applied to the full court for leave to adduce new evidence that was not adduced before me.
In his 20 May 2024 affidavit, the father wanted to put before me on his costs application a variety of issues. He asserted in paragraph three of that affidavit that he heard his counsel make submissions and that he believed important points were missed. Aside from the fact that a party is bound by the way he, she or it conducts his, her or its case, only with leave should I entertain whatever he wanted me to receive in his 20 May 2024 affidavit. He advanced several propositions, that were in reality submissions, in his 20 May 2024 affidavit. They included –
(a)his contention that the trial “can be considered in two parts”, namely, the first being “prior to [Dr N’s] cross-examination” and the second being “after [Dr N] was due to be cross-examined” (his words);
(b)his contention “that the conduct of the trial became inefficient after [Dr N] was due to be cross-examined (sic) and during her cross-examination because she was a person who was at all material time (sic) during her cross-examination a risk and danger to the public”;
(c)he believed he achieved success in cross-examining Dr N;
(d)he sought to set up some conflict in Dr N’s relative working for the mother’s solicitors;
(e)he said Mr Dixon SC was obliged to reveal to me that in mid-2023 Dr N had been suspended from practice;
(f)in early 2024 he filed a complaint with the Legal Services Board about the mother’s solicitors;
(g)his child, he says, is suffering from a deterioration in learning;
(h)he is a full time student and is heavily in debt; and
(i)he asked for me to defer my decision on costs until after AHPRA has provided further evidence.
The mother’s submissions in opposition to the father adducing new evidence following the close of debate on costs were short. They included the following –
(a)the father’s application in a proceeding filed 20 May 2024 should be dismissed;
(b)the father’s application in a proceeding is an abuse of process; and
(c)twice[21] members of the full court have held that the father is the author of his own difficulties.
[21] Gin & Hing [2024] FedCFamC1A 36 and Gin & Hing (No 2) [2024] FedCFamC1A 59.
In my view, the father once again wishes to have the last word in this debate. Finality in litigation is a concept alien to the father. He should not be permitted to endlessly perpetuate this litigation. Far from points being missed, as he asserted, in my view Ms KK (his counsel on 17 May 2024) conducted herself with distinction in arguing a difficult case. The father self‑evidently wants the last word. He should not have it. I say that because –
(a)the full court has granted the father an indulgence on the path of adducing material concerning Dr N;
(b)I reject his contention that the child is suffering in some way that is attributable to Dr N; and
(c)he adduced no evidence at all about the financial impact of a costs order, and instead engaged in hyperbole, surmise and conjecture, which I reject.
I dismiss the father’s application in a proceeding dated 20 May 2024 and order him to pay the mother’s costs of $3,000 of an incidental to that application.
ORDERS
The orders are recorded in the early paragraphs of these reasons.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 31 May 2024
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