Gin & Hing (No 4)

Case [2024] FedCFamC1A 247

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Gin & Hing (No 4) [2024] FedCFamC1A 247

Appeal from: Gin & Hing (No 11) [2024] FedCFamC1F 365
Appeal number: NAA 157 of 2024
File number: MLC 4528 of 2010
Judgment of: AUSTIN, HARPER & STRUM JJ
Date of judgment: 19 December 2024
Catchwords: FAMILY LAW – APPEAL – Where the appellant appeals from a costs order made against him arising from parenting proceedings – Where the respondent conceded the appeal in part – Where the remaining grounds allege bias and errors in reasons – No bias or errors identified – Application in an appeal to adduce further evidence – Where the material the appellant sought to adduce was not relevant to the grounds of appeal – Application dismissed – Appeal allowed in part – Respondent’s application for costs remitted for rehearing – Costs certificates granted.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 11K, 60CC, 117

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 12.13, 12.17
Cases cited:

Bruce & Bruce (No 3) [2024] FedCFamC1A 33

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Gin & Hing (No 3) [2024] FedCFamC1A 124

Gin & Hing (No 8) [2023] FedCFamC1F 954

Gin & Hing (No 9) [2024] FedCFamC1F 29

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Harris and Harris (1991) FLC 92-254; [1991] FamCA 124

House v The King (1936) 55 CLR 499; [1936] HCA 40

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328

New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

Paysen & Laukien (2020) FLC 93-960; [2020] FamCAFC 101

Prantage & Prantage (Costs) [2014] FamCA 850

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Saklani & Valder (2023) 68 Fam LR 237; [2023] FedCFamC1A 163

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

Shipton & Garwood (2024) FLC 94-189; [2024] FedCFamC1A 83

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Number of paragraphs: 46
Date of hearing: 12 December 2024
Place: Heard in Melbourne, delivered in Newcastle    
The Appellant: Litigant in person
Counsel for the Respondent: Dr Smith
Solicitor for the Respondent: Clancy & Triado

ORDERS

NAA 157 of 2024
MLC 4528 of…

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AGLC
Gin & Hing (No 4) [2024] FedCFamC1A 247
Case
[2024] FedCFamC1A 247
Decision Date

CaseChat Overview and Summary

The appeal in Gin & Hing (No 4) arose from orders concerning the costs of parenting proceedings between Mr Gin and Ms Hing. The parties, who were married in 2009 and separated in 2010, had one child. The case involved the costs of a lengthy trial, which ran from May 2019 to November 2023, and the costs of Mr Gin's failed application for a stay and his application to reopen the case post-hearing. The court was required to determine whether the primary judge's costs orders were manifestly unjust and whether there was bias or errors in the reasons given for those orders.

The court found that Mr Gin failed to establish that the primary judge acted upon a wrong principle, took account of extraneous or irrelevant matters, or did not properly exercise the relevant judicial discretion. The court noted that it was not enough for Mr Gin to show that a different decision might have been reached on the same facts. Instead, the court had to be "well satisfied that the primary judge was plainly wrong." Mr Gin's claims of bias and errors in the reasons were also rejected as there was no evidence to support these allegations. However, the court allowed the appeal in part as the primary judge had not properly considered certain statutory provisions, which led to the Full Court setting aside the final judgment.

The court allowed the appeal in part, setting aside the costs orders for the trial proceedings but leaving the costs orders for the failed stay application and the application to reopen undisturbed. The costs application was remitted for rehearing by a different judge in conjunction with the rehearing of the parenting proceedings. The appeal was dismissed otherwise, and the respondent was granted costs certificates for the appeal and the rehearing.

Orders

Orders of the court

NAA 157 of 2024

MLC 4528 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR GIN

Appellant

AND:

MS HING

Respondent

ORDER MADE BY:

AUSTIN, HARPER & STRUM JJ

DATE OF ORDER:

19 DECEMBER 2024

THE COURT ORDERS THAT:

1. Appeal NAA 157 of 2024 be allowed in part.

2. Orders 1 and 2 made by the primary judge on 31 May 2024 be set aside.

3. The respondent’s application for the costs of proceedings MLC 4528 of 2010 from 8 May 2019 to 22 November 2023, being the subject of Orders 1 and 2 made on 31 May 2024, be remitted for rehearing together with the rehearing to take place pursuant to Order 4 made on 7 August 2024 in appeal NAA 353 of 2023.

4. The appeal be otherwise dismissed.

5. The Application in an Appeal filed on 14 November 2024 be dismissed.

6. The appellant’s oral application to rely upon an affidavit sworn or affirmed on 11 December 2024 be dismissed.

7. The respondent be granted:

(a) a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in the appeal; and

(b) a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the respondent in respect of the costs incurred by her in relation to the rehearing pursuant to Order 3 above.

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).

Background

Background to the litigation

These orders arise from three separate judgments delivered and published together on 31 May 2024, following a hearing on 17 May 2024: Orders 1 and 2 concerning the costs of the trial leading to the final judgment in the parenting proceedings; Order 3 concerning the appellant’s failed application for a stay pending his appeal from the final judgment; and Orders 4 and 5 dismissing with costs an application made by the appellant on 20 May 2024 seeking leave to rely upon further submissions and another affidavit after the hearing on costs had been concluded on 17 May 2024 (“application to reopen”). We will refer to these judgments collectively as the “costs judgments”. BACKGROUND The parties were married in 2009 and separated either in March or April 2010. There is one child of the relationship. Orders 1 and 2 flow from the delivery of the final judgment on 22 November 2023 (Gin & Hing (No 8) [2023] FedCFamC1F 954). The trial leading to the final judgment ran from 8 May 2019 to 22 November 2023, over more than four years and 30 hearing days, and concerned the parenting orders to be made for the child of the relationship. The appellant appealed the final judgment. On 7 August 2024, after the costs judgments had been delivered, the Full Court allowed the appeal on the single ground that the learned primary judge failed to properly consider s 60CC(3)(d) of the Act and erred in acting upon the views of the child expressed as a 10 year old when she had become a teenager by the time the final judgment was delivered (Gin & Hing (No 3) [2024] FedCFamC1A 124 (“Gin & Hing (No 3)”) at [56]–[59]). However, it is relevant to note that the Full Court at [61] also expressed the view that the primary judge was obliged to take steps to confine cross examination and set aside sufficient hearing time to bring the matter to finality in a much shorter time frame than 30 days over four years.THE APPEAL Section 117 governs the award of costs in proceedings under the Act. An award of costs involves an exercise of judicial discretion. It is well-settled that appeals from discretionary judgments must establish the type of error identified by the High Court in House v The King (1936) 55 CLR 499 at 504–505, such as where the primary judge acts upon a wrong principle, takes account of extraneous or irrelevant matters, mistakes the facts, or does not take into account some material consideration or reaches a plainly unreasonable or unjust outcome. It is not enough that the appellate court may have come to a different decision on the same facts; rather it must be “well satisfied that the primary judge was plainly wrong” and did not properly exercise the relevant judicial discretion (Gronow v Gronow (1979) 144 CLR 513 at 519). Costs orders by a trial judge are peculiarly an exercise of their discretion with which an appellate court will interfere only in rare cases, unless the result is plainly unjust or wrong (Paysen & Laukien (2020) FLC 93-960 at [32]; Harris and Harris (1991) FLC 92-254 at 78,711).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant claims the costs orders are manifestly unjust. He did not explain either in writing or orally why the costs orders for the failed stay application and attempt to reopen were manifestly unjust. Ground 11 fails.CONCLUSION The appeal will be allowed in part, but otherwise dismissed. Orders 1 and 2 made by the primary judge are set aside. Orders 3, 4 and 5 are undisturbed. The costs application the subject of Orders 1 and 2 is remitted for rehearing by a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge in conjunction with the parenting proceedings remitted for rehearing in accordance with Order 4 made on 7 August 2024 in appeal NAA 353 of 2023.

Ratio Decidendi

Legal Principle Established

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