Hsiao v Fazarri

[2021] HCATrans 105

[2021] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M137 of 2019

B e t w e e n -

HSIAO

Appellant

and

FAZARRI

Respondent

KIEFEL CJ
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 JUNE 2021, AT 10.04 AM

Copyright in the High Court of Australia

KIEFEL CJ:   On 14 October 2020, proceedings between the appellant and the respondent were disposed of by a Court constituted by Justices Bell, Keane, Nettle, Gordon and me.  The Court ordered that the appeal be dismissed with costs.

On 29 January 2021, the appellant filed a summons seeking to reopen those orders and in their place sought orders that the appeal be allowed and that the respondent pay the appellant’s costs of the proceedings in this Court and in the courts below. Justices Keane, Gordon and I direct that the summons be determined without an oral hearing pursuant to rule 13.03.1 of the High Court Rules 2004 (Cth). Justices Keane, Gordon and I would dismiss the summons. I publish our joint reasons.

The orders of the Court are:

1.The summons filed by the appellant on 29 January 2021 is dismissed.

2.Under rule 6.05 of the High Court Rules 2004 (Cth) the affidavit sworn by the appellant on 31 January 2021 be removed from the file.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

On 14 October 2020, the Court disposed of proceedings, on appeal from the Full Court of the Family Court of Australia, between the appellant and the respondent[1].  In doing so, the Court dismissed the appellant’s appeal and ordered the appellant to pay the respondent’s costs of the appeal (“the Orders”).  The Orders have not been passed and entered. 

[1]Hsiao v Fazarri (2020) 94 ALJR 961; 383 ALR 446.

By a summons filed on 29 January 2021, the appellant seeks to reopen the Orders and, in their place, seeks an order that the appeal to this Court be allowed, and further, orders that the respondent pay the appellant’s costs of the proceedings in this Court and in the courts below.  The summons was supported by an affidavit sworn by the appellant on 31 January 2021.  The respondent filed a response on 20 April 2021.  The appellant then filed a reply on 17 May 2021 and an amended reply on 18 May 2021.  The respondent opposes the orders sought by the appellant.  Both parties are now self‑represented and both request that the appellant’s application by summons be determined without listing it for hearing. 

The applicable principles for reopening orders of this Court are well established.  “The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded ‘on a misapprehension as to the facts or the law’, where ‘there is some matter calling for review’, or where ‘the interests of justice so require’”[2].  A heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required, without fault on their part[3].  Those principles recognise competing objectives - finality of litigation which reinforces the final orders and their binding nature and, on the other hand, that accidents and oversights can sometimes occur which, in exceptional cases, require to be remedied. 

[2]De L v Director‑General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 at 215 (footnotes omitted).

[3]De L (1997) 190 CLR 207 at 215, citing Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 303.

This is not a case in which to permit reopening.  There is nothing in the material filed by the appellant to suggest, let alone establish to the requisite standard, that the Court proceeded on a misapprehension as to the facts or the law, that there is some matter calling for review or that the interests of justice require the Court to reopen the Orders.  The appellant’s contention that she was denied procedural fairness is rejected.  Prior to the hearing, detailed written submissions were filed on behalf of the appellant signed by senior counsel and two junior counsel.  The same counsel appeared for the appellant at the hearing of the appeal.  None of the other factual or legal matters raised by the appellant has any merit.  Each was addressed during the course of the hearing or is scandalous and irrelevant.

The appellant’s application to reopen the costs aspect of the Orders is also rejected.  The power to award costs is a discretionary power that must be exercised judicially[4].  The general principle is that the successful party is entitled to their costs, unless there is conduct on the part of the successful party in the litigation that would justify a different outcome[5].  In the appeal, there was nothing that might have justified refusing the respondent an order for his costs.

[4]Northern Territory v Sangare (2019) 265 CLR 164 at 172-173 [24].

[5]Northern Territory v Sangare (2019) 265 CLR 164 at 173 [25].

Pursuant to r 13.03.1 of the High Court Rules 2004 (Cth), we direct that the summons be determined without an oral hearing. The appellant’s summons is dismissed. Under r 6.05 of the High Court Rules, the appellant’s affidavit should be taken off the file because it contains scandalous matter. 

AT 10.05 AM THE MATTER WAS CONCLUDED