Ivan and Wright
[2012] FamCAFC 127
FAMILY COURT OF AUSTRALIA
| IVAN & WRIGHT | [2012] FamCAFC 127 |
| FAMILY LAW – APPEAL – ORAL APPLICATION FOR COSTS – where the respondent had previously withdrawn her Notice of Appeal and application in an appeal – where as a result of that withdrawal the applicant made an oral application for costs in the sum of $9,500 – where the respondent opposed that application – where the respondent had not paid orders for costs made in the Federal Magistrates Court totalling in excess of $20,000 and it was alleged that she still had an amount of $1.55 million in a managed account being the remaining proceeds of a compensation settlement – where the matter was adjourned to allow the applicant to pursue enforcement proceedings in the Federal Magistrates court – where despite having been given notice of the date and time of the hearing neither party appeared – application for costs dismissed. |
| APPLICANT: | MR IVAN |
| RESPONDENT: | MS WRIGHT |
| FILE NUMBER: | DGC | 298 | of | 2011 |
| APPEAL NUMBER: | SOA | 32 | of | 2011 |
| DATE DELIVERED: | 3 August 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 3 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 4 April 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 449 |
REPRESENTATION
| APPLICANT ACTS IN PERSON: | No appearance |
| RESPONDENT ACTS IN PERSON: | No appearance |
Orders
The oral application for costs made by the applicant on 10 October 2011 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ivan & Wright has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 32 of 2011
File Number: DGC 298 of 2011
| MR IVAN |
Applicant
And
| MS WRIGHT |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is a matter where there is an outstanding application for costs.
I note that neither party has appeared today. I record that the matter has been called and that has still not invoked a response. In those circumstances I propose to deal with the matter in the absence of the parties.
I will not detail the entire history of this matter, but in summary, there was a Notice of Appeal filed by Ms Wright on 2 May 2011 against orders made by Federal Magistrate Phipps on 7 April 2011. There was also an application in an appeal filed by Ms Wright on 11 August 2011 which was in effect an application seeking an extension of time to file a Notice of Appeal against other orders made by Federal Magistrate Phipps namely, those on 20 June 2011 and 12 July 2011.
Early in the piece it was pointed out to Ms Wright that her documents were inadequate both in respect of the Notice of Appeal and the application seeking an extension of time, and there were a number of adjournments granted to enable Ms Wright to file amended documentation. The last such adjournment was on 29 August 2011 and that was an adjournment to 10 October 2011. As I expressed in my remarks made that day, that was the last opportunity for
Ms Wright to file documents, and specifically affidavits, in support of her application filed on 11 August 2011 together with an amended Notice of Appeal.
On 10 October 2011 Ms Wright appeared in person. She indicated to the court that she had taken legal advice and she wished to withdraw her Notice of Appeal filed on 2 May 2011, and her application in an appeal filed on
11 August 2011.
That withdrawal was not opposed by the applicant, but the applicant then made through his counsel an oral application for costs in the total sum of $9,500.
That application for costs was opposed by Ms Wright.
I then heard submissions from Ms Wright on her own behalf and from counsel on behalf of the applicant about the question of costs. It became apparent that there was an issue that was highly relevant to the matter of costs namely, whether Ms Wright still had an amount of $1.55 million in a managed account which was the remaining proceeds of a compensation settlement. The allegation was made by the applicant that Ms Wright still in fact had that amount, but Ms Wright disputed that that was the case.
Given that outside of that significant amount Ms Wright had very little by way of resources to meet any order for costs, the difficulty that created was that it was necessary to determine whether she had those significant funds or not. I was prepared to embark upon that process, unusual though it would have been in that it would have entailed examination and cross-examination, but I was informed by the applicant’s counsel that there were already three outstanding costs orders made by Federal Magistrates against Ms Wright, totalling in excess of $20,000, and that amount had not been paid. Counsel informed me that the applicant intended to take out enforcement proceedings in the Federal Magistrates Court in relation to the non-payment of those amounts. It was agreed that in the context of those enforcement proceedings there would clearly be the opportunity to explore whether Ms Wright did or did not have the significant amount of money that I have earlier referred to. It was considered that that was the more appropriate forum to try and resolve that issue rather than in the context of an appeal.
It was then agreed to adjourn the application for costs pending the finalisation of the foreshadowed enforcement proceedings in the Federal Magistrates Court. Indeed, I observe that Ms Wright opposed the adjournment but nevertheless I determined that that was what should occur.
As I say that was on 10 October 2011, and in addition to dismissing the Notice of Appeal and the application in an appeal as sought by Ms Wright, I adjourned the application for costs to a date to be fixed in the week commencing
13 February 2012.
The matter was then called on in that week and specifically on 17 February 2012. The parties were given, as was necessary, advance notice of the specific date that the application was to be heard but unfortunately Ms Wright did not attend. The applicant did attend but by then he was unrepresented. I was told by the applicant that he still wished to pursue the application for costs and he also still wished to pursue the enforcement proceedings in the Federal Magistrates Court, and he asked for further time to undertake that task. In the absence of Ms Wright I granted that application and I adjourned the application for costs to a date to be fixed at the end of July 2012 or the beginning of August 2012.
As that date approached the court fixed the date for the adjourned hearing, namely today, 3 August 2012 and both parties were advised by the court in the usual way of that listing. I note that correspondence was sent to both parties, initially on 11 July 2012, but unfortunately there was an error in that letter in that it advised the parties that the application for costs was listed on 3 July 2012 instead of 3 August 2012. That was corrected by a subsequent letter sent on 13 July 2012, again to both parties, advising of the correct date namely,
3 August 2012.
I also note that copies of the orders that I made on 17 February 2012 adjourning the matter were also sent to the parties at their addresses for service on file.
To repeat, there has been no appearance by either party today and I propose to finally deal with this matter.
In the circumstances that Mr Ivan the respondent has not attended today to pursue his application for costs, and despite the fact that Ms Wright is not here either, I propose to dismiss the application.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 3 August 2012.
Associate:
Date: 21 August 2012
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