Jingyi & Chao (No 3)

Case [2023] FedCFamC1F 841

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Jingyi & Chao (No 3) [2023] FedCFamC1F 841

File number: SYC 3653 of 2021
Judgment of: AUSTIN J
Date of judgment: 3 October 2023
Catchwords: FAMILY LAW – COSTS – Application by husband for costs against the wife and her solicitor following dismissal of the wife’s Application-Contempt – Where the husband contended the wife’s solicitor’s conduct was unreasonable and should be held personally liable for his costs – Where the wife’s solicitor’s conduct was not so unreasonable as to engage her liability for costs – Where the wife’s Application-Contempt was wholly unsuccessful – Order made for the wife to pay the husband’s costs on a party/party basis in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) s 112 and s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 56, 67, 68, 76

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.15 and r 12.17
Cases cited:

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26

Beamish & Coburn (dec’d) (2021) FLC 94-005; [2021] FamCAFC 20

Cassidy v Murray (1995) FLC 92-633; [1995] FamCA 91

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44

Sobey v Nicol and Davies (2007) 245 ALR 389; [2007] FCAFC 136

Z (a solicitor) & Limousin (2010) FLC 93-433; [2010] FamCAFC 59
Division: Division 1 First Instance
Number of paragraphs: 35
Date of hearing: 3 October 2023
Place: Newcastle (via Microsoft Teams)
Counsel for the Applicant: Mr Jackson
Solicitor for the Applicant: JC Legal Practice
Counsel for the Respondent: Mr Condon SC & Mr Southwood
Solicitor for the Respondent: Juris Cor Legal

ORDERS

SYC 3653 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS JINGYI

Applicant
AND:

MR CHAO

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

3 OCTOBER 2023

THE COURT ORDERS THAT:

1.The applicant shall pay the respondent’s costs of and incidental to the Application-Contempt, finalised on 22 August 2023, fixed in the sum of $13,500.

2.Otherwise, the Application in a Proceeding filed on 20 September 2023 and the Response to an Application in a Proceeding filed on 29 September 2023 are dismissed.

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…

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Details
AGLC
Jingyi & Chao (No 3) [2023] FedCFamC1F 841
Case
[2023] FedCFamC1F 841
Decision Date

CaseChat Overview and Summary

In the case of Jingyi & Chao (No 3), the Federal Circuit and Family Court of Australia dealt with an application for costs made by the husband, Mr Chao, against the wife, Ms Jingyi, and her solicitor following the dismissal of Ms Jingyi's application for contempt. Mr Chao sought an order that the wife's solicitor be held personally liable for his costs due to what he perceived as unreasonable conduct. The wife, represented by her solicitor, opposed the application on the grounds that the conduct in question did not warrant personal liability and that the application was an unnecessary adjunct to the main matrimonial proceedings.

The court had to determine whether the wife's solicitor's conduct was so unreasonable as to engage personal liability for costs and whether it was appropriate to make an order against the solicitor personally or vicariously against the incorporated legal practice. The court also had to consider the implications of delaying the costs dispute on the efficient administration of justice.

In its decision, the court found that while the wife's application for contempt was wholly unsuccessful, the conduct of the solicitor did not reach the threshold of unreasonableness necessary to impose personal liability. The court noted that the costs dispute, as an adjunct to the contempt proceedings, was a separate matter that should not unduly delay the central matrimonial cause. Consequently, the court dismissed the application for costs against the solicitor and instead ordered the wife to pay the husband's costs on a party/party basis, fixed in a sum of $13,500. The court also dismissed other procedural orders sought by the husband.

Orders

Orders of the court

SYC 3653 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS JINGYI

Applicant

AND:

MR CHAO

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

3 OCTOBER 2023

THE COURT ORDERS THAT:

1. The applicant shall pay the respondent’s costs of and incidental to the Application-Contempt, finalised on 22 August 2023, fixed in the sum of $13,500.

2. Otherwise, the Application in a Proceeding filed on 20 September 2023 and the Response to an Application in a Proceeding filed on 29 September 2023 are dismissed.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Those will be matters for the Full Court to ponder, but such considerations tend to militate against the delay which would be caused by the adjournment or stay of the costs dispute.The costs application and evidence The Application in a Proceeding filed on 20 September 2023, upon which the respondent moves, seeks this relief (in summary):(a)procedural orders fixing the hearing several weeks ahead and setting a program for the parties to file written submissions (Orders 1 to 4);(b)costs order against the applicant’s solicitor (Order 5);(c)alternatively, costs order against the applicant (Order 6); and(d)any other order the Court thinks appropriate (Order 7). The Application was supported by an affidavit filed on 20 September 2023 by the respondent’s solicitor and by the respondent’s financial statement filed on 19 January 2023. The applicant sought the relief set out in her Response to an Application in a Proceedings filed on 29 September 2023, in support of which she relied upon her financial statement filed on 13 December 2022 and her affidavit filed on 29 September 2023. The applicant’s solicitor did not separately rely upon any evidence. The respondent and the applicant both filed written submissions.Procedural orders The application for the procedural timetable is dismissed. The Application was fixed for hearing today and should be heard promptly today. The applicant and her solicitor were served with the application and supporting affidavit well in advance of the appointed hearing, so they were not surprised by the nature of the application or the evidence adduced in support of it. The parties were sufficiently prepared to have filed written submissions in readiness for the hearing, so the proposed timetable to do so was superfluous. The Court is obliged to despatch its business as quickly, inexpensively and efficiently as possible, which objective the parties and their lawyers must help achieve (s 67 and s 68 of the FCFCA Act). The contempt proceedings were an adjunct to the financial cause still being litigated between the spouses under Pt VIII of the Act and this costs dispute is now an adjunct to the contempt proceedings, so it strays some distance from the central matrimonial cause and ought not be given a life of its own. Tails cannot be permitted to wag dogs (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [58]).Costs against the applicant’s solicitor The respondent’s principal application for costs was brought against the particular solicitor who represented the applicant (instructing counsel) in the contempt proceedings. The solicitor on record for the applicant is an incorporated legal practice, not the individual solicitor against whom the costs application is brought. The respondent contended it was appropriate to bring the application against the solicitor personally rather than the incorporated practice vicariously, which proposition neither the applicant nor the solicitor disputed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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