Lawrence v Sammut
[2021] FedCFamC2G 84
•3 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Lawrence v Sammut [2021] FedCFamC2G 84
File number(s): SYG 346 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 3 September 2021 Catchwords: COSTS – Practice and procedure – application to substitute order that applicant pay the respondents’ costs as agreed or taxed with an order that the Court fix those costs – application for leave to reopen orders because of asserted errors – applications dismissed. Cases cited: Lawrence v Sammut [2021] FCCA 1929 Division: Division 2 General Federal Law Number of paragraphs: 10 Date of hearing: 3 September 2021 Place: Sydney The Applicant: Appeared in person, by telephone Solicitor for the Respondents: Ms K McLean of McLean & Associates Solicitors, by telephone ORDERS
SYG 346 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF WAYNE JAMES LAWRENCE
BETWEEN: WAYNE JAMES LAWRENCE
Applicant
AND: ALICE ALEXANDRIA SAMMUT
First Respondent
PAUL WILLIAM CIANTAR
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The applicant’s application to vary order 2 of the orders made on 27 August 2021 is dismissed.
2.The applicant’s application for an order to re-open the orders made on 27 August 2021 on the ground of error is dismissed.
3.The applicant pay the respondents’ costs of the applications referred to in orders 1 and 2, such costs to be set in the amount of $600.00.
THE COURT NOTES THAT:
4.These orders are the orders of the Federal Circuit and Family Court of Australia (Division 2).
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)
On 20 August 2021 I made orders in relation to an application the applicant brought for the setting aside of a bankruptcy notice.[1] In those orders, I directed that the matter be listed before me at 4:00 pm on 27 August 2021 for the purpose of my making the following orders:
(a)The application is dismissed.
(b)The applicant pay the respondents’ costs.
[1] Lawrence v Sammut [2021] FCCA 1929
I ordered that there be liberty to apply before 27 August 2021, if any party wishes to apply for a different costs order to the one referred to in order 1(b) of the orders I made on 20 August 2021. I also made an order extending the time for compliance with the requirements of the bankruptcy notice.
The matter came before me at 4:00 pm on 27 August 2021. The listing was by telephone. The applicant (for reasons it is not necessary to set out, but for reasons which invite no criticism and I make no criticism) was not able to telephone into the hearing, although I allowed the applicant some time to make contact. At the end of the time I thought sufficient, I proceeded to make the orders which the orders of 20 August 2021 required me to make. Accordingly, on 27 August 2021, I ordered that the application be dismissed, and that the applicant pay the respondents’ costs.
After I adjourned the Court (after hearing another matter), there came to my attention an email the applicant sent to the Court. The email, on its face, seemed to address two broad issues. The first was costs; and the other miscalculations or errors the applicant claimed were made in the reasons for judgment I published on 20 August 2021. At my direction, the matter was listed before me at 2:15 pm on 3 September 2021 to deal with the matters raised in the applicant’s email.
In the meantime, the applicant sent a further email to the Court on 30 August 2021. That email set out, among other things, an explanation for the applicant’s not being able to successfully join the hearing of 27 August 2021. I have marked the two emails to which I have referred as exhibit A and exhibit B, respectively.
At the hearing before me today, the applicant made submissions on two broad subjects. The first related to the quantification of the costs that I ordered the applicant pay. The applicant submitted that those costs should be assessed by me, rather than being referred for assessment in the usual way. I discussed with the applicant issues in relation to that application. On any view, the costs that had been incurred in this case would not be insignificant. It was revealed in the course of submissions from the applicant that the respondents’ claim for costs was $60,000, although there was an expression of willingness to negotiate on that figure.
In my view, given the amount of costs claimed, it would be appropriate for the assessment to be done by those officers who have expertise and up-to-date knowledge relevant to the assessment of legal costs. That it would be more appropriate for it to be done in the ordinary way is reinforced by the fact that, even if I were to assess costs, it would be necessary for me to invite the parties to put on evidence about costs; and that would invite evidence being put in a form which would be less efficient and more costly than it would be if the costs are taxed, given the established processes by which costs are taxed. So I am not satisfied that it would be appropriate for me to assess those costs, and therefore I will not make an order varying the order for costs I made on 27 August 2021.
The second subject on which the applicant made submissions related to my reasons for judgment I published on 20 August 2021. The applicant pointed to what he submitted are two errors, one for around $10,000, and one for $122,000. Without suggesting that it would, in fact, be open to me to reconsider what I had done and calculated, I nevertheless asked the applicant to identify where the $122,000 error was. It appears that that is directed to what I had identified in subparagraph (i) of paragraph 48 of my reasons for judgment.
While hearing the applicant’s submissions, I took the liberty of calling up before my screen the tab of exhibit A to which I refer in subparagraph (i) of paragraph 48 of my reasons for judgment. The applicant submitted there was material to establish that $122,000 had been expended. My actual finding was that there were no documents to support that amount. On first impressions, and from what the applicant told me in submissions, including that there is in fact no evidence that money was paid but that the work which is the subject of the $122,000 claim was done, I think he said, by his son, there is nothing that alerts me to any obvious or immediate error which would lead me to invite submissions as to whether it would be open for me to reopen the orders I made on the basis of an error. That does not necessarily mean that there is no error. But having regard to my having heard the matter over two days and having provided considered reasons for judgment on the matters that were submitted on the evidence that was before me, any error that I may have made is one that should be addressed in the normal course, which is by an appeal with the Federal Court of Australia.
To the extent, therefore, the applicant is to be taken as applying for me to re-open the orders I made on 27 August 2021 on the basis of some error, such application must be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 24 September 2021
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