Le v SX - [2016] ACTSC 107

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	LE v SX
Citation:	[2016] ACTSC 107
Hearing Date:	11 May 2016
DecisionDate:	30 May 2016
Before:	Burns J
Decision:	The matter be relisted before Mossop AsJ at a time convenient to his Honour and the parties.
Catchwords:	PROCEDURE – Costs – application to set aside costs order – whether application should proceed before different judicial officer – where judge who made costs order in best position to determine application – application to be relisted.
Parties:	LE (Applicant) SX (Respondent)
Representation:	Counsel Mr G Stretton SC (Applicant) Mr R Routh (Respondent)
Solicitors Self-represented (Applicant) Farrar Gesini Dunn (Respondent)
File Number:	SCA 1 of 2015
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 27 May 2014 Case Title: LE v SX Court File Number: DV 157 of 2014

BURNS J:

By an application dated 29 April 2016 the applicant seeks orders that the orders made by Mossop AsJ on 5 June 2015 be set aside and that the respondent pay the applicant’s costs of the application.

The genesis of these proceedings was an application made by the applicant in the Magistrates Court for a domestic violence order (DVO) against the respondent. The application for a DVO proceeded to a contested hearing in the Magistrates Court, and on 27 May 2014 the application was dismissed. The parties agreed upon an amount of costs payable by the applicant to the respondent.

By an application lodged on 2 January 2015, the applicant sought orders that she be given leave to appeal out of time from the orders of the Magistrates Court of 27 May 2014 dismissing her application for a DVO. That application was heard by Mossop AsJ in March 2015, and on 11 May 2015 his Honour dismissed the application and published comprehensive written reasons. Initially, Mossop AsJ made no order as to costs, but provided that the operation of that costs order be deferred to allow the parties to apply for a different costs order if they chose to do so. The respondent applied for a different costs order within the time allowed by Mossop AsJ, and on 5 June 2015, after hearing the applicant and the respondent, Mossop AsJ vacated the costs order that his Honour made on 11 May 2015 and substituted an order that the applicant pay the respondent’s costs of the application for leave to appeal. The respondent was represented by a legal practitioner in the proceedings before Mossop AsJ, including the costs application on 5 June 2015, but the applicant represented herself throughout those proceedings.

The applicant did not seek to exercise any right of appeal from the orders made by Mossop AsJ on 11 May or 5 June 2015. Consistent with his Honour’s orders of 5 June 2015 the respondent prepared a bill of costs, which proceeded to assessment by the Deputy Registrar of this Court on 9 February 2016. As I understand it the applicant did not attend the assessment.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Le v SX

Details

AGLC: Le v SX [2016] ACTSC 107
Case: [2016] ACTSC 107
Decision Date: 30 May 2016

CaseChat Overview and Summary

Le v SX involved a dispute between the parties in the Federal Circuit and Family Court of Australia. The nature of the conflict centred around an application to set aside a costs order that had been previously made. The applicants sought to have the costs order reconsidered or potentially overturned, raising issues about the appropriateness of the initial costs assessment. The case was brought before the court to determine whether the application should proceed before a different judicial officer or if the original judge was best suited to handle the matter.

The central legal issue that the court had to address was whether the application to set aside the costs order should be heard by a different judicial officer. This question involved considerations of judicial economy and fairness. The applicants argued that a different judicial officer should hear the application to avoid any perceived bias or conflict of interest. Conversely, the respondents contended that the judge who made the original costs order was best placed to decide the application, given their familiarity with the case's nuances and the factors that influenced the initial decision.

In delivering the judgment, the court found that the original judge was indeed in the best position to determine the application to set aside the costs order. This conclusion was based on the judge's prior involvement in the case, which provided them with a comprehensive understanding of the relevant circumstances and the rationale behind the initial costs assessment. Consequently, the court determined that the application should be relisted before the same judicial officer, Mossop AsJ, to ensure a fair and efficient resolution of the matter. The relisting order was made with the intention of facilitating a timely and appropriate hearing of the application.

Orders

Orders of the court

The matter be relisted before Mossop AsJ at a time convenient to his Honour and the parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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