Lipczynski, Roger Edmund v Child Support Agency

[1997] FCA 1534

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 142  of   1997

BETWEEN:	ROGER EDMUND LIPCZYNSKI Applicant
AND:	CHILD SUPPORT AGENCY Respondent
JUDGE(S):		SPENDER J
DATE OF ORDER:		17 DECEMBER 1997
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay to the respondent the costs of and incidental to the proceedings, to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 142  of 1997

BETWEEN:	ROGER EDMUND LIPCZYNSKI Applicant
AND:	CHILD SUPPORT AGENCY Respondent

JUDGE(S):	SPENDER J
DATE:	17 DECEMBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This matter was set down for directions on Friday 17 October 1997.  By a letter one day earlier, the Australian Government Solicitor advised the Queensland District Registry that negotiations between the parties were continuing and that the parties sought an adjournment of the directions hearing for approximately two months.  It was adjourned until today and the Registrar received from the Australian Government Solicitor a letter dated 16 December 1997 which said, in part:

I refer to my telephone conversation today and confirm that this matter has been set down for directions tomorrow at 9.30 am.  I am enclosing a copy of a letter that I received from the applicant dated 27 November 1997. 

That letter is enclosed and I will refer to it shortly.  Ms Fitzpatrick says that:

After obtaining instructions I wrote to the applicant on 4 December enclosing a consent order dismissing the application and inviting him to negotiate with me in relation to my client's costs.

There is a further letter of 9 December 1997 in similar terms.  The letter said that the Australian Government Solicitor did not have any contact phone number for the applicant.  There are two addresses involved and the letter concluded:

In the light of the above, I have been instructed to request the directions hearing set down for tomorrow be vacated.

I advised that the matter should not be vacated, but that, in the light of the letter from Mr Lipczynski, the matter should be listed before me today for directions.  Mr Lipczynski has not made an appearance today.  The terms of his letter to the Court (which was enclosed via the letter from the Australian Government Solicitor) were as follows:

I am writing to you in regards to this matter due 17 December 1997 and ask you to send this letter to the Federal Court to cease the said application.  I also wish you to draw up your final account in which I will endeavour to pay the account in instalments.
...
I thank you for your time in this matter and hope to hear from you soon in regards to the account.  Yours Sincerely.

In light of those circumstances, it seems to me that I ought to dismiss the application for a number of reasons, but one sufficient one is that it is obvious that the applicant is not wishing to prosecute the application.  He has failed to appear today in answer to the direction previously made and which has not been vacated.  It is in nobody's interests to have the matter further exacerbated by costs.  The matter should be bought to an end and I accordingly dismiss the application QG 142 of 1997.  I order that the applicant pay the costs of the respondent of and incidental to the proceedings to be taxed if not agreed. 

I have made that order, although I accept that it is likely that the Australian Government Solicitor will reach some mutually satisfactory arrangement concerning the question of the payment of costs, if any.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender

Associate:

Dated:            17 December 1997

The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Judgment:	17 December 1997