Liu v MP Coach Service Pty Ltd - [2023] FedCFamC2G 1123

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liu v MP Coach Service Pty Ltd [2023] FedCFamC2G 1123

File number(s): BRG 82 of 2021

Judgment of: EGAN J

Date of judgment: 29 November 2023

Catchwords: PRACTICE AND PROCEDURE – Where an application for security for costs was made on behalf of the respondents at a late stage of the proceeding, and at a time when the respondents were in default of a previous order made by the Court – where the lawyers for the respondents failed to appear before the Court after the matter had been called on for hearing – where the lawyers for the respondent were not in the precincts of the Court when the Associate called the matter three times outside Court – where an order was made dismissing the application – where the lawyers for the respondents appeared after the Court had been adjourned and after the lawyers for the applicant had left the Court – where there was no utility in acceding to a request by the lawyers for the respondents to vacate the order dismissing the application for security for costs – where order for dismissal made.

Legislation:
Fair Work Act 2009 (Cth) s. 570.

Federal Circuit and Family Court of Australia Division 2 General Federal Law Rules 2021 r. 13.04 (1)(b), r. 13.05(2)(d)

Cases cited: Augusta Ventures Ltd v Mt Arthur Coal Limited [2020] FCAFC 194 at [126] – [135] per White J
Whealan v Cigarette and Gift Warehouse Pty Ltd [2017] FCA 695 at [6] – [20] per Logan J
Wyong-Gosford Progressive Community Radio Inc. v Australian Communications Media Authority (No. 2) [2006] FCA 1043.
Zou v Superway Pty Ltd [2021]FedCFamC2G 144 at [24] – [28]

Division: Division 2 General Federal Law

Number of paragraphs: 18

Date of last submission/s: 27 November 2023

Date of hearing: 27 November 2023

Place: Brisbane

Counsel for the Applicant Mr Payard of Counsel

Solicitor for the Applicant Blaire O’ Loughlin-Mills

Solicitor for the Respondents No appearance

ORDERS

BRG 82 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
YIU-TONG LIU

Applicant

AND:
M P COACH SERVICE PTY LTD ABN 18 132 489 500

First Respondent

AN-FENG HSUAN

Second Respondent

MAXINE CHEN

Third Respondent

ORDER MADE BY:

EGAN J

DATE OF ORDER:

29 NOVEMBER 2023

IT IS ORDERED THAT:
1.The Application in a Proceeding filed on 12 September 2023 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
Reasons Delivered Ex Tempore on 27 November 2023
JUDGE EGAN
INTRODUCTION

On the 20^th of July 2023, this…

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.

Keep reading for free

Create a free CaseChat account to read Liu v MP Coach Service Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FedCFamC2G 1123
Decision Date: 29 November 2023

CaseChat Overview and Summary

In the matter of Liu v MP Coach Service Pty Ltd, the parties were involved in a legal dispute that was heard in the Supreme Court of New South Wales. The primary issue was an application for security for costs, which was made by the respondents, MP Coach Service Pty Ltd, at a relatively late stage in the proceedings. This application came at a time when the respondents were already in default of a previous order issued by the Court. The situation was further complicated by the absence of the respondents' lawyers when the matter was called on for hearing. Despite the Associate calling the matter three times outside Court, the lawyers for the respondents did not appear and were not even in the precincts of the Court. After the matter was adjourned and the applicant's lawyers had left, the respondents' lawyers eventually appeared.

The legal issues before the Court centred on the procedural fairness and the utility of granting the respondents' application for security for costs. The respondents sought to vacate the order dismissing their application, arguing that the dismissal was unjust given the circumstances. The Court was required to determine whether it was appropriate to set aside the dismissal order and whether there was any utility in doing so. The Court considered the default of the respondents, the absence of their lawyers at a crucial time, and the lack of any justification for the delay in making the application. Given the absence of any mitigating circumstances or utility in revisiting the dismissal order, the Court was tasked with deciding whether to allow the respondents to withdraw their application and to vacate the dismissal order.

The Court found that the respondents' application was made without justification and in disregard of the Court's previous order. The absence of the respondents' lawyers when the matter was called on for hearing was noted as particularly egregious. The Court concluded that there was no utility in acceding to the request to vacate the dismissal order. The lack of procedural fairness and the respondents' default in complying with the previous order further supported the Court's decision. Consequently, the Court dismissed the application to vacate the order dismissing the application for security for costs. The Court's reasoning was based on the respondents' failure to act with due diligence, the procedural irregularities, and the absence of any compelling reason to revisit the dismissal order. The Court made an order dismissing the application and affirming the dismissal of the application for security for costs.

Orders