Liu v MP Coach Service Pty Ltd

Case •

[2023] FedCFamC2G 1123

•

29 November 2023

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

  1. On the 20th of July 2023, this Court ordered, inter alia, that the Respondents shall file and serve their Defence to the Amended Statement of Claim by 4pm on or before 21 August 2021.

  2. The Respondents failed to comply with that order of the Court, and therefore they were in default for the purposes of r. 13.04(1)(b) of the Federal Circuit and Family Court of Australia Division 2 General Federal Law Rules 2021 (‘the Rules’). Notwithstanding that default, which has been ongoing, the Respondents filed the subject Application in a Proceeding seeking security for costs against the Applicant. The trial of the matter is listed for hearing on 5 March 2024.

  3. The Court does not consider that there was a reasonable basis for the filing of that application for security for costs in the light of a number of decisions, both of this Court, and of the Federal Court, where it was emphasised that caution should be exercised before a Court considers making an order for security for costs. [1] There was no basis in this matter for the Court to be convinced that circumstances were such that there was a certainty or high probability that costs would be awarded in favour of the Respondents after a trial.

    [1]           Zou v Superway Pty Ltd [2021]FedCFamC2G 144 at [24] – [28]per Judge Cameron; Augusta Ventures

    Ltd v Mt ArthurCoal 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.

  4. Further, it is unconscionable and an abuse of process for a party in default to seek the indulgence of the Court for the making of any order, let alone a restrictive security for costs order, in circumstances where at the time of the filing of the application the Respondents were themselves in default.

  5. The Respondents’ lawyers have not appeared in court today to argue their application. No written reason by way of an email or other communication has been advanced for their non-appearance.

  6. In all of the circumstances, the Court dismisses the Application for security for costs filed on the 12th of December 2023 pursuant to provisions of r. 13.05 (2) (d) of the Rules.

  7. The Court will hear the parties as to costs.

    Further Written Reasons

  8. On 27 November 2023 the hearing commenced at 9.49 am. When the matter was called, Mr Payard of Counsel announced his appearance on behalf of the applicant. There being no appearance at the bar table on behalf of the respondents, the Associate called the name of the matter three times whilst standing outside the doors to the Court. When there was no response to the call, the Associate returned to the Court and announced that there was no appearance on behalf of the respondents.  

  9. After the application in a proceeding had been dismissed by the Court, the Court adjourned at or about 10 am. At no time between 9.49 am and 10 am had the lawyers for the respondents entered the courtroom, or otherwise made their appearance known to the Court.

  10. At 1.34pm a letter from the lawyers for the respondents was received at Chambers, and was in the following terms:

    Dear Associate,

    We refer to the above matter.

    We write regarding the above-referenced matter scheduled for an interlocutory hearing before Judge Egan at 9:45 AM on 27 November 2023.

    We were informed that the hearing would be conducted in person at the Federal Circuit and Family Court of Australia, located in Brisbane. Our solicitors traveled from the Gold Coast to attend this session. Upon arrival at Court 4, we did not hear our case being called. Noticing the departure of the Applicant’s solicitor, we entered to inquire about the status and learned that the judge had already left.

    We are keen to resubmit our application and seek the opportunity to present our case before the judge. Could you please advise us on the best approach to achieve this? 

    Your guidance would be greatly appreciated.

    Yours faithfully

    Yidan Chen (Helen)

    Fusanobu Hiro Sano Trading as Morrison Specter Attorneys at Law

  11. Upon receipt of that email correspondence, an email was sent to the lawyers for the Applicant seeking their attitude to the request contained in the email correspondence sent by the lawyers for the respondents.

  12. At 4.23 pm on 27 November 2023, Chambers received an email from the lawyers for the applicant in the following terms:



    Dear Associate

    The Applicant opposes any re-hearing of the Respondents’ application for security for costs.

    The hearing of the Respondents’ application commenced after 9:50am, which was after the listing time of 9:45am.  Neither the Respondents nor their representatives were present at the commencement of the hearing and his Honour’s Associate called the matter three times.  The Respondents’ representatives did not respond to the call and were absent for the hearing.

    In response to a query from his Honour, the Applicant confirmed she sought for the application to be dismissed in the absence of the Respondents. His Honour had the power to make that order under rules 13.05(2)(d) or 13.06(1)(d) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. His Honour exercised that power and dismissed the application. Accordingly, his Honour’s decision was correctly entered and reflected the Court’s intention.

    We do not consider there is any basis to take issue with his Honour’s order.

    Kind regards

    Blaire O'Loughlin-Mills (she/her)
    Lawyer

  13. As to the email sent by the lawyers for the respondents, the Court makes the following observations:

    (a)The lawyers for the respondents were clearly not outside Court at the time that the matter was called three times by the Associate. Had they been, they no doubt would have entered the Court and announced their appearance.

    (b)Beside the doors to the Court is a glass panel through which those outside Court can look to observe what was happening in Court. The lawyers for the respondents clearly did not avail themselves of that opportunity before the application was dismissed.

    (c)Lawyers acting for parties to proceedings have a responsibility both to their clients and to the Court to ensure that they are able to respond appropriately when the matter in which they are involved is called on for hearing. That necessarily requires them to be on time. If they are not on time then whatever consequences flow from their lack of diligence is their responsibility, and not the responsibility of others. 

  14. The Court does not consider that there would be any utility in the lawyers for the respondents being able to again seek to agitate the application for security for costs. There are a number of reasons why that is so.

  15. First, proceedings were commenced in this matter on 25 February 2021. The application for security for costs was filed on 12 September 2023 – some two years and seven months later.

  16. It has long been held that any delay in the making of an application for security for costs is a factor to be taken into account by the Court when considering whether to exercise its discretion to make an order for security for costs or not. It is a well accepted principle that a party ought not to be exposed at a late stage of a proceeding to a security for costs order when they have for a long period of time expended time, energy and money in the prosecution of their claim. [2]

    [2]           Wyong-Gosford Progressive Community Radio Inc. v Australian Communications Media Authority (No.

    2) [2006] FCA 1043.

  17. Second, delay is particularly relevant in circumstances where a trial of the proceeding has been listed for hearing, and is imminent. In this case, the trial is due to commence on 5 March 2024 and is listed for four days hearing. Any stay of the proceeding, as sought by the respondents pending payment of any security for costs sum, would in most likelihood necessarily delay the final hearing and determination of this matter, something which is contrary to the objects of this Court’s governing Act. Valuable Court time already set aside would also be lost to the detriment of other diligent parties.

  18. Third, the Court is not persuaded that the applicant’s case is one where it would appear that there is a likelihood that an adverse costs order would be made against her after a trial. The provisions of s. 570 of the Fair Work Act 2009 (Cth) (‘the Act’) are relevant in that regard.

  19. In all of the circumstances, therefore, the Court is not minded to vacate the order made on 27 November 2023.       

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       29 November 2023


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