Makri & Ricci - [2024] FedCFamC1F 533

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Makri & Ricci [2024] FedCFamC1F 533

File number: SYC 3994 of 2022

Judgment of: MCCLELLAND DCJ

Date of judgment: 8 August 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary Dismissal – Where wife sought an order that the husband’s Initiating Application be summarily dismissed – Where the husband has not paid an outstanding costs order from November 2023 – Where directions were made in November 2023 for the husband to file his Points of Claim – Where the husband attempted to file his Points of Claim two days prior to hearing the wife’s summary dismissal application – Where husband contends he is impecunious – Leave granted for the husband to file his Points of Claim – Where the husband sought leave to rely on an affidavit filed the day before hearing the wife’s application for summary dismissal – Where leave is refused for the husband to rely on the affidavit in circumstances where inadequate reasons have been given for the lateness and the wife would be prejudiced – Indemnity costs awarded to the wife – Proceedings stayed until the husband pays outstanding costs order from November 2023 and of these proceedings – Final hearing dates vacated.

Legislation:
Family Law Act 1975 (Cth) ss 44, 79, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 1.34, 5.07, 10.26, 10.27, 12.13, 12.17

Federal Court Rules 2011 (Cth) r 5.23

Cases cited:
Galaxing Pty Ltd v Terzioski [2019] FCA 2108

Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8

Professional Administrative Service Centres Pty Limited v the Commissioner of Taxation (2012) 91 ATR 546; [2012] FCAFC 180

Ressel & Morath [2023] FedCFamC1A 145

Division: Division 1 First Instance

Number of paragraphs: 31

Place: Sydney (via videolink)

Date of hearing: 8 August 2024

Counsel for the Applicant: Ms Kennedy

Solicitor for the Applicant: Diligence Lawyers & Migration Agents

Counsel for the Respondent: Mr Allen

Solicitor for the Respondent: Du and Associates
ORDERS

SYC 3994 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MAKRI

Applicant

AND:
MR RICCI

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:
1.Leave is granted for the husband to file his Points of Claim dated 6 August 2024.
2.The proceedings are stayed until such time as the husband pays the wife’s costs in the sum of $15,000 as ordered by the Senior Judicial Registrar on 15 November 2023, together with such costs as may be ordered from today’s proceedings.
3.The wife has liberty to apply on 7 days’ notice to the Court and the other party for the matter to be relisted for further directions and/or orders in respect to the further progression of the matter.
4.The wife has liberty to file an Application in a Proceeding seeking the revocation of Orders 6 and 7 of…

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 Makri & Ricci 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: [2024] FedCFamC1F 533
Decision Date: 8 August 2024

CaseChat Overview and Summary

The case involved Ms Makri, the applicant, and Mr Ricci, the respondent, before the Federal Circuit and Family Court of Australia (Division 1). Ms Makri sought an order for the summary dismissal of Mr Ricci’s Initiating Application due to his failure to pay an outstanding costs order from November 2023. Directions had been issued in November 2023 for Mr Ricci to file his Points of Claim, but he attempted to file them two days prior to the hearing of Ms Makri’s summary dismissal application. Mr Ricci claimed to be impecunious. The court was required to decide whether leave should be granted for Mr Ricci to file his Points of Claim and whether he should be allowed to rely on an affidavit filed the day before the hearing of Ms Makri’s application for summary dismissal.

The court granted leave for Mr Ricci to file his Points of Claim, considering the late filing was due to his financial situation. However, leave was refused for Mr Ricci to rely on the affidavit filed the day before the hearing as it was deemed prejudicial to Ms Makri and insufficient reasons were provided for the lateness. The court awarded indemnity costs to Ms Makri and stayed the proceedings until Mr Ricci paid the outstanding costs from November 2023 and the current proceedings. Final hearing dates were vacated, and the matter was set down for mention in March 2025. If the substantive application was not further prosecuted by that date, the court would consider an application to dismiss for want of prosecution.

Orders

Orders of the court

SYC 3994 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MAKRI

Applicant

AND:

MR RICCI

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

8 AUGUST 2024

THE COURT ORDERS THAT:

1. Leave is granted for the husband to file his Points of Claim dated 6 August 2024.

2. The proceedings are stayed until such time as the husband pays the wife’s costs in the sum of $15,000 as ordered by the Senior Judicial Registrar on 15 November 2023, together with such costs as may be ordered from today’s proceedings.

3. The wife has liberty to apply on 7 days’ notice to the Court and the other party for the matter to be relisted for further directions and/or orders in respect to the further progression of the matter.

4. The wife has liberty to file an Application in a Proceeding seeking the revocation of Orders 6 and 7 of Orders made on 28 October 2022 by a Senior Judicial Registrar, with those proceedings to be listed before me at a date mutually convenient to the Court and the parties.

5. Within 28 days of today’s date, the husband pay the costs of the wife, on an indemnity basis, in the sum of $17,000.

6. The matter is set down for mention before Deputy Chief Justice McClelland at 9.30 am on 14 March 2025.

7. The final hearing dates of this matter, being 9 – 13 December 2024, are vacated.

THE COURT NOTES THAT:

A. In the event of there being no further prosecution of the substantive application between now and 14 March 2025, the Court will consider on that day, an application to dismiss the substantive application for want of prosecution.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 3994 of 2022
Judgment of:	MCCLELLAND DCJ
Date of judgment:	8 August 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Summary Dismissal – Where wife sought an order that the husband’s Initiating Application be summarily dismissed – Where the husband has not paid an outstanding costs order from November 2023 – Where directions were made in November 2023 for the husband to file his Points of Claim – Where the husband attempted to file his Points of Claim two days prior to hearing the wife’s summary dismissal application – Where husband contends he is impecunious – Leave granted for the husband to file his Points of Claim – Where the husband sought leave to rely on an affidavit filed the day before hearing the wife’s application for summary dismissal – Where leave is refused for the husband to rely on the affidavit in circumstances where inadequate reasons have been given for the lateness and the wife would be prejudiced – Indemnity costs awarded to the wife – Proceedings stayed until the husband pays outstanding costs order from November 2023 and of these proceedings – Final hearing dates vacated.
Legislation:	Family Law Act 1975 (Cth) ss 44, 79, 117 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 1.34, 5.07, 10.26, 10.27, 12.13, 12.17 Federal Court Rules 2011 (Cth) r 5.23
Cases cited:	Galaxing Pty Ltd v Terzioski [2019] FCA 2108 Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 Professional Administrative Service Centres Pty Limited v the Commissioner of Taxation (2012) 91 ATR 546; [2012] FCAFC 180 Ressel & Morath [2023] FedCFamC1A 145
Division:	Division 1 First Instance
Number of paragraphs:	31
Place:	Sydney (via videolink)
Date of hearing:	8 August 2024
Counsel for the Applicant:	Ms Kennedy
Solicitor for the Applicant:	Diligence Lawyers & Migration Agents
Counsel for the Respondent:	Mr Allen
Solicitor for the Respondent:	Du and Associates

SYC 3994 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MAKRI Applicant
AND:	MR RICCI Respondent

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	8 AUGUST 2024