Makri & Ricci (No 2) - [2025] FedCFamC1F 164

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Makri & Ricci (No 2) [2025] FedCFamC1F 164

File number: SYC 3994 of 2022

Judgment of: MCCLELLAND DCJ

Date of judgment: 14 March 2025

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks an order that the husband’s Initiating Application be dismissed for want of prosecution – Where the husband is in default of orders – Where the husband has failed to pay outstanding costs orders – Where the husband was provided with sufficient notice that his Initiating Application would be dismissed if he failed to further prosecute his case – Where the wife has incurred significant and unnecessary costs as a result of the husband’s indolence – Consideration of the overarching purpose – Husband’s substantive application dismissed, with costs awarded to the wife on an indemnity basis.

Legislation:
Family Law Act 1975 (Cth) s 95

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.22, 10.27

Cases cited:
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Moy & Pao (2022) FLC 94-073; [2022] FedCFamC1A 17

Stoian v Fiening (Costs) [2014] FamCA 944

Division: Division 1 First Instance

Number of paragraphs: 19

Date of hearing: 14 March 2025

Place: Sydney (via video link)

Counsel for the Applicant: Ms Kennedy

Solicitor for the Applicant: Diligence Lawyers & Migration Agents

The Respondent: Did not participate
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:

14 MARCH 2025

THE COURT ORDERS THAT:
1.The husband’s Initiating Application filed 4 October 2022 is dismissed for want of prosecution.
2.All previous orders are discharged, save for Orders 2 and 5 of the orders made on 8 August 2024.
3.By 11 April 2025, the husband is to pay the wife $21,000 on an indemnity basis.

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Macri & Ricci has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION

These reasons respond to an Application in a Proceeding filed by the wife on 10 March 2025, seeking that the proceedings be dismissed for want of prosecution and an order for indemnity costs.…

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 Makri & Ricci (No 2)

Details

AGLC: Makri & Ricci (No 2) [2025] FedCFamC1F 164
Case: [2025] FedCFamC1F 164
Decision Date: 14 March 2025

CaseChat Overview and Summary

In the case of Makri & Ricci (No 2), the wife, Ms. Makri, applied for the dismissal of the husband’s Initiating Application due to a lack of prosecution. The husband, Mr. Ricci, had been repeatedly non-compliant with court orders and failed to meet several deadlines for filing necessary documents, which led to the wife incurring significant unnecessary costs. The Federal Circuit and Family Court of Australia was tasked with determining whether the husband’s Initiating Application should be dismissed and whether the wife should be awarded indemnity costs for the husband’s indolence.

The primary legal issue before the court was whether the husband's inaction and non-compliance with court orders warranted the dismissal of his Initiating Application for want of prosecution under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court had to consider the husband's history of default, the notice provided to him regarding the consequences of further inaction, and the overarching purpose of the Family Law Act 1975, which requires the just, quick, and efficient resolution of disputes.

The court found that the husband's repeated failure to comply with court orders and his disregard for his responsibilities as a litigant justified the dismissal of his Initiating Application. The husband had been given ample notice and multiple opportunities to rectify his indolence, yet he failed to take any meaningful action. Additionally, his non-compliance led to the unnecessary escalation of costs for the wife, which was contrary to the overarching purpose of the Family Law Act. Consequently, the court dismissed the husband’s Initiating Application and ordered him to pay the wife $21,000 on an indemnity basis by 11 April 2025.

The court's decision underscored the importance of adhering to court orders and the need for litigants to prosecute their claims with diligence. By dismissing the husband’s application and awarding indemnity costs, the court aimed to uphold the efficient administration of justice and deter similar conduct in future proceedings.

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:

14 MARCH 2025

THE COURT ORDERS THAT:

1. The husband’s Initiating Application filed 4 October 2022 is dismissed for want of prosecution.

2. All previous orders are discharged, save for Orders 2 and 5 of the orders made on 8 August 2024.

3. By 11 April 2025, the husband is to pay the wife $21,000 on an indemnity basis.

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

These reasons respond to an Application in a Proceeding filed by the wife on 10 March 2025, seeking that the proceedings be dismissed for want of prosecution and an order for indemnity costs. This judgment should be read in conjunction with reasons I have previously given on 8 August 2024, which set out the indolence of the husband in complying with his obligations as a litigant before the Court. BACKGROUND By orders made on 16 November 2023, I set this matter down for final hearing commencing on 9 December 2024. In order to seek clarification of the nature of the husband’s case, I directed that he file his Points of Claim by 31 January 2024 and listed the matter for mention on 27 March 2024. The purpose of the mention was to make trial directions in the context of the issues in dispute as clarified by the husband’s Points of Claim and the wife’s Points of Defence. The husband did not comply with those directions and failed to file his Points of Claim. As such, the wife filed an Application in a Proceeding on 8 March 2024 seeking that the proceedings be dismissed for want of prosecution. That application was adjourned on at least one occasion as a result of counsel appearing for the husband indicating his client required more time to file his Points of Claim. On 4 June 2024, counsel for the husband was advised of the Court’s concerns regarding the approach to the litigation that was being taken by the husband. An indulgence was granted to permit the husband additional time to file his Points of Claim and the wife’s Application in a Proceeding seeking a summary dismissal was adjourned to 8 August 2024. On the morning of 8 August 2024, counsel for the husband sought leave to file Points of Claim that had been drafted on behalf of his client. The reasons for judgment dated 8 August 2024, set out the course of action that I took, again, granting an indulgence to the husband and allowing him to file his Points of Claim, despite it being out of time. I note that the indolence of the husband in his non-compliance with directions of the Court resulted in the hearing dates of 9 to 13 December 2024 being vacated, which interfered with the orderly business of the Court. In that context, as at 8 August 2024, orders were made for the husband to pay the costs of the wife on an indemnity basis in respect to costs thrown away, noting that the mention on 8 August 2024 was necessary as a result of the husband’s indolence. On that day, the Court – having already granted numerous indulgences to the husband – provided a final opportunity for the husband to get his house in order, including by satisfying the costs obligations that he had to the wife. That final opportunity was specifically recorded in the following notation: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.(Orders dated 8 August 2024)CONSIDERATION

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

On that day, the Court – having already granted numerous indulgences to the husband – provided a final opportunity for the husband to get his house in order, including by satisfying the costs obligations that he had to the wife. That final opportunity was specifically recorded in the following notation: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.(Orders dated 8 August 2024)CONSIDERATION In this case, I refer to the affidavit filed by the solicitor for the wife filed on 10 March 2025 in support of the wife’s application for the proceedings to be dismissed for want of prosecution. In that context, I note that r 10.27(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that:(1) If a party is in default, the court may do any of the following:(a) order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party; I further note that r 10.22 of the Rules provides for the dismissal of proceedings for want of prosecution. A precondition, however, is that the party is to be given at least 14 days’ notice of the time that the Court will consider whether to make such an order: r 10.22(3) of the Rules. Clearly, in the circumstances of this case, the husband was given a far greater period of time than the required 14 days’ notice, with such notice being given by the notation to the orders of 8 August 2024 to which I have earlier referred. Having read the affidavit of the wife’s solicitor, I am satisfied that the husband has not complied with the orders I made on 8 August 2024. I am further satisfied that his failure to do so is in the context of a lengthy period of indolence and a disregard of his responsibilities as an applicant to proceedings before this Court to prosecute his claim with appropriate diligence and alacrity. I have further had regard to the provisions of s 95 of the Family Law Act 1975 (Cth), which provides, that in considering and applying the practice and procedure provisions of the Court, including the Rules, I am required to have regard to the overarching purpose to facilitate the just resolution of disputes “according to law” and as “quickly, inexpensively and efficiently as possible”. That is, I am required to have regard to not only the impact of orders on individual litigants, but also on the business of the Court generally. In the circumstances of this case where the husband:(a)Failed to appear at today’s listing, despite being represented by counsel on 8 August 2024; and (b)Was in attendance on 8 August 2024 and had been given clear notice, first, that the matter was set down for further directions today and, second, that if he did not comply with the orders of the Court, the proceedings would be struck out – I am satisfied that the proceedings ought be dismissed for want of prosecution.DISPOSITION

File number:	SYC 3994 of 2022
Judgment of:	MCCLELLAND DCJ
Date of judgment:	14 March 2025
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks an order that the husband’s Initiating Application be dismissed for want of prosecution – Where the husband is in default of orders – Where the husband has failed to pay outstanding costs orders – Where the husband was provided with sufficient notice that his Initiating Application would be dismissed if he failed to further prosecute his case – Where the wife has incurred significant and unnecessary costs as a result of the husband’s indolence – Consideration of the overarching purpose – Husband’s substantive application dismissed, with costs awarded to the wife on an indemnity basis.
Legislation:	Family Law Act 1975 (Cth) s 95 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.22, 10.27
Cases cited:	Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Moy & Pao (2022) FLC 94-073; [2022] FedCFamC1A 17 Stoian v Fiening (Costs) [2014] FamCA 944
Division:	Division 1 First Instance
Number of paragraphs:	19
Date of hearing:	14 March 2025
Place:	Sydney (via video link)
Counsel for the Applicant:	Ms Kennedy
Solicitor for the Applicant:	Diligence Lawyers & Migration Agents
The Respondent:	Did not participate

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:	14 MARCH 2025