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

1. 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

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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

8. 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;

9. 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.

10. 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.

11. 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.

12. 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

13. Consistent with the relevant rules to which I have referred and the overarching purpose, I am satisfied that, in this matter, justice requires that the proceedings be dismissed for want of prosecution.

    COSTS

14. In respect to the question of costs, I respectfully adopt the submissions of the wife’s solicitor, as follows:

    Indemnity costs

    10. Indemnity costs may be awarded against a party so that the party in whose favour the award is made is not disadvantaged, provided that their costs are reasonably incurred.

    11. In Medlon & Medlon (No 6) (2015) 54 Fam LR 1, it was established that indemnity costs are only awarded in exceptional circumstances.

    12. The circumstances in which the court may order indemnity costs were recently summarised by the Full court in Ressel & Morath [2023] FedCFamClA 145 at [81]-[82] …

    (Case Outline Document filed 13 March 2025)

15. I also note and rely upon the decision of the Full Court in Moy & Pao (2022) FLC 94-073, which confirmed at [32]:

    … [the] blatant disregard of the trial directions, and rr 16.05 and 16.06, is clear misconduct causing loss of time to the Court and other parties (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225), and hence sufficient to justify indemnity costs.

16. In this matter, I am satisfied that the misconduct of the husband, and, in particular, his indolence in complying with his obligations as a litigant, including non-compliance with orders, has caused loss of time to the Court and the wife who has incurred significant and unnecessary costs. Therefore, this is a case that justifies the award of indemnity costs. In making an order for costs, I am required to ensure that the costs are logical, fair and reasonable: Stoian v Fiening (Costs) [2014] FamCA 944 at [91], as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [9].

    ORDERS

17. Having regard to the wife’s Cost Notice filed on 7 August 2024, the Costs Agreement being Annexure “E” to the wife’s solicitor’s affidavit filed on 10 March 2025, and a copy of the fee agreement with the wife’s counsel dated 7 March 2025, I am satisfied that the amount sought by the wife in the sum of $21,000 is reasonable and proportionate.

18. I therefore make an order for the husband to pay the costs of the wife – in addition to those which have previously been ordered – on an indemnity basis, in the sum of $21,000 within 28 days of the date of this decision.

19. I will also make an order discharging all previous orders other than Orders 2 and 5 of the orders dated 8 August 2024.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Associate:

Dated:       2 April 2025