Martin and Harris (No 2)

[2009] FamCA 908

FAMILY COURT OF AUSTRALIA

MARTIN & HARRIS (NO. 2) [2009] FamCA 908

FAMILY LAW – PRACTICE AND PROCEDURE – variation of a self-executing order – application to extend time by one day to comply with previous order that any costs application be filed and served within 28 days – whether the Court has the discretion to extend the time for the filing of the application nunc pro tunc – whether the Court is functus officio – Court’s power to vary a procedural order – Court’s discretion as to costs orders – explanation of delay satisfactory and no prejudice suffered by the delay

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Bailey and Marinoff (1971) 125 CLR 529
DJL v Central Authority (2000) 201 CLR 226
Eure & Tidwell (1995) FLC 92-622; 19 FamLR 346
FAI General Insurance Co Ltd v Southern Cross Exploration (1988) 165 CLR 268; [1988] HCA 13
Morgan v 45 Flers Avenue Pty Ltd & Anor (1987) 11 NSWLR 573
Purcell v F C Trigell Ltd [1971] 1 QB 358
Southern Cross Exploration NLv Fire and All Risks Insurance Co Ltd (1986) 7 NSWLR 319

APPLICANT: Ms Martin

RESPONDENT: Mr Harris

INTERVENOR: Mr R

FILE NUMBER: SYC 1251 of 2007

DATE DELIVERED: 16 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 7 August 2009 followed by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Broun QC

SOLICITOR FOR THE RESPONDENT: Mr Gallego

SOLICITOR FOR THE INTERVENOR: Mr Orlizki

Orders

1. Order 7 of the Orders of 18 June 2009 is varied by the deletion of the words “28 days” and the replacement of the words “29 days”.

2. Order 1 above take effect and operate as and from 18 June 2009.

3. The respondents to the wife’s costs application have a further 28 days from today in which to file any submissions or affidavits adducing evidence upon which they might wish to rely in opposition to the claim.

4. The costs of this application are reserved to the hearing of the wife’s application for costs.

5. The matter is listed for further mention before me at 9.30 am on Thursday,

   
   

   15 October 2009.

IT IS NOTED that publication of this judgment under the pseudonym Martin and Harris is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1251 of 2007

MS MARTIN

Applicant

And

MR HARRIS

Respondent

And

MR R

Intervenor

REASONS FOR JUDGMENT

Introduction

1. Proceedings between the parties to this application were determined by a judgment and orders made on 18 June 2009.

2. Relevantly in relation to costs the following orders were made:

   7.Any application for costs is to be filed and served within 28 days of the Orders herein made, and subject to the following:

   a.Any costs application is to be accompanied by affidavits setting out the evidence in chief on which the applicant wishes to rely together with any written submission in support of that application.

   b.[Not…