Newman and Pascoe and Anor (SSAT Appeal)
[2013] FCCA 788
•8 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEWMAN & PASCOE & ANOR (SSAT APPEAL) | [2013] FCCA 788 |
| Catchwords: CHILD SUPPORT – STAY – Application for Stay of the operation of the child support assessment pending the finalisation of the Appeal. COSTS – Application for costs by respondents – whether costs should be awarded on a party and party basis or an indemnity basis. |
| Legislation: Family Law Act 1975 (Cth), s.117 |
| Cases cited: Colgate Palmolive Pty Ltd v Cussons Limited (1993) 46 FCR 225 Kohan & Kohan (1993) FLC 92-340 Prantage & Prantage [2013] FamCAFC 105 SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 126 |
| Appellant: | MR NEWMAN |
| First Respondent: | MS PASCOE |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 7190 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 8 July 2013 |
| Date of Last Submission: | 8 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 2013 |
REPRESENTATION
| The Appellant: | No appearance |
| Solicitor for the First Respondent: | Ms McFarlane |
| Solicitors for the First Respondent: | Tyler Tipping & Woods |
| Solicitor for the Second Respondent: | Mr Gouliaditis |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The Appeal is dismissed.
The decision of the Social Security Appeals Tribunal made on 17 October and posted on 30 October 2012 is affirmed.
The Enforcement Summons filed on 19 February 2013 is dismissed.
The Stay ordered on 27 February 2013 and continued on 12 March 2013 and 14 May 2013 is discharged.
All other outstanding Applications are dismissed.
The Appellant is to pay the First Respondent’s costs fixed in the sum of $6,949.00 within one (1) month.
The Appellant is to pay the Second Respondent’s costs fixed in the sum of $6,408.00 within one (1) month.
IT IS NOTED that publication of this judgment under the pseudonym Newman & Pascoe & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7190 of 2012
| MR NEWMAN |
Appellant
And
| MS PASCOE |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an Appeal against a Decision of the Social Security Appeals Tribunal made on 17th October and posted on 30th October 2012. In its Decision the Tribunal affirmed the decision of the Second Respondent, the Child Support Registrar, to make a departure determination from administrative assessment of child support under Part 6A of the Child Support (Assessment) Act 1989 (Cth).
The Appellant has not attended Court for the hearing of the Appeal.
Litigation History
The Appellant filed a Notice of Appeal on 29th November 2012, returnable on 12th March 2013.
On 19th February 2013 the Appellant filed an Application for a Stay of the operation of the relevant child support assessment pending the finalisation of the Appeal proceedings. That Application was returnable on 6th May 2013.
That same day, 19th February 2013, the Appellant filed a Third Party Debt Notice and an Enforcement Summons, seeking to enforce payment of an amount of $6,000.00 ordered against the First Respondent in the Family Court of Australia at Melbourne on 21st August 2006.
A Registrar declined to issue the Third Party Debt Notice on 26th February 2013. However, the Enforcement Summons was filed and was returnable on 12th March 2013, the same day as the Notice of Appeal.
On 21st February 2013 the Appellant filed an Application in a Case seeking an urgent hearing of his Application for a Stay. A Registrar directed that this Application should be returnable on 12th March 2013.
The following day, the Appellant filed an Application for Review of the Registrar’s decision to list his Application for a Stay on 12th March. He sought that the Application should be listed for hearing before 1st March.
The Application for Review was heard by Federal Magistrate Myers[1] on 27th February 2013. His Honour allocated a return date of 27th February to the Application and ordered that the collection of monies by the Child Support Registrar should be stayed until 5:00pm on 12th March 2013. The matter was then adjourned to 12th March 2013.
[1] As his Honour then was
On 12th March 2013:
a)The Social Security Appeals Tribunal was removed as a Respondent to the Appeal;
b)The Appellant was ordered to file and serve an Amended Notice of Appeal;
c)The stay Order was extended until further Order; and
d)The proceedings were adjourned to 14th May for further mention.
On 14th May 2013 the stay was continued and the proceedings were listed for final hearing on 8th July 2013 at 10:00am.
The hearing
The Appellant did not attend Court on the day of the hearing. His name was called three times outside the Court at 10:34am, more than half an hour after the scheduled time for the hearing to commence, but there was no appearance by the Appellant or anyone on his behalf. No message was received by the Court from the Appellant or anyone on his behalf advising that he had been hindered, delayed or prevented from attending court by any illness, injury or other emergency.
The Appellant did not attend court at any time later in the day.
Accordingly, the Respondents’ solicitors each asked the Court to dismiss the Appeal and the other proceedings under the provisions of Rule 13.03C. The Respondents’ solicitors also asked the Court for an order for costs in favour of their respective clients.
I propose to accede to these applications and dismiss the Appeal and other matters, with costs.
Default of Appearance of a Party
Rule 13.03C(1) provides that if a party to a proceeding is absent from a hearing the Court may:
…
(c) if the absent party is an applicant – dismiss the application;
Clearly, the rule applies if the party is an appellant.
Where a proceeding has been dismissed under this rule, an applicant who wishes to vary or set aside the Court’s decision may make an Application to do so under Rule 16.05. The procedure has been described by Hely J in SZDMD v Minister for Immigration & Multicultural & Indigenous Affairs[2] at [8]-[9]:
8.Rule 16.05(2)(a) of the Federal Magistrates Court Rules[3] provides that the Federal Magistrates Court[4] may vary or set aside any order after it has been entered if the order was made in the absence of a party. It may therefore be open to the applicant to apply to the Federal Magistrates Court to re-open the proceedings in that court.
9.For such an application to be successful the applicant would have to furnish both a reasonable excuse for his original non-attendance and demonstrate that there would be some purpose in re-opening the case and, of course, there would be no such purpose unless he had an arguable case.[5]
[2] [2005] FCA 126
[3] Now the Federal Circuit Court Rules 2001
[4] Now the Federal Circuit Court
[5] [2005] FCA 126 at [8]-[9]
Costs
The Respondents seek orders for costs. It appears to me that in the circumstances, where the Appellant has failed to appear for a hearing of which he has had plenty of notice, it is almost inevitable that an order should be made that he should bear the Respondents’ costs. This is particularly so where the First Respondent and her solicitor have both travelled from country Victoria to attend court. Ms McFarlane, for the First Respondent, has informed the Court that her client has been obliged to take a day off from her employment to attend court.
Section 105 of the Child Support (Registration and Collection) Act 1988 (Cth) provides that the Family Law Act 1975 (Cth) and the Federal Circuit Rules apply as if these proceedings were proceedings under the Family Law Act. Section 117 of that Act applies in respect of costs. I am of the opinion that there are circumstances that justify the Court in making an order for costs, as I have described in paragraph [19] above. I have also considered the relevant matters in s.117(2A). In particular, I note that no party is in receipt of a grant of legal aid.
The Second Respondent, the Child Support Registrar, seeks costs fixed at $6,408.00, which is the amount provided by the scale set out in Division 2 of Part 2 of Schedule 1 to the Rules. This appears to me to be appropriate.
The First Respondent, however, has handed up a memorandum of costs amounting to $8,898.67. It is addressed to the Appellant and appears to have been prepared on a solicitor and client basis.
Costs are seldom awarded on an indemnity basis. It has been held that there should be some special or unusual feature in the case that would justify a departure from the usual practice that costs should be assessed on a party and party basis (Colgate Palmolive Pty Ltd v Cussons Limited[6]; Kohan & Kohan[7]). It is the usual rule that costs are payable on a party/party basis (see Prantage & Prantage[8] at [76]-[78], [80]-[86]).
[6] (1993) 46 FCR 225
[7] (1993) FLC 92-340
[8] [2013] FamCAFC 105
The First Respondent’s costs will also be allowed under Division 2 of Part 2 of Schedule 1. However, the First Respondent and her solicitor have had to travel from Victoria for the hearing, so $541.00 will be allowed for travelling costs under Division 1 of Part 2.
Thus, the First Respondent’s costs will be fixed on a party and party basis at a lump sum of $6,408.00 under Division 2 of Part 2 and travelling costs of $541.00 under Division 1 of Part 2, making a total of $6,949.00.
I will order accordingly.
I certify that the preceding twenty-six paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 11 July 2013
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