Nghiem and Truong and Anor (No. 2)

[2012] FamCA 750

FAMILY COURT OF AUSTRALIA

NGHIEM & TRUONG AND ANOR (NO. 2) [2012] FamCA 750

FAMILY LAW - PRACTICE AND PROCEDURE – The Applicant’s application seeking relief against the second named respondent dismissed for failure to comply with orders.

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

APPLICANT: Mr S Nghiem

FIRST RESPONDENT: Ms Truong

SECOND RESPONDENT: Ms Luong

FILE NUMBER: MLC 4291 of 2011

DATE DELIVERED: 16 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 16 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE FIRST RESPONDENT: Ms Johal

SOLICITOR FOR THE FIRST

RESPONDENT:

Berger Kordos Lawyers

COUNSEL FOR THE SECOND

RESPONDENT:

Dr R Ingleby

SOLICITOR FOR THE SECOND

RESPONDENT:

Forte Family Lawyers

IT IS ORDERED THAT

1. The applicant husband’s claims for relief against the second named respondent be dismissed for failure to comply with the Orders of this Court made 26 April 2012 and 18 July 2012.

2. In the event that the applicant husband seeks leave to amend his application so as to seek relief against the second named respondent, any such application be supported by:

   (a)The document specified in paragraph 2 of the Orders made 18 July 2012;

   (b)An affidavit deposing to reasons for non compliance with the Orders made 26 April 2012 and 18 July 2012.

3. The applicant husband pay the second named respondent’s costs of this day and the costs reserved pursuant to paragraph 4 of the Orders made 18 July 2012 in relation to the proceedings generally, with the quantum and time for payment to be reserved to the trial.

4. All questions of the respondent wife’s costs be reserved.

5. By 4 pm on 23 August 2012 the applicant husband file and serve upon all other parties a Notice of Address for Service.

6. All applications for final Orders be adjourned for hearing before Justice Macmillan as the second matter at 10:00 am on 18 February 2013 as a 2-3 day matter.

7. The matter be listed for Mention before Justice Macmillan at 9:00am on 22 January 2013.

8. By 4 pm on 11 October 2012 the applicant husband file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)       the affidavits of evidence in chief of all witnesses relied upon; and

   (c)a financial statement that complies with Chapter 13 of the Family Law Rules 2004 (Cth).

9. By 4 pm on 8 November 2012 the respondent wife file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought;

   (b)       the affidavits of evidence in chief of all witnesses relied upon;

   (c)a financial statement that complies with Chapter 13 of the Family Law Rules 2004 (Cth).

10. By 4 pm on 22 November 2012 the applicant husband file and serve any affidavit in reply to the affidavits of the respondent.

11. No party file any further material other than as provided by these Orders without leave of the Court.

12. All parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

13. All parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these Orders to ensure readiness for trial.

14. Should any party fail to comply with these Orders or the ensuing amending directions of the docketed registrar, the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

15. The applicant pay all setting down and trial fees by 4 pm on 14 February 2013 or obtain the requisite waiver thereof.

16. The practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4 pm on 13 February 2013 the following:

    (a)       a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)       a list of assets and liabilities; and

    (d)       a bullet-point summary of argument in relation to the issues in dispute.

17. Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

18. The practitioners be at liberty to approach Justice Macmillan’s Associate, … , for an urgent listing of the matter if required.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nghiem & Truong and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4291 of 2011

Mr S Nghiem

Applicant

And

Ms Truong

First Respondent

Ms Luong

Second Respondent

REASONS FOR JUDGMENT

1. This matter is listed for Mention before me, pursuant to orders that I made on 18 July 2012.  On that date, I made orders that on or before 4 pm on 8 August, the applicant husband file and serve upon all other parties a statement of claim setting out the precise nature of his claim or claims against the second-named respondent.  I otherwise dismissed the second-named respondent’s oral application, made that day, to have the husband’s application, as against the second-named respondent, dismissed.

2. This matter has a reasonably lengthy history, which is set out in my reasons for judgment delivered on 18 July 2012.  I don’t propose to repeat them, save and except to say that on 26 April 2012 the husband was required to set out the precise nature of his claim as against the second-named respondent and failed to do so.  Insofar as the application made by the second-named respondent at the hearing on 10 July 2012 was, in my view, an application for summary dismissal, that application was dismissed and the applicant husband was given a further opportunity to specify his claim in accordance with my orders.  He has again failed to do so.

3. On 27 July 2012, the applicant husband’s solicitors filed a notice of ceasing to act.  The husband does not appear today, and I am advised by a friend, Mr Z, that the applicant husband is in Vietnam, and will be returning to Australia some time in mid-September.  He’s clearly not here today, and the fact that he’s in Vietnam and that his solicitors have ceased to act does not explain why, on a second occasion, he has failed to comply with my orders with respect to specifying the claim against the second-named respondent.  Clearly he was on notice, as a result of my reasons, that in the event that he did not comply with the orders requiring him to specify that claim, that that part of his application would be dismissed.

4. In all of the circumstances, I do propose to accede to the second-named respondent’s application dismissing the applicant husband’s application insofar as it seeks orders against him. 

5. The second-named respondent also seeks an order that the applicant husband pay the second-named respondent’s costs of this day and the costs reserved pursuant to my order of 18 July 2012, and that the quantum of those costs and the manner of payment be reserved to the trial.  Whilst in normal circumstances in proceedings in this Court, parties bear their own costs, there are circumstances in which it is appropriate to make an order for costs, and I am satisfied that this case is such a case.  The applicant husband has been given every opportunity to set out his claim against the second-named respondent.  The second-named respondent has been put to the expense of instructing solicitors and having Counsel appear on their behalf on now three occasions, the first being 26 April 2012, the second, 10 July 2012, and the further Mention of the matter today.  In all of the circumstances, the applicant husband has clearly failed to prosecute his claim against the second-named respondent, and in light of the manner in which he has conducted the proceedings, an order for costs is appropriate.  He will, clearly, have the opportunity to make submissions with respect to the quantum of those costs and how they are to be paid.

6. I will reserve the first-named respondent’s costs of this day and I will otherwise make orders to set the matter down for trial.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 16 August 2012.

Associate: 

Date:  4 September 2012