PHONG AND ANOR & SCOTT
[2020] FamCAFC 156
•25 June 2020
FAMILY COURT OF AUSTRALIA
| PHONG AND ANOR & SCOTT | [2020] FamCAFC 156 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the respondent’s appeal against an indemnity costs order was abandoned – Where the respondent filed an Application in an Appeal in relation to the abandoned appeal and that application was subsequently discontinued – Where the applicants seek their costs of that application – Where the respondent was entirely unsuccessful in his application – Where the respondent’s conduct of the proceedings generally, the appeal and the application justify a costs order – Respondent to pay the applicants’ costs in a fixed sum. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the respondent filed an Application in an Appeal seeking an adjournment prior to the hearing – Where there was no appearance by the respondent at the hearing – Where the point of the adjournment is unknown – Application dismissed. |
| Family Law Act 1975 (Cth) s 117(2A) Family Law Rules 2004 (Cth) rr 22.21, 22.40, 22.44 |
| FIRST APPLICANT: | Mr Phong |
| SECOND APPLICANT: | Ms Phong |
| RESPONDENT: | Mr Scott |
| FILE NUMBER: | SYC | 59 | of | 2010 |
| APPEAL NUMBER: | EAA | 126 | of | 2019 |
| DATE DELIVERED: | 25 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 25 June 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 October 2019 |
| LOWER COURT MNC: | [2019] FamCA 765 |
REPRESENTATION
| COUNSEL FOR THE FIRST AND SECOND APPLICANTS: | Mr Zipser |
| SOLICITOR FOR THE FIRST AND SECOND APPLICANTS: | V Lawyers |
| THE RESPONDENT: | No appearance |
Orders
The Application in an Appeal filed on 23 June 2020 is dismissed.
The respondent is to pay the applicants’ costs fixed in the sum of $4,700.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Phong and Anor & Scott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 126 of 2019
File Number: SYC 59 of 2010
| Mr Phong |
First Applicant
And
| Ms Phong |
Second Applicant
And
| Mr Scott |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an application for costs of an Application in an Appeal where the application was discontinued and the appeal itself was abandoned.
There is no appearance this morning from Mr Scott (“the respondent”), who was the appellant in the appeal. It is quite clear that the respondent is aware of the hearing this morning for at least two reasons: one is that he filed with the Appeals Registry an Application in an Appeal seeking an adjournment of this hearing for two weeks; and he filed an affidavit in support of that application sworn on 19 June 2020. That affidavit explains that he seeks an adjournment for a fortnight because his aunt passed away in early June 2020 and he also has another Court hearing tomorrow, for which he is struggling to prepare.
The Appeals Registry advised the respondent that his application for an adjournment would have to be made in open Court this morning. I understand that the respondent has again contacted the Appeals Registry this morning about his adjournment and was again advised that any application for an adjournment should be made at the commencement of the hearing this morning.
This hearing is taking place via Microsoft Teams. The parties were advised on 3 June 2020 that this would be the case and advice was put in place to facilitate the parties joining the proceedings via Microsoft Teams.
People who have difficulties for whatever reason in joining Court proceedings by Microsoft Teams are able to join the proceedings by way of telephone. There has been no suggestion from the respondent that he is unable to access either Microsoft Teams or a telephone in order to join the proceedings. The respondent has been aware of this hearing since at least 3 June 2020, which in my opinion, has given him ample time to prepare for what is quite a straight forward application. He has not sought to join the Microsoft Teams hearing this morning.
I have considered, nonetheless, whether or not the respondent should be granted the adjournment for the reasons set out in his affidavit. The difficulty, however, is that the respondent does not identify what he proposes to do, if he is given an adjournment for a fortnight, that he has not now been able to do, by reason of the passing of his aunt or the other hearing tomorrow. The point, therefore, of the adjournment is unknown and I have decided to proceed with the matter today.
On 23 October 2019, a judge of the Family Court of Australia ordered the respondent and a company named I Pty Ltd to pay the costs of Mr Phong and Ms Phong (“the applicants”) on an indemnity basis. The respondent filed a Notice of Appeal against that order on 19 November 2019. His appeal was taken to be abandoned on 20 March 2019, pursuant to r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”), because the respondent failed to file the Appeal Books by the date ordered by the Appeals Registrar.
The respondent then filed an Application in an Appeal, which sought to review the Registrar’s decision of 20 March 2020. Rule 22.40 of the Rules provides that “[a] party may apply for a review of a Regional Appeal Registrar’s order relating to the conduct of an appeal by filing an Application in an Appeal in the Regional Appeal Registry, within 14 days after the order is made.”
However, the difficulty with the respondent’s application was that the appeal was not taken to be abandoned because of a decision of the Appeals Registrar but rather because of the operation of the Rules. The application was therefore misconceived. Nonetheless, it is quite likely that on the hearing of the respondent’s application it would have been treated as an application for reinstatement of the appeal pursuant to r 22.44 of the Rules.
On 28 April 2020, the Appeals Registry informed the parties, including the respondent, that the respondent’s application was listed for hearing on 7 May 2020 before me. The respondent then took a number of exceptions to that course, including the fact that it had been listed before me because I had previously heard and dismissed an application made by him. The respondent was advised that if he wished to make an application for my disqualification, it would be necessary for him to appear at the hearing and make that application.
After some considerable correspondence between the Appeals Registry and the respondent, he indicated that he proposed to discontinue the application and on 5 May 2020 the Appeals Registry received a Notice of Discontinuance, thus putting an end to that application and to the prospect of the appeal being reinstated.
During that time, the present applicants had engaged a barrister to appear at the hearing of that application and that barrister had prepared lengthy submissions for the assistance of the Court. Those costs, of course, have now been entirely wasted.
It follows from what I have said, that the respondent was wholly unsuccessful in his application within the terms of s 117(2A)(e) of the Family Law Act 1975 (Cth) (“the Act”).
The evidence of the applicants satisfies me that this is but the last stand in proceedings that have been marked by their length, which has been substantially caused by the respondent’s persistent and meritless applications to the Court. Thus, a costs order is also justified under s 117(2A)(g) of the Act as to the conduct of the proceedings generally and under s 117(2A)(c) of the Act in relation to the conduct of this appeal and the respondent’s application.
Costs are sought by the applicants in the sum of $5,496. This is in fact a claim for indemnity costs because that is the amount of legal costs that the applicants have incurred. There is, however, no formal application for indemnity costs.
The usual practice of the Court in that case is to award costs at scale, however, the Court is at large to fix costs. It would affect an injustice on the applicants if they were forced to endure yet another Court proceeding, such as an assessment of costs, involving the respondent and the Court.
Accordingly, I propose to fix the applicants’ costs, which will be at a sum larger than at scale, but I am satisfied that the amounts claimed by the applicants are reasonable and the legal costs that have been charged to the applicants are reasonable, and in those circumstances, doing the best that I can on the evidence, I will fix the applicants’ costs in the sum of $4,700.
Accordingly, the respondent is ordered to pay the applicants’ costs in the sum of $4,700.
I certify that the preceding eighteen (18) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Aldridge delivered on 25 June 2020.
Associate:
Date: 30 June 2020
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