SCVG and KLD (No 2)

[2017] FamCA 721

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO. 2) [2017] FamCA 721

FAMILY LAW – Application to review cost assessment order – dispensing with rules

Family Law Rules 2004 (Cth)  rr 1.07, 1.12, 19.31, 19.37(3), 19.38, 19.54

APPLICANT: Mr SCVG

RESPONDENT: Ms KLD

FILE NUMBER: SYC 4380 of 2008

DATE DELIVERED: 18 August 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 18 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Macphillamy Lawyers

Orders

1. The Application in a Case filed by Mr SCVG on 4 August 2017 is dismissed.

2. The costs of the respondent to that application are reserved to be dealt with following either the determination of the application for leave to file an application under part 19.8 of the Rules, or the determination of a review following leave granted, if it is granted for that matter.

IT IS FURTHER ORDERED THAT

1. Leave is granted to Mr SCVG to file an application for review pursuant to Rule 19.54 of the Family Law Rules by no later than 4pm on 21 August 2017, provided that any such application and supporting material is filed strictly in accordance with the Rules within that time period.

2. The reserved costs in the dismissed application in a case dealt with today are to be dealt with as part of the determination of any review of assessment pursuant to an application filed by Mr SCVG or in default of the filing of an application for review of assessment may be dealt with on the appropriate relisting of the matter at the request of Ms KLD.

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 SCVG & KLD (No 2) 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).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 4380 of 2008

Mr SCVG

Applicant

And

Ms KLD

Respondent

REASONS FOR JUDGMENT

Application in a Case filed 4 August 2017

1. Mr SCVG, by Application in a Case filed 4 August 2017, has sought an order from this Court to set aside the cost assessment order made by Registrar Payget on 27 July 2017, as amended on 31 July 2017.  The power to set aside such an order is contained at Rule 19.38 which provides that a party may, within 14 days after receiving the cost assessment order, apply to have it set aside.  Mr SCVG’s application is to set aside and goes no further than that.  Accordingly, it is to be taken to be an application made under Rule 19.38.  The application of Rule 19.38 is restricted to costs assessment orders made under Rule 19.31 or sub Rule 19.37(3).  Both of those occasions occur where there has been no notice disputing itemised cost account provided by the respondent in a cost assessment.  In this cost assessment Mr SCVG provided a notice disputing itemise cost account and accordingly, there is no application of Rule 19.38.

2. On application by Ms KLD it is sought that I dismiss the application.  After hearing further from Mr SCVG, I have determined that Rule 19.38 and the power to set aside has no application in this case and as his application is reliant upon that Rule, I dismiss the case.

3. An application for costs was made in the response to the Application in a Case filed by Mr SCVG.  I am invited by Mr Macphillamy, who appears for Ms KLD, to reserve the determination of that until after the determination of Mr SCVG’s oral application for leave to apply for a review of assessment under Rule 19.8.  There is no objection from Mr SCVG to such a course of action and so I will accede to it.

Oral application – 18 August 2017

1. Application is made before the Court orally today by Mr SCVG to seek a review of the costs assessment order made by Registrar Payget on 27 July 2017, as amended on 31 July 2017. 

2. Mr SCVG had previously made an application to have the order set aside which was reliant upon a provision that has no application in a case, accordingly, that application was dismissed this morning. In consequence of that Mr SCVG has made oral application today for leave to file out of time in respect of an application for review pursuant to Rule 19.54. That application for leave to file such an application out of time is opposed. The Rules specify that such an application is to be made within 14 days of the provision of reasons by the Registrar.

3. There seems to be no dispute that the application would now be made more than 14 days since the provision of those reasons. 

4. The main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case.  I am to bear in mind the main purpose of the Rules in determining this application.  Those Rules, at Rule 1.07, direct me to apply the Rules in a way that deals with each case fairly, justly and in a timely manner, but also promotes the saving of costs and gives an appropriate share of the Court’s resources to a case taking into account the needs of other cases.  I do not ignore the balance of the Rules contained at 1.07 in consideration of this matter. 

5. Specifically, Rule 1.12 deals with the Court dispensing with the Rules.  In doing so I am to consider the main purpose of the Rules, the administration of justice, whether the application has been promptly made, whether non-compliance was intentional and the effect that granting relief would have on each party and parties to other cases in the Court.  Of particular consequence, both under the main purpose of the Rules and in considering the administration of justice, is the importance of access to courts and that people who have access to the courts are able to have their disputes determined by the courts.  It is a serious matter to prevent somebody from having a case determined on its substantive merits.

6. In this case Mr SCVG has made an application under the wrong provision.  That application was promptly made and made within time.  He has given evidence which was not the subject of challenge and to be fair to Mr Macphillamy would have been difficult to challenge in any event as to a discussion as to procedural steps to be taken in terms of review of the cost assessment orders made by Registrars.  As a consequence of that, I am unable to find that the non-compliance with the Rules in failing to apply for a review within 14 days was intentional.  It appears on the face of the matter that Mr SCVG filed within time simply pursuant to the wrong Rule.  If he is not granted leave he will be shut out from the potential relief that a review of the Registrar’s determination may give in what is a substantial costs matter.  The effect of granting relief to him means that Ms KLD is open to the prospect of review, however, in considering that matter I note that Ms KLD has been on notice since Mr SCVG filed his application to set aside, that the costs award made by Registrar Payget was under dispute.  Accordingly, and with particular emphasis on the requirements of the administration of justice in this case I will grant leave on terms to Mr SCVG to make the application.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 August 2017.

Associate: 

Date:  18 August 2017