Stativa and Stativa

[2018] FamCA 624

FAMILY COURT OF AUSTRALIA

STATIVA & STATIVA [2018] FamCA 624

FAMILY LAW – PRACTICE AND PROCEDURE – Application to review a registrar’s decision out of time – Where the application was filed out of time – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 19.32, 19.54, 19.55

Cummings Corporation Pty Ltd & Child Support Registrar and Balnaves (1995) FLC 92-643
McMahon & McMahon (1976) FLC 90-038

APPLICANT: Mr Stativa

RESPONDENT: Ms Stativa

FILE NUMBER: MLC 9079 of 2009

DATE DELIVERED: 1 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 1 August 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That the Application in a Case filed 29 June 2018 be otherwise dismissed.

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 Stativa & Stativa 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 MELBOURNE

FILE NUMBER: MLC 9079 of 2009

Mr Stativa

Applicant

And

Ms Stativa

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today upon an Application in a Case filed on behalf of the husband, Mr Stativa.

2. That application was filed on 29 June 2018 and is supported by his affidavit, also filed 29 June 2018. 

3. The application before the Court seeks a review of the decision of a registrar in relation to a Costs Assessment Hearing conducted by her, which resulted in final orders being made with respect to those issues on 31 May 2018.

4. The application for review is opposed by the respondent wife.  Both the applicant and the respondent appear before me in person today. 

5. The order made by Registrar Sudholz which is the subject of review provides that, pursuant to r 19.32 of the Family Law Rules 2004 (Cth) (“the Rules”), it is ordered that the amount payable by the applicant to the respondent in respect to the Further Amended Itemised Cost Account filed with the court on 19 December 2017 is $7,440.54.

6. The applicant husband challenges that assessment, asserting that the liability should be reduced to an amount of something in the order of $3,000.  Specifically, he challenges assessments totalling approximately $4,700.

7. When the matter came before me today, I raised with the applicant my concern that his application had been filed out of time.  I directed his attention to the rules of court. 

8. It is evident that the order made by the registrar is a rule made pursuant to r 19.32 of the Rules, it being an order arising at the conclusion of an assessment hearing. It is evident that a request was made for Reasons for Judgment in relation to that review. The Reasons for Judgment were forwarded by email to the parties by the Melbourne Case Coordinators on 1 June 2018.

9. That email is significant, as not only does it provide to the parties both a copy of the assessment order and the Reasons for Judgment; it also directs the parties’ attention to the Rules relevant to an application seeking a review of that decision. That email reads as follows:

   Please find attached a copy of the reasons for judgment and the Assessment Order arising out of the taxation assessment file SOA36 of 2016.  Pursuant to Rule 19.32(5): “A cost assessment order under this rule has the force and effect of an order of the court”. 

   [Mr Stativa] has also indicated that he may like to review the Registrar’s judgment.  Please find attached an Application in a Case and an Affidavit, which you will need to complete, file and serve in order to review the Registrar. 

   Please also read RULE 19.54- Application for a review of the Family Law Rules 2004. This explains how to review an assessment made under rule 19.32.

10. Both the applicant and respondent have confirmed their receipt of that email from the Melbourne Case Coordinator. Part 19.8 of the Rules deals with the review of assessment. Rule 19.54 of the Rules identifies the documents to be filed in relation to an application for review. Rule 19.55 of the Rules provides the time for filing of an application for review. It says:

    An application for review must be filed within 14 days after the applicant receives the Registrar’s reasons given after a request made under subrule 19.32(4). 

11. It is evident that the parties received by email a copy of the Reasons for Judgment on 1 June 2018.  Therefore, the applicant’s application for review should have been filed by 15 June 2018.  As I have already noted, that application was not, in fact, filed until 29 June 2018. Given those circumstances, the applicant sought to make an oral application for extension of time to press this application before the court today.  That application was opposed by the respondent.

12. Rule 1.14 of the Rules provides for a party to apply to the court to shorten or extend any time fixed by the rules, and that that application may be made even if, as in this case, the time fixed by the relevant rule has passed. The principles governing an application to extend time in relation to an appeal were considered by Evatt CJ in McMahon & McMahon (1976) FLC 90-038. There her Honour stated:

    The general principles governing applications for leave to extend time are established by a number of cases.  In summary, the applicant must show that there are adequate reasons which explain the delay; that there is a substantial issue to be raised on appeal; and that no hardship or injustice is caused to the respondent which cannot be compensated by orders as to costs or otherwise.

13. Such matters were further considered by the Full Court in the decision of Cummings Corporation Pty Ltd & Child Support Registrar and Balnaves (1995) FLC 92-643. In that decision, the Full Court referred to the decisions of McHugh J in Gallo v Dawson (1990) 93 ALR 479, wherein it is noted:

    The grant of an extension of time under this rule is not automatic.  The object of the rule is to ensure that those rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties.  This means that discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of litigation and the consequences for the parties of the grant or refusal of the application for extension of time…

    (citations omitted)

14. The matter the subject of dispute between these parties is costs in the order of approximately $4,700.  It is a dispute that has raged between these parties for a considerable period of time.  The material that the applicant has filed has indicated that there were at least two hearings before Registrar Sudholz in relation to these issues. 

15. It is evident from the material filed on behalf of the applicant that significant Court time has already been devoted to a dispute in relation to what is certainly an amount less than $5,000.  At paragraph 1 of his affidavit, the applicant indicates that the matter was before the Court for the Costs Assessment on 9 May 2018, and that there was a further telephone conference with the Registrar on 31 May 2018. 

16. The costs order which gives rise to the proceedings is an order made by Strickland J following an appeal.  It is evident that the applicant’s attention was directed to the relevant rules in relation to the review process on 1 June 2018, the day following the assessment. 

17. The applicant, in providing an explanation for the delay, asserted that he had been told by the Registrar and, indeed, had received an email from the Registrar informing him that he had 28 days to file that application.  A review of the Court file does not indicate that any such email has been forwarded to the applicant. 

18. I invited the applicant to have the matter stood down so that he could identify that email on his mobile phone device.  He declined that invitation, stating that he does not store emails on his telephone.  The applicant further asserted that he was having email communication direct between he and the Registrar, and that that communication did not include and was not copied to the respondent.  Were such communication to have occurred, it would have fallen well outside the boundaries of what is appropriate communication between the Court and a litigant.  Absent evidence confirming those assertions, I do not accept those submissions. 

19. In my view, the interests of justice is not served by granting the extension of time sought by the applicant. The dispute between these parties is de minimis, having regard to the quantum of costs disputed and the amount of Court time that has already been devoted to the consideration of the dispute and the determination of that dispute. The applicant was on notice from the day following the determination as to the relevant Rules regarding the assessment process and the review of that assessment.

20. In those circumstances, I am satisfied that it is appropriate, firstly, to dismiss the oral application seeking an extension of time, and further to dismiss the application in a case listed before the Court.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 August 2018.

Associate: 

Date:  1 August 2018