Tong and Niem

Case [2019] FamCA 551


FAMILY COURT OF AUSTRALIA

TONG & NIEM [2019] FamCA 551
FAMILY LAW – PRACTICE AND PROCEDURE – DISQUALIFICATION – Where application for disqualification on the basis of apprehended bias – Where discussion of applicable principles – Where basis for application not made out – Where application dismissed
Family Law Act 1975 (Cth) ss 69ZN, 69ZQ, 69ZR
Family Law Rules 2004 (Cth) r 1.04, 11.01
Australian Securities and Investment Commission v Reid [2005] FCA 1274
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Isbester v Knox City Council (2015) 89 ALJR 609
Johnson v Johnson (2000) 201 CLR 488; (2000) FLC 93-041
Niem & Tong [2016] FamCA 1089
Niem & Tong [2017] FamCA 134
Niem & Tong [2018] FamCA 1072
Sellers & Burns [2019] FamCAFC 111
Smits and Another v Roach and Others (2006) 228 ALR 262
Strahan and Strahan (disqualification) (2009) FLC 93-414
Vakauta v Kelly [1989] HCA 44
APPLICANT: Mr Tong
RESPONDENT: Ms Niem
INDEPENDENT CHILDREN’S LAWYER: Ms Truong
FILE NUMBER: PAC 3572 of 2014
DATE DELIVERED: 15 August 2019
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Foster J
HEARING DATE: 16 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spain
SOLICITOR FOR THE APPLICANT: Steven Stefanou & Co
COUNSEL FOR THE RESPONDENT: Mr Givney
SOLICITOR FOR THE RESPONDENT: Maclarens Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

  1. That the Application for Disqualification be dismissed.

  2. That any application for costs be by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days.

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 Tong & Niem 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 PARRAMATTA

FILE NUMBER: PAC 3572  of 2014

Mr Tong

Applicant

And

Ms Niem

Respondent

REASONS FOR JUDGMENT

  1. The present application for determination arises in the context of long running parenting and property proceedings between the applicant mother and respondent father.

  2. On 17 May 2019 the father filed an Application in a Case seeking the following orders:

    a)that Justice Foster be disqualified from further hearing the proceedings which bears (sic) the file number PAC 3572/2014; and

    b)that pending the relief sought the proceedings be stayed.

  3. The history of the proceedings as at early 2017 was set out in an earlier judgment where the father sought that the Court be disqualified: Niem & Tong [2017] FamCA 134:

    1.In these proceedings commenced in August…

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AGLC
Tong and Niem [2019] FamCA 551
Case
[2019] FamCA 551
Decision Date

CaseChat Overview and Summary

In the matter of *Tong and Niem*, Foster J of the Supreme Court of New South Wales was required to determine an application for the disqualification of a director. The specific grounds for the application and the nature of the company or business involved were not detailed in the provided text.

The central legal issue before the Court was whether the conduct of the director warranted disqualification. This required an assessment of the director's actions against the relevant provisions of the Corporations Act 2001 (Cth) or any other applicable legislation governing director conduct and disqualification.

Foster J dismissed the application for disqualification. While the specific reasoning is not elaborated upon in the provided text, the outcome indicates that the Court found the grounds for disqualification were not met on the facts presented. The Court then made orders regarding the process for any subsequent applications for costs, requiring written submissions from the parties within specified timeframes.

Orders

Orders of the court

1.

That the Application for Disqualification be dismissed.

2.

That any application for costs be by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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