Vang & Chung (No 2)
[2023] FedCFamC1F 814
•26 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vang & Chung (No 2) [2023] FedCFamC1F 814
File number: SYC 1433 of 2020 Judgment of: CAMPTON J Date of judgment: 26 September 2023 Catchwords: FAMILY LAW– COSTS – Where third parties seek their party/party costs against the wife for their successful objections to subpoenas issued by her – Where the wife opposes the cost orders – Where financial circumstances for the third parties are unknown – Where the financial circumstances of the wife are modest – Application for costs dismissed. Legislation: Family Law Act 1975 (Cth) s 117) Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: In chambers Place: Sydney Counsel for the Applicants: Ms Granger Solicitor for the Applicants: Clayton Utz First Respondent: Litigant in person Second Respondent: Broun Abrahams Burrket (did not participate) ORDERS
SYC 1433 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: Y COMPANY
First Applicant
MR V
Second Applicant
AND: MS VANG
First Respondent
MR CHUNG
Second Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
26 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application for costs as made by Y Company in its Application in a Proceeding filed 9 June 2022 and pursuant to the orders made by a judge of the Federal Circuit and Family Court of Australia Division 2 on 12 August 2022 is dismissed.
2.The application for costs as made by Mr V in his Application in a Proceeding filed 9 June 2022 and pursuant to the orders made by a judge of the Federal Circuit and Family Court of Australia Division 2 on 12 August 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vang & Chung (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
These reasons determine applications for costs as made by Y Company and Mr V (together, “the objectors”) subsequent to their successful objections to subpoena issued at the request of Ms Vang (“the wife”) in the course of proceedings for property settlement between she and Mr Chung (“the husband”) by way of determination of a judge of the Federal Circuit and Family Court of Australia Division 2. That judge, after directing and receiving submissions, transferred the proceeding to the Federal Circuit and Family Court of Australia Division 1, prior to determining the costs applications arising from the striking out of the subpoena.
The wife caused subpoena to be issued directed to each objector for the production of documents on 23 March 2022. The objectors each filed on 9 June 2022:
(a)An objection seeking to strike out the subpoena directed to them; and
(b)An Application in a Proceeding seeking that the subpoena directed to each be set aside in part or whole. Mr V sought in the alternative, amendments to the schedule attached to the subpoena.
The objections were heard by the Division 2 judge on 4 August 2022. Judgment was reserved to 12 August 2022.
On 12 August 2022 the following orders were made:
THE COURT ORDERS THAT:
1.The subpoena issued by the Court at the request of the Applicant Wife to [Mr V] dated 23 March 2022 is struck out.
2.The subpoena issued by the Court at the request of the Applicant Wife to [Y Company] dated 23 March 2022 is struck out.
3.The Application in a Proceeding filed on 9 June 2022 by [Mr V] is otherwise dismissed.
4.The Application in a Proceeding filed on 9 June 2022 by [Y Company] is otherwise dismissed.
Costs Application
THE COURT NOTES THAT:
A.The subpoenaed parties [Mr V] and [Y Company] made an application for costs at the conclusion of the hearing on 4 August 2022.
THE COURT FURTHER ORDERS THAT:
5.The Applicants to the costs application are to file any written submissions by no later than 4:00PM on 19 August 2022.
6.The Wife, Respondent to the costs application, is to file and serve any written submissions in relation to the costs application by no later than 4:00PM on 2 September 2022.
7.The Applicants to the costs application may file and serve (if they so choose) any written submissions in reply by no later than 4:00PM 9 September 2022.
8.Upon compliance with these orders for the filing and serving of written submissions, the matter will be considered and orders made in Chambers.
(As per the original)
The oral reasons for the determinations made on 12 August 2022 were not reduced to writing.
Pursuant to the orders made 12 August 2022, the wife filed written submissions on 2 September 2022. The objectors filed written submissions on 19 September 2022.
The matter was listed before the Division 2 judge on 5 October 2022, 5 December 2022, and 15 December 2022. The orders made on each of those days do not record any agitation as to, or determination of, the reservation of the costs applications to chambers.
On 15 December 2022 the following order was made:
1.The proceedings are transferred to Division 1 of the Federal Circuit and Family Court of Australia on a date and at a time to be advised by the National Assessment Team, on the basis that:
a. The case involves international issues
b. The case involves numerous parties
c. The likely length of the case exceeding three days hearing time
d. The case involves:
i. Complex asset structures
ii. Complex valuation issues
iii. The interests of an estate
The reservation of the costs applications to be determined in chambers failed. The reasons for the failure prior to the transfer to Division 1 are unknown.
The objectors contend that subsequent to the transfer they have raised requests with the Division 1 docket judicial registrar to determine their applications for costs. During 2023 the matter has been listed before a delegated judicial officer on seven occasions, before a judge of Division 1 on two occasions, and before the Chief Justice once. The objectors did not explain why they have failed to bring the outstanding costs applications to the attention of a Division 1 judge at those listings.
On 20 September 2023 the solicitors for the objectors by email to my chambers drew attention the fact of their costs applications now being more than 12 months old and not determined and requested that they be determined as soon as possible. On 21 September 2023 the wife emailed my chambers also seeking an expeditious determination of the cost’s applications.
For the reasons that follow, the applications for costs of each objector will be dismissed.
THE COMPETING RELIEF
The objectors seek that the wife pay their costs of the successful objections to subpoena pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”), on a party/party basis.
The wife opposes the applications for costs.
THE LAW
Section 117(2) permits the court to make such orders as to costs as it considers just, if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the court is required to have regard to the matters set out in s 117(2A) of the Act in so far as they are relevant and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient. I shall make reference to such of those matters as are relevant and engaged here.
The Full Court has made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
CONSIDERATION
There is no evidence as to the financial circumstances of either objector. There is no evidence as to the quantum of costs they incurred, or as to the value they contend would be payable by the wife if costs were ordered on a party/party basis.
The gravamen of the objector’s application is that they are disinterested third parties to the proceedings who made a number of attempts to alert the wife as to the problematic content of the schedule to the subpoena as issued, inviting her to withdraw the subpoena or to refine the categories of documents sought to be produced. They say that notwithstanding those attempts the wife pressed unsuccessfully for production in compliance with the subpoena as issued.
They further contend that the conduct of the wife has further import in that her submissions did not engage with the terms of the objections. There is no record as to the reasons why the subpoenas were struck out.
The objectors contend that the wife was “wholly unsuccessful” and that they have incurred unnecessary costs in successfully objecting to an oppressive abuse of process.
The financial statement filed by the wife on 12 June 2023 records that her weekly income is in the sum of $1,740 before tax and is estimated to be $1,188 after tax. Her weekly expenses are estimated to be $2,245, being a weekly shortfall of $1,057. She has real property valued at $650,000 subject to a mortgage of $492,071. She has another loan of $250,000. She has $100 in savings. Her financial circumstances are very modest. On one view she has little if any capacity to pay an order for costs.
The wife contends that she sought opportunities to discuss the content of the schedules to subpoena on a number of occasions with the objectors but was ignored. She submits that the conduct of the objectors in dealing with her as a self-represented litigant was unreasonable.
If I understand the wife’s submissions correctly, it is her case that the objectors hold property beneficially for the husband. The gravamen of her submissions was that she had little understanding as to why the subpoena was struck out.
CONCLUSION
Notwithstanding that the wife was unsuccessfully in opposing the objections, having regard to her modest financial circumstances, the absence as to information as to financial circumstances of the objectors, and the absence of reasons for the determination of the Division 2 judge, I am not satisfied that a consideration of all the s 117(2A) factors in the circumstances of this matter justifies the making of an order for costs as sought by objectors.
For all of the above reasons orders shall be made as set out at the forefront of this judgment.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 26 September 2023
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