Xie and Zhao (No.2) - [2009] FMCAfam 1303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XIE & ZHAO (No.2)

[2009] FMCAfam 1303

FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside judgment pursuant to Federal Magistrates Court Rules2001, r.16.05(2)(a) – no reasonable explanation for failing to attend hearing – application dimissed.

Federal Magistrates Court Rules 2001 r.16.05(2)(a)

Aon Risk Services Australia Limited & Australian National University (2009) HCA 27
Clifford & Mountford (2006) FMCAfam 450
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Sali & SPC Limited (1993) 116 ALR 625
Xie & Zhao (2009) FMCAfam 830
Zhao & Xie [2008] FamCAFC 187

Applicant:

MS XIE

Respondent:

MR ZHAO

File Number:

SYM 4331 of 2006

Judgment of:

Altobelli FM

Hearing date:

16 November 2009

Date of Last Submission:

16 November 2009

Delivered at:

Sydney

Delivered on:

16 November 2009

REPRESENTATION

Counsel for the Applicant:

Ms Carr

Solicitors for the Applicant:

Austin Haworth & Lexon Legal

Counsel for the Respondent:

Ms Winfield

Solicitors for the Respondent:

Coelho & Coelho

ORDERS

The application filed 3 September 2009 is dismissed.
The Respondent’s oral application for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Xie & Zhao is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 4331 of 2006

MS XIE

Applicant

And

MR ZHAO

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

The application before me is that of the applicant wife, Ms Xie, filed on 3 September 2009 and which comes before me in today’s duty list. She makes application under rule 16.05(2)(a) of the Federal Magistrates Court Rules that I set aside the order that I made on

30 July 2009. In the alternative, she seeks an order that my said order be stayed.
The wife’s case was argued by her counsel on the basis that the order should be set aside principally because her understanding of the English language was so limited that she, in effect, became confused about the hearing dates, made certain enquiries and was subsequently, in effect, misinformed and did not attend court until after her matter had been dealt with on the second day of the allocated hearing. The wife’s application was supported by her affidavit affirmed on

31 August 2009, a statement that she made today and which was subsequently confirmed in the oral evidence she gave, and by an affidavit of her solicitor Daniel Sheen, also affirmed on 31 August 2009.
By way of a response, dated 11 November 2009, the respondent

Mr Zhao asks that the wife’s application be dismissed. He also seeks a number of ancillary orders, but whether I would make those orders largely depends on whether or not I dismiss the wife’s application. The response is supported by an affidavit of James Coelo, the husband’s solicitor in these proceedings.
An application under rule 16.05 basically says that a court may vary or set aside its judgment or order before it has been entered, or specifically in this a case…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCAfam 1303
Decision Date: 16 November 2009

CaseChat Overview and Summary

In the matter of Xie and Zhao (No.2), the applicant, the wife, sought to enforce a prior order for the respondent, the husband, to pay lump sum child support and lump sum adult child maintenance. The Federal Magistrates Court was tasked with deciding whether the application should be dismissed due to the applicant’s failure to attend the final hearing. The court considered the statutory basis for dismissal under rule 13.03A of the Federal Magistrates Court Rules 2001 and whether the applicant had failed to prosecute the proceeding with due diligence. The applicant had not attended the hearing, despite having been provided with clear notice and multiple opportunities to seek clarification on the hearing dates.

The court examined the evidence presented, including sworn statements from the applicant’s interpreter and an operator from the National Enquiry Centre. The interpreter testified that the applicant believed the hearing would occur the following day, while the operator confirmed that the applicant had been correctly informed of the hearing dates two days prior. The court found that the applicant had been adequately informed and had failed to attend without a valid reason, leading to the conclusion that she had not prosecuted the proceeding with due diligence. Based on this finding, the court dismissed the applicant’s application. Additionally, the court dismissed the respondent’s application for costs.

The court’s decision was grounded in the principle that parties must prosecute their claims diligently and in accordance with court orders. The applicant’s failure to attend the final hearing, despite being properly notified, constituted a lack of due diligence, warranting the dismissal of her application. The court’s ruling reflects the importance of adhering to court processes and the consequences of failing to do so.

Orders

Orders of the court

The application filed 3 September 2009 is dismissed.

The Respondent’s oral application for costs is dismissed.

Background

Background to the litigation

Those reasons were published as Xie & Zhao (2009) FMCAfam 830, and I incorporate a number of paragraphs out of that judgment into these reasons: 1. I provide the following ex tempore reasons in the matter of Xie and Zhao. Today was to be the final hearing of the applicant wife’s application filed 10 October 2005 for orders that the respondent husband pay lump sum child support and lump sum adult child maintenance. However, the applicant has not attended in circumstances to which I will shortly refer.2. Counsel for the respondent seeks an order dismissing the application filed 10 October 2005. While she does not specifically articulate the statutory basis of the same, I apprehend it is pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001, the provisions of which I incorporate into these ex tempore reasons:13.03A When a party is in default(1) For rule 13.03B, an applicant is in default if the applicant fails to:(a) comply with an order of the Court in the proceeding; or(b) file and serve a document required under these Rules; or(c) produce a document as required by Part 14; or(d) do any act required to be done by these Rules; or(e) prosecute the proceeding with due diligence.(2) For rule 13.03B, a respondent is in default if the respondent:(a) has not satisfied the applicant’s claim; and(b) fails to: (i) give an address for service before the time for the respondent to give an address has expired; or(ii) file a response before the time for the respondent to file a response has expired; or(iii) comply with an order of the Court in the proceeding; or(iv) file and serve a document required under these Rules; or(v) produce a document as required by Part 14; or(vi) do any act required to be done by these Rules; or(vii) defend the proceeding with due diligence.Background3. By way of background, firstly, I do not intend to repeat the comprehensive statement of background that is contained in paragraphs 1 to 54 of the Full Court’s decision in this case, is reported as (2008) FAMCAFC 187. I will instead set out a brief procedural background, since the appeal was determined. 4. The matter first came before me on 13 February 2009, and I note in this regard that the Full Court’s orders were made 28 November 2008. It is the practice in this court to seek to expedite the re-hearing of appeals from this court, to the extent that that is possible. The matter first came before me on 13 February 2009. The applicant was represented by her solicitor, Ms Chen, and Ms Winfield of counsel appeared for the respondent. On that date I ordered the parties to attend a conciliation conference and set the matter down for hearing on 30 July 2009 at 10.00am for a two-day hearing. I also made directions about filing the amended application and possibly an amended response as well as a timetable for filing affidavits. 5. The matter then again came before me on 18 May 2009 and that was following a conciliation conference. The note of the conference indicates that the parties had reached an “in-principle” agreement but the wife needed the assistance of an interpreter and independent advice before orders were made. When the matter came before me on 18 May the applicant was appearing in person and again Ms Winfield appeared for the respondent. I had certain discussions with the applicant in court and there was no doubt in my mind that she was aware of what was going on, and certainly, on that day the hearing on 30 July, was confirmed.6. Nonetheless, the matter was adjourned to 29 May, and that was in response to the applicant’s request that she wanted to get some legal advice. The matter came before me again on 29 May 2009. The applicant represented herself and Ms Winfield again appeared for the respondent, and the matter was confirmed for hearing today. That means there were three mentions before today. At two of these, the applicant was present in person.7. In relation to the application for dismissal I deal with the following evidence. The wife’s interpreter gave sworn evidence today about a discussion that he had with the applicant. The interpreter, Mr T, indicated to me in evidence that he spoke to the applicant this morning on her mobile and she indicated to him words to the effect that she did not realise that the hearing would take place today, and that she had taken the initiative to ring the court yesterday and was told to come to court tomorrow, 31 July.8. In the conversation between Mr T and the mother there was also reference to the mother having rung the court as I have just indicated. As a result of that, I caused enquiries to be made with the National Enquiry Centre that is operated by the Family Law Courts. One of the operators of that service, Ms M, was able to give sworn evidence to the court in the following terms. Ms M did have communication with the applicant, but it was not yesterday, it was the day before, namely, Tuesday 28 July. The applicant indicated to Ms M that she wanted to confirm the court dates, and this was confirmed as being 30 and 31 July at 10 am. Ms M indicated that nothing else relevant was said.9. That is the evidence specifically in the context of the application for dismissal. In terms of the evidence of the proceedings generally, the case has a very long history and the material filed is vast and indeed, perhaps disproportionate to the issue, but that happens when litigation lingers for such a long period of time.10. I am going to specifically identify the material filed on behalf of the applicant. There is her application for final orders filed 10 October 2005. There is an affidavit sworn 7 October 2005, filed 10 October 2005, an affidavit of the applicant sworn 1 November 2005 and filed on that date, an affidavit of the applicant sworn 12 December 2006 and filed on 13 December 2006. There is an affidavit of Ms Z, who is, I understand, the oldest daughter of the applicant and respondent that was sworn 7 December, filed 10 October 2005. Another sworn 1 November 2005 and filed on that date. Another sworn 12 December 2006 and filed 13 December 2006. Another sworn 12 February 2008 and filed 14 February 2008. The applicant has also filed two financial statements on 10 October 2005 and 9 September 2008.11. The material that is relied on by the respondent is contained in a table on the first page of the chronology and outline of case document prepared by Ms Winfield, counsel for the respondent, and I will simply incorporate that list into these, my ex tempore reasons.APPLICATIONS Sworn Filed

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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