Ying and Lang

[2016] FamCA 1179

FAMILY COURT OF AUSTRALIA

YING & LANG [2016] FamCA 1179

FAMILY LAW – COSTS – respondent seeks costs of the day – applicant seeks an order reserving costs – whether costs of the day were thrown away – applicant not ready to proceed with s 128 certificate or injunctive relief applications – whether costs of the day were thrown away in circumstances where another hearing would have been necessary to determine jurisdictional issue – whether costs of the day should be fixed.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Ying

RESPONDENT: Ms Lang

FILE NUMBER: DGC 2474 of 2015

DATE DELIVERED: 5 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 5 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Chen

SOLICITOR FOR THE APPLICANT: Hymans Solicitors

COUNSEL FOR THE RESPONDENT: Mr Lim

SOLICITOR FOR THE RESPONDENT: Francis Lim Barristers & Solicitors

Orders

1. Paragraph 2 of the applicant’s amended initiating application filed 1 April 2016 for a declaration pursuant to s 9RD of the Family Law Act 1975 (Cth), the applicant’s application in a case filed 24 May 2016 and the respondent’s amended response to initiating application filed 21 June 2016 be placed in the list of cases awaiting allocation to a judicial docket with priority from the date of this order AND THE COURT NOTES that the parties estimate that the matter will require between four and six days.

2. Liberty be reserved to the parties to apply with respect to injunctive relief at the hearing of the jurisdictional issue.

3. The applicant’s costs of this day be fixed in the sum of $990 and the respondent’s costs of this day be fixed in the sum of $1,005 and be reserved to the final hearing of the application for a declaration pursuant to s 9RD of the Family Law Act 1975 (Cth).

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 Ying & Lang 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: DGC 2474 of 2015

Mr Ying

Applicant

And

Ms Lang

Respondent

REASONS FOR JUDGMENT

1. The respondent in this matter seeks an order that the applicant pay her costs of this day fixed in the sum of $1,005.  The applicant, for his part, seeks an order reserving both parties’ costs of this day to the hearing of the jurisdictional issue in this case.  This matter has a lengthy history, firstly, in the Federal Circuit Court and, since early 2016, in this Court.  On 16 March 2016, the first listing of the matter in this Court, Registrar Field ordered as follows:

   (1)       That the Applicant file and serve an Amended Initiating Application setting out with precision the final and interim orders sought no later than 31 March 2016.

   (2)       That the Respondent file and serve an Amended Response (if required) setting out with precision the final and interim orders sought no later than 15 April 2016.

   (3)       The matter is otherwise adjourned to the Judicial Duty List on 3 May 2016 at 10.00 a.m. at which time the Applicant intends to seek a certificate pursuant to s128 of the Evidence Act 1995 [(Cth)].

2. That application for a certificate was contained in the applicant’s Amended Initiating Application filed on 1 April 2016.  The parties agreed to an adjournment of the matter which was listed in the Judicial Duty List on 3 May 2016 to today’s date.  In the intervening period, the applicant filed an Application in a Case on 24 May 2016 in which he sought orders that, pending the final determination of these proceedings or further orders, that the respondent be restrained from doing any act or thing or causing any act or thing to be done which has the purpose or effect of transferring, assigning, mortgaging, encumbering, charging or otherwise dealing with his interest in property, whether at law or in equity, and from interfering with his exclusive occupancy of the property at B Street, Suburb C, Victoria.

3. Following the adjournment of the matter, the respondent filed an Amended Response to Initiating Application on 21 June 2016 in which she sought on both a final and interim basis an order that the applicant, his servants, agents or otherwise be restrained from entering or occupying the property situated at B Street, Suburb C or, in any other way, interfering with her use of that property.  Clearly, neither the Application in a Case or those orders sought by the respondent for injunctive relief were anticipated when Registrar Field made her order on 16 March 2016. 

4. The order that I propose to make, based upon both parties having determined not to proceed with their respective applications for injunctive relief this day, is that the applicant’s application for a declaration as to the relationship between he and the respondent and their respective applications for injunctive relief will be placed in the list of cases awaiting hearing. 

5. Whilst it is a threshold jurisdictional issue, it is anticipated or estimated by the applicant that it will take four to five days and by the respondent at least six days of hearing. It is on that basis that the matter is to be placed in the list of cases awaiting hearing. The respondent’s case is that his client’s costs of this day have been thrown away because the applicant was not ready to proceed with the application, either for a s 128 of the Evidence Act 1995 (Cth) certificate (‘s 128 certificate’) or for the injunctive relief. It is submitted on behalf of the applicant that the costs of this day have not been thrown away and that the matter is now to be placed in the list of cases awaiting a hearing and will ultimately eventually proceed to a hearing on that basis.

6. Whilst it is correct that the applicant, based upon the material before me, was not ready to proceed with his application for a s 128 certificate, it is also the case that, on the basis of the orders made by Registrar Field, another hearing, whether it was for a s 128 certificate or simply for procedural directions, would have been required for the matter to proceed to the list as is now to occur.

7. The general rule in cases in this Court is that each party to the proceedings shall bear his or her own costs. That general rule is subject to s 117(2) of the Family Law Act 1975 (Cth) (‘the Act’) which provides that:

8. If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. Section 117 (2A) sets out the matters to which the Court must have regard in determining what, if any, orders should be made for costs insofar as they are relevant.  The only matter the applicant relied upon in this case was, the applicant’s conduct, based upon the matter not being ready to proceed.

9. In circumstances where the matter is to be placed in the list of cases awaiting allocation to a judicial docket and where neither party is proceeding with their respective applications for injunctive relief and will await a hearing of what is often referred to as the threshold issue I am not satisfied that this is a case in which I should depart from the general rule as to costs. The issue of the section 128 certificate is an issue that, in my view, should properly be dealt with by the judge before whom the matter is to be listed for a hearing of that threshold issue.

10. Although I am not satisfied that it would be just to make an order for costs in this case I am satisfied that it is appropriate to reserve the costs of both parties.  There is in this case a threshold issue which will have a significant impact on the outcome of the case to the extent that if that application for a declaration does not succeed, there will be no case.  On the other hand, if a declaration as to the relationship does exist, there will, no doubt, ultimately be an application by the applicant that the respondent pay his costs.  The costs of these preliminary steps in the proceedings, in my view, form part of the case and, on that basis, I propose to reserve the costs of both parties. 

11. I also propose to fix those cost. I will fix the applicant’s costs of this day in the sum of $990 and the respondent’s costs of this day fixed in the sum of $1,005 and reserve both parties’ costs of this day to the final hearing of the application for a declaration pursuant to section 90RD of the Act.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 5 July 2016.

Associate: 

Date:  21 July 2017