ZANDAS & ZANDAS - [2014] FCCA 1184

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZANDAS & ZANDAS

[2014] FCCA 1184

Catchwords:
FAMILY LAW – Parenting – Property – Application for property orders – where Respondent seeks parenting orders – where Application listed for final hearing.

PRACTICE AND PROCEDURE – Where Applicant failed to present case – where Applicant’s case unprepared – where two days of court time wasted – where Applicant’s counsel and solicitor required to show cause why a complaint should not be made to the Office of the Legal Services Commissioner as to their unsatisfactory professional conduct in the handling of the Applicant’s case – undertaking to Court – where Counsel failed to honour undertaking.

COSTS – Whether Applicant should pay the Respondent’s costs of the two hearing days thrown away – indemnity costs – whether costs should be paid on an indemnity basis.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 79, 117

Legal Profession Act 2004 (NSW), s.496

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248
In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197

Applicant:

MR ZANDAS

Respondent:

MS ZANDAS

File Number:

SYC 5680 of 2012

Judgment of:

Judge Scarlett

Hearing dates:

28 & 29 May 2014

Date of Last Submission:

5 June 2014

Delivered at:

Sydney

Delivered on:

11 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Lott

Solicitors for the Applicant:

State Lawyers

Counsel for the Respondent:

Ms Beck (direct brief)

ORDERS

The Applicant is to pay the Respondent’s costs thrown away of the 28 and 29 May 2014 on an indemnity basis.
The Respondent is to file and serve a memorandum setting out the quantum of costs sought within seven (7) days.
The Principal Registrar is to forward to the Office of the Legal Services Commissioner in and for the State of New South Wales a copy of the Reasons for Decision with the request that the Legal Services Commissioner investigate whether Patrick Lott, Barrister, has demonstrated unsatisfactory professional conduct in his representation of the Applicant on 28 and 29 May 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5680 of 2012

MR ZANDAS

Applicant

And

MS ZANDAS

Respondent

REASONS FOR JUDGMENT

Application

The substantive proceedings concern an Application by the husband for property orders and an application by the wife, contained in her Response, for parenting orders. The matter was listed for final hearing on 28, 29 and 30 May 2014 and should have been comfortably heard within that time. Whilst other circumstances meant that the third hearing day had become unavailable, that is of no significance in this case, as the Applicant, over a period of two days, was unable to commence his case at all, so that not a word of evidence was taken. Precisely…

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.

Continue reading ZANDAS & ZANDAS

Details

AGLC: ZANDAS & ZANDAS [2014] FCCA 1184
Case: [2014] FCCA 1184
Decision Date: 11 June 2014

CaseChat Overview and Summary

In the Family Court of Australia, Judge Scarlett considered an application for property orders where the Respondent also sought parenting orders, with the matter listed for a final hearing. The Applicant's case was found to be unprepared, resulting in the waste of two days of court time.

The central legal issues before the court were whether the Applicant should be ordered to pay the Respondent's costs for the two hearing days that were rendered nugatory, and if so, whether those costs should be awarded on an indemnity basis. Furthermore, the court was required to consider the conduct of the Applicant's counsel and solicitor in relation to their handling of the case and an undertaking given to the Court.

Judge Scarlett reasoned that the Applicant's failure to present their case, despite being afforded ample opportunity, constituted a significant waste of judicial resources and caused prejudice to the Respondent. The court found that the conduct of the Applicant's legal representatives, including a failure to honour an undertaking to the Court, warranted a strong response. Consequently, the court ordered that the Applicant pay the Respondent's costs thrown away on an indemnity basis. The Principal Registrar was also directed to forward the reasons for decision to the Office of the Legal Services Commissioner for investigation into the professional conduct of the Applicant's barrister.

Orders

Orders of the court

The Applicant is to pay the Respondent’s costs thrown away of the 28 and 29 May 2014 on an indemnity basis.

The Respondent is to file and serve a memorandum setting out the quantum of costs sought within seven (7) days.

The Principal Registrar is to forward to the Office of the Legal Services Commissioner in and for the State of New South Wales a copy of the Reasons for Decision with the request that the Legal Services Commissioner investigate whether Patrick Lott, Barrister, has demonstrated unsatisfactory professional conduct in his representation of the Applicant on 28 and 29 May 2014.

Background

Background to the litigation

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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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