ZAU & UONG
[2015] FamCAFC 73
•9 April 2015
FAMILY COURT OF AUSTRALIA
| ZAU & UONG | [2015] FamCAFC 73 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to review the exercise of power by the Appeal Registrar – Where the applicant roamed far and wide in her submissions and did not focus on the application brought by her – Where the applicant did not appreciate the purpose and nature of a supplementary appeal book – Where orders were made not sought by the applicant in the interests of moving the matter along and ensuring it remained listed for hearing before the Full Court – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks costs on a party/party basis – Where the applicant’s actions in bringing the application have resulted in the respondent incurring costs – Where the application had no chance of success – Where impecuniosity is no bar to an order for costs where there are circumstances justifying such an order – Where this is such a case – Costs ordered. |
| Family Law Act 1975 (Cth) – s 117 Family Law Rules 2004 (Cth) |
| APPLICANT: | Ms Zau |
| RESPONDENT: | Mr Uong |
| FILE NUMBER: | MLC | 3931 | of | 2012 |
| APPEAL NUMBER: | SOA | 29 | of | 2013 |
| DATE DELIVERED: | 9 April 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| EX TEMPORE JUDGMENT OF: | Strickland J |
| HEARING DATE: | 9 April 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | Order of Southern Appeal Registrar |
| LOWER COURT MNC: | NA |
REPRESENTATION
| THE APPLICANT: | In person with interpreter |
| COUNSEL FOR THE RESPONDENT: | Mr Peppin |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale Lawyers |
Orders
Paragraph 2 of the order made by Registrar Marrone on 11 February 2015 be amended such that it only requires the filing and serving of the appeal book without any transcript on or before 17 April 2015.
The applicant be at liberty to arrange with Auscript to attend at their offices to listen to the audio of the hearing before Justice Cronin on 2 April 2013 for the purposes of the applicant identifying those parts of the transcript of that hearing on which she intends to rely for the purposes of this appeal and the applicant obtain those parts of the transcript and provide copies to the Court and to the respondent by the close of business on Friday 8 May 2015.
Upon receipt of the applicant’s summary of argument and any list of authorities, the respondent file and serve a summary of argument and any list of authorities within 14 days thereafter.
Paragraph 3 of the order made by Registrar Marrone on 16 March 2013 and paragraph 4(b) of that order as subsequently amended by order made on 28 February 2014 be discharged.
The application in an appeal filed on 11 March 2015 be otherwise dismissed.
The applicant pay the costs of the respondent of and incidental to the hearing today such costs in default of agreement to be assessed on a party/party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Uong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
|
Appeal Number: SOA 29 of 2013
File Number: MLC 3931 of 2012
| Ms Zau |
Applicant
And
| Mr Uong |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the court today is an application in an appeal filed by Ms Zau (“the applicant”) on 11 March 2015. That application is supported by an affidavit also filed on 11 March 2015. There were a number of orders sought in that application, but in my view the only order that realistically can be addressed is order 1, which seeks a review of a decision made by the Appeal Registrar in refusing to receive an application in an appeal and a supporting affidavit, sought to be filed by the applicant.
In paragraph 1 of the application in an appeal the dates of the application and the affidavit the subject of the refusal are expressed to be 2 March 2015. It is quite apparent that those dates are incorrect, and the application and the affidavit which the Appeal Registrar refused to file, are in fact the applicant’s application in an appeal dated 23 February 2015, and an affidavit sworn on the same date.
I explained to the applicant that given her application was to review an exercise of power by a Registrar, it was not a matter of addressing whether the Appeal Registrar made an error, or not, in refusing to receive the documents for filing; rather, it is a matter of the issue being addressed de novo. The applicant is well aware that that is the process because I have previously had to address an application for review filed by her. I did so in delivering reasons for judgment on 28 February 2014 and making orders on that day dismissing the application for review.
Given that it is a matter of putting aside what the Appeal Registrar has done and in effect starting afresh, I attempted to take the applicant through the orders that she sought in the application which was refused to be filed. That was a torturous exercise for a number of reasons. The applicant again appeared without legal representation, but she had the benefit of an interpreter. As I have expressed though both on the last occasion that I had the applicant before me, and today, in my view she very well understands English and does not need the assistance of an interpreter.
I am also aware from the previous proceedings in this matter that I have heard, that the applicant suffers from health difficulties, and I have sighted a brief medical report which diagnoses the applicant as being bi-polar. I record that I have taken that circumstance into account in making the remarks that I have in these reasons.
Unfortunately, I was not able to complete the task of taking the applicant through the orders that she sought in the application that the Appeal Registrar refused to file. That was primarily because the applicant refused to listen to what I was saying to her, refused to stop interrupting me, and caused a disturbance in the courtroom. Indeed, I was obliged to adjourn the court on two separate occasions as a result of her behaviour.
One of the difficulties that arose was the applicant was clearly fixated on the need, as she saw it, to include more documents in the appeal book than the Appeal Registrar has permitted. Hopefully to lay this issue to rest, the position, and which is the position that I attempted to explain on a number of occasions today to the applicant, is that where an Appeal Registrar determines what documents are to be in an appeal book, if a party seeks further documents to be before the Full Court, the practice of the Appeal Registrars is to allow that party to file and serve a supplementary appeal book containing those further documents. What then happens is that once the matter is before the Full Court, the Full Court determines whether that supplementary appeal book will be received or not. Despite this explanation, the applicant still did not appear to appreciate at all the nature and purpose of a supplementary appeal book. In any event, and fortunately, part-way through the hearing, after the applicant put to me in a very heated way that she wished to pursue her application, which in order 1 sought a number of documents to be included in the appeal book, as opposed to in the supplementary appeal book, she announced that she did not propose to seek to put further documents by way of a supplementary appeal book before the Full Court, and that she was satisfied to rest on the documents that are set out in the order of the Appeal Registrar made on 16 July 2013.
In that regard, generously, the Appeal Registrar has prepared an appeal book containing those documents and has provided that to the applicant. The applicant has now, as I understand it, made the requisite number of copies of that appeal book so that she can comply with the order made on 11 February 2015 for filing the relevant number of copies of the appeal book on or before 17 April 2015.
The further problem that the applicant has identified though, is that she still has not obtained the transcript, and paragraph 2 of the orders made on 11 February 2015 requires that the appeal book contain any transcript on which she intends to rely. In that regard what the applicant has said is that she is unable to afford to obtain all of the transcript, and she wants to listen to the transcript and identify those parts of the transcript on which she would want to rely, and then purchase that part of the transcript and provide that to the court and also to the respondent.
I note, and Mr Peppin has reminded me of this, that that very issue was raised with the applicant on 27 and 28 February 2014 when I determined that the applicant would be the party who has to obtain the transcript. At that time what the applicant was wanting was the entirety of the transcript. In any event, fortunately there is sufficient time to allow the applicant to now do what she proposes. Thus, I propose to make an order allowing that to occur.
The other matter which I have identified that needs to be addressed today is that in the orders of 11 February 2015 there was only provision for the applicant to file and serve a summary of argument. Mr Peppin tells me that at the hearing before the Appeal Registrar the issue was raised as to the filing of a summary of argument by the respondent. Mr Peppin further tells me that it was discussed that that would not need to happen until and unless the appellant filed her summary of argument, and that is an understandable position given the history of this matter. However, it seems to me that there still needs to be a formal order providing for the respondent to file his summary of argument, and I propose to make an order today providing in effect that the summary of argument by the respondent be filed and served within 14 days of receipt of the summary of argument of the appellant.
To return to the issue of transcript. Clearly the applicant needs some time to listen to the transcript, identify that part which she says she needs, and then to purchase it. I propose to allow her four weeks to do that, and I will need to make an order providing for that, as well as of course amending paragraph 2 of the orders made on 11 February 2015 to allow the applicant to file the appeal book without transcript. There will then be a further order for the filing and serving of the transcript which the applicant ultimately does seek to rely upon, and which she obtains.
Next, to return briefly to the issue of a supplementary appeal book. I understand that the Appeal Registrar has explained on many occasions to the applicant that regardless of whether or not there is a supplementary appeal book, the applicant is separately able to make an application for leave to lead further evidence before the Full Court. It appears that the applicant will want to pursue such an application, but nothing can be done about that at this time. The Family Law Rules 2004 (Cth) (“the Rules”) provide a time limit for filing that application, and the applicant who is now familiar with the Rules will need to be aware of that.
What I do propose to do though is to make an order dismissing paragraph 3 of the order made on 16 July 2013 which provided for a supplementary appeal book to be filed. I do not want there to be any confusion about it, and I do not want there to be a situation of the applicant changing her mind at the last minute and seeking to file a supplementary appeal book. Discharging that order will mean that there is no basis upon which a supplementary appeal book can be filed.
I now have an application before me for costs by the respondent in relation to the hearing today. The order sought is that there be such costs paid as may be agreed, and in default of agreement as may be assessed on a party/party basis.
That application is opposed.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”), is the section that addresses the question of costs and it relevantly provides as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)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.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
As can be seen, for there to be an order for costs there needs to be circumstances justifying such an order. In my view there is no doubt that such circumstances exist here. This case was called on at 2:15pm and it is now 4:45pm. A substantial amount of today has been absolutely wasted as a result of the inability of the applicant to pursue her application before the court today. She has roamed far and wide in addressing other issues, some relevant, some irrelevant, but it has been an exercise in frustration in attempting to have the applicant focus on the application which she has brought.
As is apparent, although I have proposed making a number of orders today, most of them are orders not sought by the applicant. They are orders which I have constructed in an attempt to cut through the difficulties apparent in this matter as a result of the applicant not appreciating or understanding what the issues are, what she has to do, what applications need to be made to the court, and what has to be complied with.
I am fully aware that the applicant is without legal representation. I recall at one stage she did seek an adjournment to obtain legal representation but that still has not happened, and by that I mean she still has not obtained legal representation and she has continued to appear without such representation. I also understand that the applicant is bi-polar and that is an ongoing problem for her. But the fact of the matter is that her application has brought the respondent to this court, required the respondent to instruct legal representatives, and to incur significant legal costs in meeting an application which, in my view, had no chance of success whatsoever.
The applicant must realise that she simply cannot bring an application which has no chance of success, and then expect to oppose successfully an application for costs by the other side, when it is her actions that have resulted in those costs being incurred by the respondent.
The only relevant factor that the applicant has put in opposition to an order for costs being made is her financial circumstances. She says that her financial circumstances are poor, and I am prepared to proceed on that basis, but as I have said in the past, and indeed as I have said in this matter when making previous orders for costs, impecuniosity is no bar to an order for costs being made, where there are circumstances which otherwise justify such an order being made. It is readily apparent that this is such a case.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 9 April 2015.
Associate:
Date: 5 May 2015
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