ZAU & UONG
[2014] FamCAFC 36
FAMILY COURT OF AUSTRALIA
| ZAU & UONG | [2014] FamCAFC 36 |
| FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – where the applicant seeks to review the exercise of power by the Regional Appeals Registrar – where the applicant seeks that the court or the respondent provide the transcript of the hearing and prepare the appeal books – application dismissed. FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – COSTS – where the respondent seeks costs on an indemnity basis – where there are no exceptional circumstances – costs sought for the hearing on 7 November 2013 dismissed – costs ordered on a party/party basis for the hearings on 17 January 2014 and 27 and 28 February 2014. |
| Family Law Act 1975 (Cth) – s 96AA, s 117 Family Law Rules 2004 (Cth) – r 22.18 |
| Forbes & Bream [2008] FamCAFC 189 Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220 |
| APPLICANT: | Ms Zau |
| RESPONDENT: | Mr Uong |
| FILE NUMBER: | MLC | 3931 | of | 2012 |
| APPEAL NUMBER: | SOA | 29 | of | 2013 |
| DATE DELIVERED: | 28 February 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| EX TEMPORE JUDGMENT OF: | Strickland J |
| HEARING DATE: | 27 & 28 February 2014 |
| LOWER COURT JURISDICTION: | NA |
| LOWER COURT JUDGMENT DATE: | Order of Southern Appeals Registrar |
| LOWER COURT MNC: | NA |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Strum with Mr Peppin |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale Lawyers |
Orders
The amended application in an appeal filed on 1 October 2013 be dismissed.
The date (8 November 2013) set out in paragraph 4 of the Orders made by Registrar Marrone on 16 July 2013 be varied to 11 July 2014.
The dates (13 December 2013 and 30 January 2014) set out in paragraph 5 of the Orders made by Registrar Marrone on 16 July 2013 be varied to 22 August 2014 and 3 October 2014.
The dates in paragraphs 1 and 3 of the notations to the said Orders be varied to
22 August 2014 (in lieu of 13 December 2013) and to the 3rd sittings to take place in 2014 (in lieu of the 1st sittings).
The application for costs made by the respondent in relation to the hearing on
7 November 2013 be dismissed.
The applicant pay the costs of the respondent of and incidental to the hearings on 17 January 2014 and 27 and 28 February 2014 on a party/party basis, such costs to be assessed in default of agreement.
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
The application before the court is the amended application in an appeal filed by Ms Zau, the applicant, on 1 October 2013. That application amends an earlier application filed by her on 29 July 2013. There are a number of orders sought in that amended application, and as I have said on previous occasions, apart from the first order sought it is difficult to discern precisely what else
Ms Zau is seeking. However, with the first order there can be no doubt that what she is seeking is a review of the exercise of power by the regional appeal registrar on 16 July 2013 when the regional appeal registrar made orders preparing the appeal in this matter for hearing.
The particular orders that Ms Zau wishes to review are the orders that provide for Ms Zau to obtain the transcript of the hearing before the trial judge,
Cronin J, and for her to prepare, file and serve the necessary appeal books. Thus, it is that amended application, limited to those matters, that is now before me for determination.
I observe that before the appeal registrar Ms Zau was seeking to have before the Full Court documents beyond those identified by the appeal registrar in her orders. In the usual way though, the appeal registrar dealt with that in her orders by providing for Ms Zau to file and serve supplementary appeal books containing any further documents that she wished to put before the Full Court. Thus, although Ms Zau, in her documents that have been filed in support of this application, has raised that as an issue, in my view, it is not a matter that I need to consider. How the registrar has dealt with that issue is quite appropriate and it allows Ms Zau to attempt to put before the Full Court the further documents that she says are relevant. It will be the Full Court that will determine what, if any, of those documents it has regard to.
Background
Cronin J delivered reasons for judgment and made orders in proceedings between Ms Zau and the respondent to this application on 23 April 2013, following a hearing before his Honour on 2 April 2013. Ms Zau has appealed against three of those orders, and that was by way of a Notice of Appeal filed on 17 May 2013. It was as a result of that Notice of Appeal being filed that the matter was listed, again in the usual way, for directions before the regional appeal registrar on 16 July 2013.
For completeness, I also mention that on 10 July 2013, Ms Zau filed an application in an appeal supported by an affidavit, which primarily was directed to the documents that she was suggesting should be before the
Full Court. That was an application that was before the registrar on 16 July 2013, and, as I say, the registrar has dealt with Ms Zau's request, if you like, for further documents to be before the Full Court in the way that I have set out above.
The amended application filed on 1 October 2013 was supported by an affidavit filed on the same date. There was also an affidavit filed in support of the earlier application in an appeal, filed on 29 July 2013. Ms Zau has asked that that affidavit be before me for the purposes of this hearing, and I have no difficulty with that, just as her affidavit of 1 October 2013 is also before me. I indicate though that on my reading of those affidavits, substantial parts are irrelevant to the application that is before me. Despite this I have attempted to glean from those affidavits any relevant facts in support of the application that Ms Zau now makes.
The amended application came before the court initially on 10 October 2013, and because of the non-appearance of Ms Zau, the matter was adjourned to
7 November 2013, and other orders were made, including an order for costs. I do not need, for the purposes of today, to delve into the other matters that arose and led to further orders being made on that day.
On 7 November 2013, the matter was again called on, but there was no appearance by Ms Zau on that occasion either. I further adjourned the proceedings to 17 January 2014 and I reserved the question of the respondent's costs to that date as well.
On 17 January 2014, Ms Zau did appear. She was assisted by an interpreter and upon her request the application was further adjourned to 27 February 2014. The primary reason for that was that Ms Zau indicated that she had spoken to a firm of lawyers who were prepared to act for her and, indeed, those lawyers, DLegal, sent an email to the court on 16 January 2014. In that email a solicitor from that firm requested that the judge, namely me, be informed that Ms Zau had requested them to act for her. This solicitor understood that
Ms Zau was due to appear on 17 January 2014 and he indicated that his firm was not in a position to appear that day because of the short notice, and Ms Zau would need to appear in person.
Importantly, the letter went on and said that if Ms Zau's application proceeded, that law firm were prepared to act for her in her appeal on a pro-bono basis and, indeed, the letter indicated the name of a counsel who may be prepared to accept instructions to appear. The ultimate point of the email was, in effect, to request that the matter be put off to enable them to complete instructions and appear. Thus it was for that reason, namely that Ms Zau had apparently obtained legal advice and solicitors were prepared to act for her, that the application was further adjourned, over, I might say, the objections of the respondent’s solicitor.
The hearing was then called on on the adjourned date, namely 27 February 2014, and Ms Zau again appeared in person. When asked by me what the position was with legal representation, she indicated that the lawyers were still prepared to act for her, and they would act for her in the future, but there were some “investigations” that needed to be undertaken by them as to what moneys might be available to secure their costs. I was somewhat bemused by that information, given that the solicitors had written to the court indicating that they were prepared to act for Ms Zau on a pro-bono basis, but it is not for me to delve any further into that issue.
The fact of the matter is Ms Zau appeared again in person, with the assistance of an interpreter, but with the background that she has solicitors who, she says, have been providing her with legal advice about this matter and who will act for her in the future.
The hearing proceeded on 27 February 2014, but unfortunately it was not able to be completed in the time available, and was adjourned to today. I intended to deliver ex tempore reasons for judgment and make orders at 9:00am this morning. However, that became impossible as a result of matters that
Ms Zau raised at the last minute, and this application had to be further adjourned to this afternoon for delivery of judgment.
I have indicated already the two affidavits that Ms Zau was relying upon. There is, indeed, a third affidavit, and its filing arose in the following way. On 17 January 2014, I made an order that the parties file any further documents on which they intended to rely for the purposes of this matter by the close of business on Friday 21 February 2014. I also further adjourned the question of the respondent's costs, not only the costs of 7 November 2013, but also the costs of 17 January 2014.
In relation to the filing of further documents, Ms Zau filed an affidavit with a number of annexures sworn on 19 February 2014. It was not, as I understand it, initially received by the court and it was left for Ms Zau to raise it with me at the hearing as to whether I would receive it. I have expressed concern about this affidavit, given its length and, in particular, the number of annexures that there are, but that seems to be the way of Ms Zau. Whenever she has the opportunity to file affidavits, they are inevitably lengthy and with extensive annexures. Unfortunately, as I have indicated in relation to the two affidavits that I have referred to already, much of the material in those affidavits is irrelevant and that is also the case in relation to the affidavit sworn on
19 February 2014. However, there are parts of that affidavit which I have been prepared to initially receive and, specifically, that part of the affidavit commencing at [35] under the heading “The hearing listed on
27 February 2014 before Strickland J”.
Now, even though paragraphs [35] onwards purport to relate to the hearing of the matter that I am now determining, that is clearly not the case, upon reading those paragraphs. There are matters in there which are, again, irrelevant to the application that I have to determine and, again, I have had to take some time and trouble to attempt to glean from that part of the affidavit any relevant facts.
One annexure that is referred to in that series of paragraphs, at [39], is an annexure described as “SVU35”. Ms Zau has specifically requested that I read the material in that annexure. It comprises a report from a psychologist by the name of Ms O, dated 11 February 2014, and I can indicate to Ms Zau that I have read that report. It relates, as one would expect, to the health of
Ms Zau. However, although Ms Zau insisted that I read that report, I explained to her earlier in these proceedings that her health is not necessarily directly relevant to the applications that are before me. I have agreed to read the report though because Ms Zau seems to be raising this matter in relation to what is set out in rule 22.18(2) of the Family Law Rules 2004 (Cth) (“the Rules”), namely that:
If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books:
(a)a respondent;
(b)the Regional Appeal Registrar.
I highlight the words "exceptional hardship". As I understand it, what
Ms Zau is saying to me is that her health is a relevant factor in her case that it would impose exceptional hardship on her for her to have to prepare the appeal books. I am aware from that report of the state of health of Ms Zau and I will take that into account in that context.
The other matter that I mention that arose during the hearing earlier today, is that in that same paragraph, namely at [39] of the affidavit, Ms Zau deposes that she is receiving a Newstart benefit from Centrelink. I confirm that during the hearing this morning I indicated to Ms Zau that I was prepared to proceed on the basis that she was receiving a Newstart allowance, and I sighted a document to that effect which Ms Zau handed up, and which indicated that she is receiving a Newstart allowance from Centrelink. I will not dwell on that issue because I dealt with that this morning, but, in summary, Ms Zau was insistent that that document from Centrelink was included as an annexure to her affidavit sworn on 19 February 2014. That was simply not correct. In any event, I move on from that and, as I say, I proceed for the purposes of the application before me today on the basis that Ms Zau is receiving a Newstart allowance.
I have indicated that initially, at least, I was prepared to receive paragraph [35] and following of the affidavit of 19 February 2014. The earlier part of the affidavit, in my view, is completely irrelevant to the application before me today. That is apparent from the opening paragraphs themselves where
Ms Zau says, and I summarise, that the affidavit contains information for the Independent Children's Lawyer (“the ICL”) in relation to the matter listed before Registrar Sikiotis on 21 February 2014, and the affidavit gives fresh information for a family report to be prepared. That provides a clear indication in her own words, that much of that affidavit and, in my view, up to and including paragraph [34], are irrelevant to these proceedings.
Discussion
The two matters which Ms Zau, in effect, raises and seeks a review of are the orders of the appeal registrar whereby she is to obtain the transcript and prepare the appeal books.
This is a review of the power exercised by the appeal registrar and, as such, the hearing before me is to be conducted de novo. It is not a case of examining whether the appeal registrar has made an error in the orders that she has made. It is, as I say, a case of, in effect, starting again, and that is how I have approached it, namely, Ms Zau is now seeking orders that either the respondent or the court obtain the transcript and prepare the appeal books.
Provision of transcript
In discussion during the hearing I challenged Ms Zau as to her application insofar as she sought that the respondent provide the transcript. Ms Zau was not able to indicate any legitimate basis for the respondent to obtain the transcript in the circumstances of it being her appeal, the respondent opposing the appeal, the respondent wanting to maintain the orders of the trial judge and Ms Zau not being able to identify any conduct on the part of the respondent which could be said to have led to the orders made by the trial judge, and from which she appeals.
Ms Zau has complained about the conduct of the respondent in relation to the preparation of the matter for hearing before the trial judge and particularly in relation to issues for example, of disclosure. However, there is no necessary link between that complaint, even if it is justified, and I make no comment about that, and the orders ultimately made by the trial judge. Thus, I can see no basis whatsoever for an order to be made that the respondent obtain the transcript.
In that regard then that part of the application becomes whether the court is to obtain the transcript, or whether Ms Zau is to obtain the transcript.
Ms Zau has explained in her submission in that regard that the reason for wanting the court to obtain the transcript is that she is not financially able to meet the cost of that transcript. Now, immediately, the problem Ms Zau faces, and this was a specific submission made by counsel for the respondent, is that Ms Zau at no stage has provided to the court in relation to this application, details of her financial circumstances. There has been no financial statement filed, for example, and nothing set out in any of her affidavits that are relied on, that provide any detail as to her financial circumstances.
The only matter which, as I say, I am prepared to proceed on and which I accept has been put in the latest affidavit, is that Ms Zau is now receiving a Newstart allowance. However, as Mr Strum has pointed out, that does not say anything about whether there is any other income that Ms Zau is receiving, but, more importantly, it does not say anything about what assets Ms Zau has, or what ability she has to raise funds and the like. Thus, I accept the submission made on behalf of the respondent that that is a hurdle and, indeed, a high hurdle that Ms Zau has to overcome.
In any event, the situation in relation to the court providing transcript is this; there is no specific rule in the Rules that provides for, for example, an application to be made for the transcript to be obtained by the court. However, rule 22.18 can be seen to bear upon this issue and says as follows:
PREPARATION OF APPEAL BOOKS
22.18(1) The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
22.18(2) If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books:
(a) a respondent;
(b) the Regional Appeal Registrar.
Note If the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).
22.18(3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.
Importantly, the notation to sub-rule (2) provides that if the regional appeal registrar prepares the appeal books, the appellant is still responsible for obtaining the transcript. Thus to repeat, and it can be seen from rule 22.18, there is nothing specific in there as to, for example, the court providing transcript. And advisedly so, because of the situation of the court. Indeed I refer to what the Full Court said in Forbes & Bream [2008] FamCAFC 189, wherein the Full Court, as I am doing now, indicated that there is no legislative basis, not only within the Rules, but within the Family Law Act 1975 (Cth) (“the Act”), providing that a transcript be obtained by the court. At [28], [35] and [36] the Full Court said this:
28.From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.
…
35.If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.
36.We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.
The difficulty for the court is that the court does not have a budget to enable it to pay the cost of transcript for an appellant. That is why the Rules are drawn on the basis of the appellant, or a cross-appellant, always being responsible for obtaining the transcript. However, the court, of course, has to be mindful of issues of access to justice, and if the interests of justice require it, it seems to be settled that the court may, in the exercise of its discretion agree to provide the transcript, or relevant parts of it, to enable the appeal to proceed.
In Forbes & Bream the Full Court indicated that it did not need to define the circumstances in which the discretion of the court to provide a transcript may be exercised. However, in the Full Court decision of Sampson & Hartnett (Provision of Transcript) [2010] FamCAFC 220, the Full Court said it would be of assistance to the applicant in that case, who also was self-represented, to have some framework as to the matters of which the court would need to be satisfied, and the factors which that Full Court set out at [16] were:
(a) Whether the case is a financial or parenting case.
(b)Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.
(c)The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.
(d)The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).
(e) The prima facie merits of the appeal.
(f)Whether the question of providing a transcript can be left to the Full Court hearing the appeal.
(g) Any other relevant facts or circumstances.
The Full Court there acknowledged that the weight to be attributed to any particular factor will vary on a case by case basis and, of course, not all of those factors will always be present in any given case. But applying those factors as they may relate to this case, the first thing to note is this is a financial, not a parenting case.
Next, Ms Zau seeks the entire transcript. There has been no attempt by her to identify parts of the transcript that may be relevant and thereby limiting the extent of the transcript that will be required. In fact Ms Zau has not satisfied me that any of the transcript is relevant and necessary and when one looks at the grounds of appeal, as I will come to in a moment, it is not readily apparent from those grounds of appeal that the transcript will be required. Certainly, there is no basis for the entirety of the transcript to be provided.
There is no evidence before me as to the likely cost of the transcript. From my experience and knowledge of these matters, given that the hearing before his Honour proceeded over the course of one day, it is likely to be several hundred dollars at least. But, of course, as I say, I have no evidence from Ms Zau at all of the cost of the transcript.
As to whether the applicant can afford all or part of the cost of the transcript, as I have said, Ms Zau has not placed any financial information before the court, save and except in relation to she receiving a Newstart allowance. Thus it may be that Ms Zau can afford to obtain the transcript, or at least any relevant parts thereof.
As to the merits of the appeal, the appeal grounds are as follows:
1.I required and explained because my circumstance, my lawyer in the last minutes ceased my case, and I need go for overseas for a business trip. Most important is our son [W] gave me big pressure, I have to put him in first place to comfort him and let him settle down. I discuss with the friends around me and they support me, I took their advice and ask my friend help me wrote the drop case notices for the Honourable Justice Cronin I ask to drop the case or adjournment on the hearing day was refused.
2.I did not receive any duty lawyer’s legal advice or help on the day of hearing even I requested many time. While I waiting to the duty lawyer’s assistance I have been pushed to go back to the court or have to called security to take me go to the court, I back to court to protect my rights and respect.
3.The order made on 23 April 2013, paragraph (1), (2), (3) and the 2 reasons for judgment made on 23 April 2013 I cannot acceptable [sic], I would ask this Honourable court reconsider the issues as:
A.The affidavits I filed and documents I gave to the Judge on the hearing day and Judge used it but I feel did not weight my evidence carefully. The reason for judgment, the order on paragraph 3 that the applicant and the respondent have not been in a de facto relationship is not an accurate Judgement [sic].
B.The witness [Ms L] (l l) her affidavit the Judge did read it but return back to me, I believed other party received it. She know us relationship since 1992. This happened second time, the first hearing in front of the same Judge for some reasons some affidavits I filed been returned to me on the court, I accident [sic] received it, but later I returned back to the court.
C.I also feel Judge did not carefully cross exam the evidence I supplied. Even the other party made big mistakes even did not weight in the Judgment.
D.I repeat many times on my affidavit and pointed to other party’s lawyer as well which this is very painful family tragedy, made by the respondent’s lawyers mislead this Honourable court, again and again. This happened on 2003-2005 my son’s parenting case, the fact I left our son unsuprised [sic] was not true. This time I repeat again on my affidavits and the letter to other party’s lawyer, the judge did not take this as most important evidence cost our family tragedy, special for our son [W] and also his parents become the victim by this mistake made. It could be corrected by the honourable Judge and the honourable court.
E.Our son taken by the respondent when we on holiday, and the relationship between the respondent and I goes wrong since he had his lawyer assistance with his devoice [sic] process in 1997-1999 in your court with his first wife [Ms D]. I required many times for using their affidavit as important evidence but no been permitted.
4.I request an independent lawyer for my son the suggestion did not been taken, this case put enormous pressure on our son [W], I asked many time ask other party’s lawyer to solve our difference by communications, the Judge did not support me with this suggestion. I did not feel the Judge standing in the middle see the fact and read looked evidence carefully by me supplied. And only take easiest way to listen other party’s skilful lawyer.
5.I believed the true [sic] is most important and I believe and confidence this Honourable court will take the true facts and used 200 years law history and best well known Australia family law. This is I quiet the case in China and come to Australia try to have solve our family issues.
6.Hurry filed Notice of Appeal got the Women’s Legal Service been told before 21 May 2013, will seek lawyer’s advice, then file application to adduce further documents.
Given that Ms Zau appears without legal representation, but in the knowledge that she has, as she has told me, sought and obtained legal advice about these matters, I have closely read those grounds of appeal and I have closely read the reasons for judgment delivered by Cronin J. I have attempted to make some sense of the so-called grounds of appeal, but it is simply not apparent to me what the complaints are in an appellate sense. By that I mean it is not simply a case of an appellant saying the judge got it wrong, or I am not happy with the decision. The onus on the appellant is to set out proper grounds of appeal which identify appealable errors, or alleged errors, made by the trial judge. That is not a description that could be applied in any way, shape or form to these six so-called grounds of appeal. There is no recognisable or identifiable or proper ground of appeal in the Notice of Appeal. There is just a series of assertions and complaints.
I have also specifically read and, as I say, closely read the reasons for judgment of Cronin J and upon my reading of his judgment, it does not emerge from that reading that there is any appealable error made by his Honour.
The next factor that I turn to arising from the Full Court decision in Sampson, is whether the question of providing a transcript can be left to the Full Court hearing the appeal. Now, of course, the views that I have expressed as to the merits of the appeal are views expressed in the knowledge that all that I have before me is the Notice of Appeal. I obviously do not have the transcript of the hearing before his Honour, and although I have expressed my preliminary view about the merits for the purposes of the application before me today, that is not to say that, ultimately, there may be a ground of appeal which can properly proceed and be legitimately dealt with by a Full Court. At that point it may be open to Ms Zau to address with the Full Court the need to obtain a portion of the transcript for that purpose.
Thus it seems to me that the question of obtaining the transcript and the need for it, can be raised with the Full Court hearing the appeal, if that point is reached.
That is not to say that I propose adjourning this application. I will deal with it and make orders appropriately, but subject to what happens from here on in, in relation to the appeal, it may very well be a matter for the Full Court to consider at the hearing of the appeal. On the other hand, it may not, but that is for the future.
For those reasons, I propose to dismiss the application insofar as it seeks an order that the court provide or obtain the transcript of the hearing.
Preparation of the appeal books
I now turn to the second part of the application made by Ms Zau, which is for either the respondent or the court to prepare the appeal books.
This is governed, as I have already outlined, by rule 22.18 of the Rules and, as I have said, if Ms Zau can satisfy the court that it would impose exceptional hardship on her, this court has a discretion to order that the respondent or the court, by that I mean the regional appeal registrar, prepare the appeal books. The exceptional hardship that Ms Zau has submitted applies stems from her health, her financial circumstances, and her ability in a practical sense to prepare the appeal books.
Dealing with those issues in reverse order.
I am not persuaded that Ms Zau does not have the ability to prepare the appeal books. I spent some time during this hearing taking Ms Zau through the process for the preparation of an appeal book and, indeed, I arranged for my associate to show Ms Zau an example of an appeal book. At one stage
Ms Zau indicated that she felt she could manage to prepare the appeal books, but in subsequent submissions it became apparent that that was in fact not her position, and she was still pursuing the application that is before the court.
Ms Zau has prepared extensive affidavits and a number of applications, and she has filed a Notice of Appeal, and all that points to her being able to prepare appeal books.
As to her financial circumstances, I need do no more than repeat what I have said about that in relation to the issue of transcript. Ms Zau has not presented any evidence to this court as to her financial circumstances, save and except that she is receiving a Newstart allowance. Thus, that is not a reason why this court would require either the respondent or the regional appeal registrar to prepare the appeal books. For all I know, Ms Zau has the financial wherewithal to pay whatever costs would be associated with the preparation of the appeal books.
The third issue is Ms Zau’s health. There is no doubt that Ms Zau suffers poor health and, specifically, mental health. She was admitted to hospital during the time that I have been involved in this matter and that was as an involuntary patient. There are reports that I have sighted and, in particular, the report that Ms Zau has specifically asked me to look at which confirm her unfortunate health difficulties. But there has been no attempt by Ms Zau to demonstrate, and it is not apparent to me, why her health would prevent her from preparing appeal books.
Thus, for those reasons, I also propose to dismiss the application that the respondent or the regional appeal registrar prepare the appeal books.
I add that I have earlier indicated that there is no basis that I can see to order the respondent to obtain the transcript, and likewise there is no basis that I can see for the respondent to be ordered to prepare the appeal books.
Costs
I turn now to the applications for costs that are before me.
As I have earlier identified, the respondent makes an application for the costs of and incidental to the hearings on 7 November 2013, 17 January 2014, and
27 and 28 February 2014.
Any application for costs is governed by s 117 of the Family Law Act, and that section 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.
I will deal with the applications for costs in two parts. First, the application for costs in relation to the hearings on 7 November 2013 and 17 January 2014.
The hearing on 7 November 2013 was necessitated by Ms Zau not appearing at the hearing on 10 October 2013, and the matter having to be adjourned to
7 November 2013. It was thought that that date would be a date far enough into the future that Ms Zau would be able to attend, given the fact that there was some question as to whether she was in hospital or not.
On 10 October 2013 one order I made was that Ms Zau file and serve an affidavit by close of business on 4 November 2013 as to her health position, including details of her hospitalisation, and her medical condition and her treatment. She filed an affidavit but, as I recorded in my reasons for judgment delivered on 7 November 2013, it was inadequate, and did not specifically address the issues that I sought be included in an affidavit. In any event,
Ms Zau did not appear on 7 November 2013, and the matter was adjourned, as I have earlier recorded, to 17 January 2014. An application for costs was made, and I reserved that question.
The relevant factors under s 117(2A), as I understand it in this case, are the financial circumstances of the parties, the conduct of the parties and, in particular, the conduct of Ms Zau. As to the latter, as I understand it, the basis of the application for costs made in relation to the hearing on 7 November 2013 was that Ms Zau did not appear. She had not provided what she was supposed to by way of affidavit and the respondent had been put to further cost and expense in instructing his legal representatives to appear and, thus, those costs were thrown away.
Subsequent events though have explained to me and clarified for me why
Ms Zau was not present on 7 November 2013, and it was simply that she was in hospital as an involuntary patient. Therefore, I am not prepared to find that Ms Zau, for example, was able to attend and deliberately did not attend on that occasion. The respondent and his legal advisers were well aware that there was a prospect of Ms Zau not attending on that day. Of course, they had to appear and, of course, the respondent instructed them to appear and, of course, costs were thrown away. But, in my view, those circumstances do not justify an order for costs being made against Ms Zau in relation to the hearing on
7 November 2013.
I turn to the hearing on 17 January 2014.
That was a relatively short hearing, given that Ms Zau, in effect, applied for an adjournment. She attended in person with an interpreter. However, the basis of the adjournment was that she had solicitors. Those solicitors would be able to appear for her, they would appear pro bono, and they would appear subsequently in the matter and, as I say, it was adjourned specifically for that purpose.
The basis of the application for costs made by the respondent on that day was that, again, the respondent's costs were thrown away. The hearing was listed for 17 January 2014. The respondent instructed his legal representatives to appear, and they did, expecting to have the matter determined on that day.
Ms Zau though sought an adjournment because she had now obtained the services of a lawyer. I granted the adjournment over the objections of the respondent's solicitor, and yet I find now that those lawyers, although apparently now acting for Ms Zau, have not appeared, have not instructed counsel, and have left Ms Zau to appear herself with all the difficulties associated with that. However, Ms Zau sought the adjournment, and in my view, there are circumstances that justify an order for costs thrown away in relation to the hearing on 17 January 2014.
Next there is the application for costs in relation to the hearing which commenced on 27 February 2014 and has continued today. That application for costs is based on the fact that, as is now apparent, the application by
Ms Zau has been wholly unsuccessful. As I have indicated, I propose to dismiss her application. That provides a circumstance which would ground an order for costs being made.
I am also to take into account the financial circumstances of the parties. Again, and I repeat, Ms Zau has not put her financial circumstances before this court, despite having the opportunity to do so. In any event, impecuniosity, if that is Ms Zau's position and, of course, I cannot make a finding about it because I do not have any information to make such a finding, is not a bar to an order for costs where there are circumstances that justify such an order being made, as is the case here. To repeat, Ms Zau has been wholly unsuccessful in her application. The respondent has had to instruct his legal representatives to appear, and he has incurred costs unnecessarily in relation to the application.
In summary then, I propose to dismiss the application for costs in relation to the hearing on 7 November 2013, but I propose to make an order for costs in relation to the hearings on 17 January 2014, and 27 and 28 February 2014.
The applications for costs that are made by the respondent are made on an indemnity basis. By that I mean, as opposed to a party/party basis, and what is sought is that the costs actually incurred by the respondent be the costs ordered.
In my view, there is no justification for indemnity costs orders to be made.
As the authorities indicate, there needs to be exceptional circumstances to depart from the usual basis namely, party/party. Although Ms Zau has been unsuccessful in her application, and although it was at Ms Zau's behest that the hearing on 17 January 2014 had to be adjourned, there is nothing exceptional about those circumstances which would justify an order for costs on an indemnity basis.
Finally, I indicated yesterday that I saw the next step in this matter as being a directions hearing before the regional appeal registrar to make orders for the preparation of the hearing of the appeal. However, I have determined that because I propose to dismiss Ms Zau's application, in my view, all I need do now is amend the timeframes that are in the appeal registrar’s order of 16 July 2013.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 28 February 2014.
Associate:
Date: 13 March 2014
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