ZAU & UONG
[2013] FamCAFC 166
FAMILY COURT OF AUSTRALIA
| ZAU & UONG | [2013] FamCAFC 166 |
| 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 court was notified late by facsimile that the applicant had been admitted to hospital and would be unable to attend the hearing – where the respondent’s solicitor was also provided with late advice but which merely suggested that the applicant may be unable to attend the hearing – where in the circumstances the respondent seeks that the application be dismissed – where the information provided is inadequate but it does indicate that the applicant is in hospital under medical treatment – application adjourned. FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – COSTS – where the respondent seeks costs on an indemnity basis – where there are here the exceptional circumstances required by the authorities for there to be an order for indemnity costs – applicant to pay the respondent’s costs thrown away fixed in the sum of $4,389. |
| Family Law Act 1975 (Cth) – s 117 Family Law Rules 2004 (Cth) |
| Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248 D & D (Costs) (No 2) (2010) FLC 93-435 Kohan and Kohan (1993) FLC 92-340 Limousin v Limousin (Costs) (2008) 38 Fam LR 478 Yunghanns v Yunghanns (2000) FLC 93-029 |
| APPLICANT: | Ms Zau |
| RESPONDENT: | Mr Uong |
| FILE NUMBER: | MLC | 3931 | of | 2012 |
| APPEAL NUMBER: | SOA | 29 | of | 2013 |
| DATE DELIVERED: | 10 October 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| EX TEMPORE JUDGMENT OF: | Strickland J |
| HEARING DATE: | 10 October 2013 |
| LOWER COURT JURISDICTION: | NA |
| LOWER COURT JUDGMENT DATE: | Order of Southern Appeals Registrar |
| LOWER COURT MNC: | NA |
REPRESENTATION
| THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Strum |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale Lawyers |
Orders
The amended application in an appeal filed on 1 October 2013 be adjourned for hearing before the Honourable Justice Strickland in Melbourne at 9:30am on Thursday 7 November 2013.
On or before the close of business on 4 November 2013 the applicant file and serve an affidavit annexing a medical report providing complete details as to her hospitalisation on 8 October 2013 and following, her medical condition and her medical treatment therefor.
The applicant pay the respondent’s costs thrown away today fixed in the sum of FOUR THOUSAND THREE HUNDRED AND EIGHTY NINE DOLLARS [$4,389].
This matter is certified fit for counsel.
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
This is an amended application in an appeal filed by the applicant on 1 October 2013. That application amends an earlier application in an appeal filed on
29 July 2013.
Unfortunately it is difficult to understand some of the orders that the applicant is seeking on this application, but primarily it is an application seeking to review the exercise of power by the Regional Appeals Registrar on 16 July 2013, when the Registrar made orders preparing the appeal for hearing, and I will return to the appeal in a moment, and in particular made orders for the filing of appeal books, the content of those books and the obtaining of transcript.
As to the appeal, on 17 May 2013 the applicant filed a Notice of Appeal against orders made by Justice Cronin on 23 April 2013, and thereafter the appeal came before the Regional Appeals Registrar in the usual way on 16 July 2013 for the purposes of a directions hearing.
I note that on 10 July 2013 the applicant filed an application in an appeal which was also listed before the Registrar on 16 July 2013. Again it is difficult to discern precisely what orders were being sought in that application, but it seems that what the applicant was seeking was specific orders in relation to the preparation and hearing of the appeal. In any event, the Registrar heard that application of 10 July 2013 as part of the directions hearing on 16 July 2013, and made the orders that I have referred to.
On 29 July 2013 the applicant filed the application in an appeal which I have referred to, and then on 1 October 2013 filed the amended application in an appeal.
That application was listed for hearing before this court today. Initially it was listed at 10:00am, but as I understand it, as a result of some difficulties that arose with counsel for the respondent, that time was changed to 2:15pm. As I also understand it, there was no difficulty with that alteration from any party’s perspective. In any event, the matter has been called on at 2:15pm and
Mr Strum has appeared as counsel for the respondent, but there has been no appearance by or on behalf of the applicant.
It seems that the applicant is currently an in-patient at a hospital, and I know that from a facsimile that the court received yesterday, namely 9 October 2013, at approximately 5:30pm, and which was a facsimile from an Intern at that Hospital. I read the content of that facsimile onto the transcript earlier today and I make that facsimile Exhibit 1 in these proceedings.
That facsimile tells me that the applicant was admitted to hospital as an in-patient on 8 October 2013, that she is currently receiving medical treatment, that she is not able to attend the hearing today, and she is not able to attend future court hearings from 8 October 2013 to 6 November 2013. Unfortunately there is no other detail provided by the Intern. In particular there is no detail as to what the presenting problem was, in other words, why the applicant is in hospital, nor is there any detail of the medical treatment she is receiving. Significantly, there is also no information as to why she is unable to attend the hearing today, and just as significantly there is no information as to why she would not be able to attend future court hearings before 8 October 2013 and
6 November 2013.
Separate to that, and Mr Strum has tendered these documents to me, there was a facsimile that Mr Strum’s instructing solicitor received this morning at approximately 8:00am from the applicant. It does not say in so many words that she is in hospital and cannot attend today, but it does suggest that her Doctor needs to make that decision. The lack of information and the lateness of the facsimile raises concerns as to what in fact the position is. Importantly it did not tell the respondent’s solicitors that the applicant definitely would not be attending the hearing. That was left completely up in the air, and the majority of the facsimile repeated complaints that the applicant has continued to raise in her affidavit material about the proceedings. The lack of relevant information is staggering. I make that facsimile Exhibit 2 in these proceedings.
Mr Strum has also tendered to me an email sent at 9:11am today to the applicant by his instructing solicitor referring to her facsimile and confirming that the application is listed today at 2:15pm. I make that email Exhibit 3 in these proceedings.
Given the absence of the applicant, and the lack of detail in the facsimiles that I have just referred to, Mr Strum seeks that the amended application be dismissed.
In support of that application, Mr Strum has referred me to the orders that are actually sought in the amended application and submits that on its face that application has either no, or minimal chances of success.
I am sorely tempted to accede to Mr Strum’s application. I am far from satisfied with the information that has been received from either the hospital or the applicant herself as to her failure to attend the hearing today. Equally, I have formed a preliminary view that this court would take some persuading to make the orders sought by the applicant in her amended application in an appeal.
However, that said, I am aware that she is in hospital, I am aware that she is under medical treatment, and the hospital says that she cannot attend today. Although it might have made no difference to the result for her to actually attend, in those circumstances I am not prepared to dismiss the application, and I propose to adjourn it to either the 6 or 7 November 2013.
In that event Mr Strum has sought an order for costs and the costs that he seeks are $490 plus GST for his instructing solicitor’s attendance today and $3,850 for his counsel fees for today. As is apparent, and as Mr Strum has confirmed, the application is for costs on an indemnity basis. The costs sought exceed the scale of costs in Schedule 3 of the Family Law Rules 2004 (Cth).
Any application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). To make an order for costs I have to be satisfied that there are circumstances that justify an order being made, and I am so satisfied.
The information that the applicant has provided both directly to the respondent’s instructing solicitor via the facsimile sent by her at 8:00am this morning, and also via the hospital to the court, is inadequate, and as Mr Strum has rightly pointed out, if we can accept at face value what is in those documents namely, that she was admitted to hospital on 8 October 2013, there was still ample opportunity for the applicant to advise the respondent via his solicitors well before this morning, that the applicant would not be attending court today. I repeat that the facsimile to the solicitors still did not tell them that she would not be attending and it was left very much up in the air. In any event, it was just too late notice and Mr Strum and his instructing solicitor were perfectly justified in still attending court ready to conduct the hearing. Thus, the respondent has incurred significant legal costs for this hearing today which costs have effectively been thrown away.
Obviously the respective financial circumstances of the parties are relevant to an application for costs. The only matter of which I am aware though in relation to the applicant’s financial circumstances is that she receives a Centrelink benefit. However, even if it is the case that her financial circumstances are poor, there is ample Full Court authority that impecuniosity is no bar to an order for costs being made where it is otherwise warranted, (e.g. see D & D (Costs) (No 2) (2010) FLC 93-435) and in my view that is the case here.
The next question is on what basis should those costs be awarded, and in my view there are here the exceptional circumstances that the authorities require for there to be an order for indemnity costs (see Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248, Yunghanns v Yunghanns (2000) FLC 93-029, Kohan and Kohan (1993) FLC 92-340, Limousin v Limousin (Costs) (2008) 38 Fam LR 478, D & D (Costs) (No 2) (2010) FLC 93-435). Those circumstances are the late notice to the respondent’s solicitors of the possibility that the applicant would not be able to attend the hearing, the lack of adequate information as to her circumstances and the reasons for her inability to attend. In addition, as a result of those circumstances it is plain that the respondent should not be “out of pocket” in so far as his legal costs are concerned.
I certify that the preceding nineteen (19) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on
10 October 2013.
Associate:
Date: 15 October 2013
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