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

2012

APPEAL NUMBER:

SOA

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:

LOWER COURT JUDGMENT DATE:

Order of Southern Appeals Registrar

LOWER COURT MNC:

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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

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…

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.

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Details

Case: [2013] FamCAFC 166
Decision Date

CaseChat Overview and Summary

This appeal concerns an amended application in an appeal filed by Ms Zau against Mr Uong. The appeal itself is against orders made by Justice Cronin on 23 April 2013, which are now being reviewed by the Family Court of Australia. The primary issue in this case was whether the amended application in an appeal filed by Ms Zau on 1 October 2013 should be dismissed due to her absence from the hearing and the late notice of her hospitalisation. The court was also required to determine whether Mr Uong should be awarded costs on an indemnity basis.

The Family Court of Australia, presided over by Justice Strickland, considered the circumstances surrounding Ms Zau's absence and the late notice provided to the court and Mr Uong's solicitors. The court received a fax from an intern at the hospital stating that Ms Zau was admitted as an inpatient on 8 October 2013, receiving medical treatment, and would be unable to attend the hearing or any future court hearings until 6 November 2013. However, this fax lacked specific details about Ms Zau's medical condition and treatment. Additionally, a facsimile from Ms Zau to Mr Uong's solicitors suggested that her doctor would decide her attendance but did not confirm her absence. Despite the lack of detail, the court acknowledged Ms Zau's hospitalisation and decided not to dismiss the application outright. Instead, the application was adjourned for a later date.

Regarding the costs, Mr Uong sought an order for costs on an indemnity basis, arguing that Ms Zau's inadequate notice and lack of detailed information caused him to incur significant legal costs. The court agreed that the circumstances justified an order for indemnity costs, given the late and insufficient notice provided. Consequently, the court ordered Ms Zau to pay Mr Uong's costs thrown away, totaling $4,389.

In summary, the court decided not to dismiss Ms Zau's amended application in an appeal due to her hospitalisation but adjourned the hearing. The court also ordered Ms Zau to pay Mr Uong's costs thrown away on an indemnity basis, acknowledging the exceptional circumstances of the case.

Orders