Costs Order Sought Against Respondent in Financial Order Dispute
Bernier & Bernier (No 2) [2023] FedCFamC1A 4 (19 January 2023)
The respondent was refused leave to appeal from an interim financial order. The applicant filed an Application in an Appeal seeking a costs order against the respondent. The parties were directed by the appeal registrar to file written submissions by a specified date in support of or opposition to the application but both parties failed to file submissions by the specified date.
Facts:
On 18 November 2022, the respondent was refused leave to appeal from an interim financial order made by a magistrate of the Magistrates Court of Western Australia on 18 August 2022. The applicant then filed an Application in an Appeal on 9 December 2022, seeking an order that the respondent pay his costs of the appeal in the sum of $900 within seven days.
The applicant requested that his application be heard in open court, but that request was refused as it would probably result in the parties incurring even more cost and inconvenience squabbling over a quite modest sum. Instead, the parties were directed by the appeal registrar to file any submissions either in support of or opposition to the application by 18 January 2023, after which time the application would be determined on the papers in chambers
Issue:
Applicable law:
Federal Circuit and Family Court of Australia Act 2021(Cth) s 69- provides that the Federal Circuit and Family Court of Australia (Division 1) or a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of a civil proceeding, before the Court.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 13.38 - allows parties to file any submissions either in support of or opposition to the application.
Analysis:
The parties were directed by the appeal registrar to file any submissions either in support of or opposition to the application by 18 January 2023, after which time the application would be determined on the papers in chambers. Such procedure is permissible under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (r 13.38(2)(a)) but, to the extent that it might be regarded as irregular, any contrary rules are dispensed with (r 1.31). Both parties failed to file any submissions by the due date.
Conclusion:
By reason of the default, the application for costs was dismissed. The Application in an Appeal filed on 9 December 2022 is dismissed.
Case: Bernier & Bernier [2022] FCWAM 118
Judgment of: AUSTIN J
Counsels: