Baker and Kettle; Green and Kettle

[2007] FamCA 827

FAMILY COURT OF AUSTRALIA

BAKER & KETTLE; GREEN & KETTLE [2007] FamCA 827

FAMILY LAW - APPEAL – From decision of Family Court judge – Application for costs made by written submissions by successful applicants for departure from a child support assessment – Costs issue called on by Judge for further hearing –
Administrative oversight of solicitors for applicants – Application made by solicitors on morning of hearing to appear by telephone link at the hearing – The trial Judge considered the conduct of the solicitors to be discourteous and subsequently dismissed the application to appear by electronic communication – Therefore no appearance at the hearing by the solicitors – Consequently the trial Judge dismissed the mothers’ application for costs – Whether a failure to determine the mothers’ applications for costs – Whether a failure to give reasons for the dismissal of the applications – Whether a denial of natural justice to the solicitor, against whom costs were ordered personally

L v N [2003] FamCA 1040

Family Law Rules 2004, r 5.06, 5.06(5), 16.08

APPELLANT  NA21 of 2007: MS BAKER

APPELLANT  NA22 of 2007: MS GREEN

RESPONDENT in Appeal NA21 & 22 of 2007: MR KETTLE

FILE NUMBERS:	BRF	2360	of	2002
BRF	1456	of	2001

APPEAL NUMBERS:	NA	21	of	2007
NA	22	of	2007

DATE DELIVERED: 17 August 2007

PLACE DELIVERED: BRISBANE

PLACE HEARD: BRISBANE

JUDGMENT OF: KAY, WARNICK & MAY JJ

HEARING DATE: 31 July 2007

REPRESENTATION

COUNSEL FOR THE APPELLANTS: Mr Hamwood

SOLICITOR FOR THE APPELLANTS: X Lawyers

COUNSEL FOR THE RESPONDENT: N/A

THE RESPONDENT IN PERSON: Mr Kettle

Orders

1. That the appeal be allowed.

2. That the orders made by Bell J on 9 February 2007 be set aside.

3. That the applications for costs, made by way of written submissions pursuant to the orders of 24 November 2006, be remitted to Bell J for hearing.

4. That the court grants to each of the appellant mothers a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981(Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mothers in respect of the costs incurred by the appellant mothers in relation to the appeal.

5. That the court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Full Court delivered this day will for all publication and reporting purposes be referred to as Baker & Kettle and Green & Kettle.

FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBERS: NA21 of 2007 & NA 22 of 2007
FILE NUMBERS: BRF2360 of 2002 & BRF1456 of 2001

MS BAKER

Appellant in Appeal NA21 of 2007

And

MS GREEN

Appellant in Appeal NA22 of 2007

And

MS KETTLE

Respondent in Appeals NA21 & 22 of 2007

REASONS FOR JUDGMENT

1. On 9 February 2007, Bell J had before him an issue of costs arising out of successful applications by each of Ms Baker and Ms Green, mothers of children of Mr Kettle, for a departure from a child support assessment.  The applications for costs were made by way of written submissions, in accordance with directions of the trial Judge, made when he announced the substantive orders.  However, after receipt of the mothers’ written submissions, Bell J caused the costs issue to be called on for further hearing. 

2. On the morning of the 9^th, the mothers’ solicitor, whose office was out of Brisbane, realised the listing had been overlooked and immediately telephoned Bell J’s Associate, requesting a facsimile number to which she might forward a request to attend by electronic communication.  A request was forwarded, together with a covering letter dated 9 February 2007, marked “urgent” and containing the following paragraphs:

   …We apologise for not having submitted this at an earlier date … however it was administratively overlooked.

   Could you please contact us as a matter of urgency if you require a personal appearance so we can arrange an agent.

3. When the matter came before Bell J, his Honour ordered:

   1.The application by the solicitors for the mother to appear today by telephone link is dismissed.

   2.The mother’s [sic] application for costs is dismissed.

   3.The father’s costs of and incidental to his appearance today be assessed by the taxing master and paid by the solicitor for the mother.

4. Further, by way of reasons, his Honour said only this:

   (1)I consider that the attitude of the applicant’s solicitor [X] in this matter is reprehensible in the extreme and it shows a total disregard for the courtesies that should be offered the Court and the pathetic excuse that it has been administratively overlooked is not, in my opinion, sufficient to enable me to proceed with any application.  They have not even filed an affidavit in support.

5. These proceedings are the mothers’ appeal against the orders of 9 February 2007, an appeal which, in our view, must succeed for a number of reasons, including Bell J’s failure to determine the mothers’ applications for costs, a failure to give any reasons for the dismissal of those applications, and a denial of natural justice to the solicitor, against whom a costs order was made.

6. We will say more of these and other errors after giving further context to the applications as they presented before Bell J on 9 February 2007.

History of the applications for costs

1. Mr Kettle was the father of one child with Ms Baker and two with Ms Green.  The departure applications by the mothers were determined on 24 November 2006.  As to events on that day and subsequently, we received as further evidence on the appeal an affidavit of the mothers’ solicitor, in which she deposed:

   3.I appeared in Court, connected by telephone, when Justice Bell handed down his decision on 24 November 2006.  I recall on that date Justice Bell made the following orders of relevance to the appeal, paraphrased as follows:-

   (a)That the assessment of the Child Support Agency be departed from and an order of the Court be made in his [sic] place;

   (b)That the Applicant be at liberty to file and serve any written submissions in relation to costs within 28 days of today, being 28 days from 24 November 2006.

   4.Shortly following, and at least prior to 2 December 2006, I received a sealed copy of the Orders from the Family Court of Australia.  I recall that on perusal of the Orders I formed the conclusion that the order in relation to the departure from the Child Support Agency assessment was not accurately reflected by the order and indeed it appeared on the face of the Orders that no such departure Order was made.

2. Other paragraphs in the solicitor’s affidavit refer to letters from the mothers’ solicitor to the Judge’s Associate, requesting amendment of the order under the “slip rule”.  The solicitor thought that it was important to obtain corrected orders before she sent in submissions on costs, though she had “substantially drafted” them before the time for their filing expired.

3. No response to the solicitor’s letters came.

4. On 12 January 2007 the solicitor wrote, in part:

   …you will note our previous request to extend the time for filing our application for costs as a result of us awaiting an amendment to the orders on which we seek to base our application for costs.

   Could you please indicate to us as to whether you wish us to file our application for costs forthwith or whether we should continue to wait a decision of His Honour as to whether he wishes to amend the orders pursuant to the slip rule.  We confirm that our submissions are largely complete and that finalisation simply requires a decision as to the amendment of the slip rule.

5. On 19 January 2007, Bell J’s Associate rang and said to the effect that Justice Bell was currently away from the Court and suggested that it may simply be best to file the submissions as to costs forthwith.

6. On 1 February 2007, the solicitor received in the mail an amended order.  On 5 February 2007 she received a letter, dated 2 February 2007, from Bell J’s Associate, advising that the matter of costs was listed for that Friday 9 February, at 10.00am.

7. She then acted as earlier set out.  She also telephoned the Judge’s Associate to “ensure receipt of the covering letter and Request to Attend by Electronic Communication” and she reiterated that an agent would be available “if His Honour so desired”.  The solicitor anticipated “a return telephone call if the appearance of an agent was necessary”.  She did not receive a response.

8. The transcript discloses that when the matter was called on before Bell J, the father appeared, unrepresented.  Bell J referred to a letter from the father in which he stated that the submissions from the mothers’ solicitor had been received late.  The Judge then asked that the Court Officer call the applicants three times.  Bell J said:

   It appears as though there’s no appearance.

   Do we have any material on the file, Ms Associate, from the applicants?…  Other than the submissions.…

9. The learned Judge then referred to the letter received that morning from the mothers’ solicitor, following which he delivered the one paragraph judgment earlier set and then asked the father if he was seeking an order for costs.

Discussion of the arguments on appeal

1. The gravamen of the grounds of appeal and arguments in support is taken up in the conclusions that we express below.

2. The Family Law Rules 2004 permit requests that a party attend a hearing, other court events and trials by the use of electronic communication. Assuming that the hearing of the costs application was a trial, r 16.08 applied. If not, r 5.06 applied. In either event, the notice given by the court to the solicitor, of the listing before Bell J, made it impossible for the solicitor to apply within the time prescribed.

3. True it is that, if made under r 16.08, the request should have been accompanied by an affidavit, but not so if made under r 5.06, in which case, nonetheless, much the same information as is required in the affidavit pursuant to r 16.08 is to be set out in the request.

4. Some indication of the “tenor” of the rules, which we think enabling rather than restrictive, might be gained from the note to r 16.08, to the effect that, following a pre-trial conference, a request to make a submission or adduce evidence from a witness by electronic communication, at trial, will be referred to a Judge without formal application or affidavit material.

5. Rule 5.06(5) also points to matters that a court may take into account when considering a request (which the court may do in chambers “on the documents”).  Distance and expenses are among the factors.

6. The observation of Kay J in L v N [2003] FamCA 1040 seems apposite. He commented:

   22.      … the nature of sections involving the use of video-links and audio links is such that the Court should be trying to facilitate the resolution of the issue between the parties and not be seen to be putting barriers in its way.  This is a … Court dealing with jurisdiction of litigants within the confines of a large continent.  …  Australia is a vast land.  It is expensive to travel and there may well have been merit in what the mother was putting.  The Magistrate was not to know whether there was or was not merit in it without investigating it.  There may well have been ultimately no merit in it, but at least there should have been some opportunity taken to investigate that issue rather than simply a summary dismissal of it as soon as it was raised.

7. As can be seen from the discussion thus far, there were a number of factors relevant to the course to be taken on 9 February 2007 that deserved consideration.  Apart from his perception of discourtesy by the solicitor, his Honour considered none of them.  We must therefore look for ourselves to see if the orders that his Honour made were open.

8. In saying this we do not suggest that reasons in respect of issues of this nature need be other than summary; a “dot point” history might suffice or one or two sentences may be ample to dispose of each factor.  But here, the parties, in particular two mothers who had earlier satisfied the Court that child support departures ought be granted, had financial issues at stake.  As the losing parties on 9 February 2007, the mothers were entitled to an adequate explanation for the dismissal of their claims, something beyond the exception taken by his Honour to the solicitor’s perceived discourtesy.

9. Even had the dismissal of the solicitor’s request to appear by telephone been a proper course because of that discourtesy, Bell J gave no further reasons for dismissing the mothers’ application for costs, which they had made in accordance with his directions of 24 November 2006.

10. No doubt it is arguable that an implied reason is apparent, namely that the absence of representation of the mothers once Bell J rejected the solicitor’s request, meant that they did not appear to prosecute their costs applications, and so those applications were dismissed.  Even if this is so, we think that Bell J’s reasons are insufficient in the circumstances of this case, because of what we say shortly.

11. Further, Bell J made an order against a solicitor, of his own volition and without notice.

12. In our view, the dismissal of the request by the solicitor to participate by telephone was not a proper exercise of discretion in these circumstances:

    ·The orders of 24 November called for written submissions on costs;

    ·There was no indication that the issue of costs would be decided other than by written submissions;

    ·The lateness of the mothers’ submissions was explained and excusable;

    ·Lengthy written submissions in support of the mothers’ request for costs were before the Court;

    ·The notice to the solicitor of the date of (the unexpected) hearing was short (four working days);

    ·The solicitor did apply for leave to appear by telephone.  Their office was in G, [some] kilometres from Brisbane;

    ·The solicitors twice asked to be advised of the treatment of their application so that if it was rejected, they could arrange for appearance by an agent;

    ·The father had made no written submissions;

    ·No prejudice was claimed by the father, had the solicitor’s request been granted; and

    ·We do not take the solicitor’s conduct on 9 February 2007 as discourteous.

13. In our view, that the Judge erred in dismissing the request to appear by telephone is enough for all the orders made on 9 February 2007 to fall.  However, we are also of the view that, in the circumstances listed above, more than a reference to the solicitor’s “discourtesy” and the consequent absence of an appearance for the mothers was required by Bell J to explain either why he took no note of the written submissions of the mothers or, if he took note of them, why they did not find favour.  In the absence of adequate reasons for any of the orders, they should all fall.

14. Further, as to the order against the solicitor, no point was taken that the solicitor did not appeal.  It is quite possible that circumstances exist in which the mothers are, in the relevant sense, persons affected by that order and are entitled to appeal it.  Thus we consider there is no impediment to the mothers’ appeal against that order.

Conclusion

1. It follows that the appeal succeeds.

2. This is not an appeal in which it is appropriate to re-exercise the trial Judge’s discretion.  There has not been a hearing of the costs issue on its merits.  If we decide the applications, appeal lies only with leave to the High Court of Australia.  The application for costs should be remitted to Bell J.

3. The parties should have certificates in respect of the appeal.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  17 August 2007