Banaszak and Executors of the Estate of Mr S Mandia and Anor (No. 2)

[2014] FamCA 883

FAMILY COURT OF AUSTRALIA

BANASZAK & EXECUTORS OF THE ESTATE OF MR S MANDIA AND ANOR (NO. 2) [2014] FamCA 883

FAMILY LAW – COSTS – Applicant to pay fixed costs of estate and intervener

Family Law Act 1975 (Cth)

APPLICANT: Ms Banaszak

RESPONDENT: Mr Peters and Mr J Mandia as personal representatives of the estate of Mr S Mandia

INTERVENER: Mr H Mandia

FILE NUMBER: MLC 6072 of 2012

DATE DELIVERED: 12 August 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wraith

SOLICITOR FOR THE APPLICANT: Mr B

COUNSEL FOR THE RESPONDENT: Mr Strum

SOLICITOR FOR THE RESPONDENT: Kenna Teasdale

COUNSEL FOR THE INTERVENER: Ms Williams

SOLICITOR FOR THE INTERVENER: Marshalls & Dent

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the respondent estate engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That the applicant pay the costs of the respondent estate fixed in the sum of $7090 and the costs of the intervener of $6380 with a stay of the payment of 45 days from this day.

4. That the reasons in respect of the costs order be transcribed and be placed on the court file.

5. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin as the 2^nd case in the monthly list commencing on 24 November 2014 not to be called before 10 am on 26 November 2014 as a three day matter.

6. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

7. By 4 pm on 16 September 2014 the applicant file and serve upon all other parties:

   (a)       an amended application setting out with precision the orders to be sought;

   (b)       all affidavits of evidence to be relied upon; and

   (c)       a financial statement.

8. The applicant pay all required court fees by 4 pm on 16 September 2014.

9. By 4 pm on 30 September 2014 the respondent file and serve upon all other parties:

   (a)       an amended response setting out with precision the orders to be sought;

   (b)       all affidavits of evidence to be relied upon; and

   (c)       a financial statement.

10. By 4 pm on 7 October 2014 the intervener file and serve upon all other parties:

    (a)       an amended response setting out with precision the orders to be sought; and

    (b)       all affidavits of evidence to be relied upon

11. By 4 pm on 21 October 2014 the applicant file and serve any affidavit in reply.

12. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

13. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

    CASE MANAGEMENT

14. The registrar may vary the filing timetable under these orders.

15. If a party fails to comply with these orders, a party who has complied may file an application in a case supported by an affidavit seeking to proceed on an undefended basis.

16. Any rulings required on objections to evidence shall be set out in the case outline.

17. By 4 pm on 24 November 2014 all parties file electronically to … a case outline in one document setting out:

    (a)       a concise set of orders to be sought;

    (b)       the list of the affidavits to be read;

    (c)       the list of objections to evidence requiring a ruling;

    (d)       the outline of the issues in dispute; and

    (e)       a list of assets and liabilities.

    COSTS

18. At the commencement of the hearing, each party shall provide the court with a statement setting out their costs incurred to that date, the source of any payments made and what costs are expected until the completion of the hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Banaszak & Executors of the Estate of Mr S Mandia and Anor (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6072 of 2014

Ms Banaszak

Applicant

And

Mr Peters and Mr Mr J Mandia as personal representatives of the estate of Mr S Mandia
Respondent

And

Mr H Mandia
Intervener

REASONS FOR JUDGMENT

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party to the proceeding should bear their own costs, unless there are circumstances evident that justify departure from that principle. Despite having a justifiable circumstance, the court is still obliged – if it is contemplating an order – to look at the matters set out in s 117(2A) of the Act. The first question in this case is whether or not there is a justifiable ground to depart from the principle. Both the respondent estate and the intervener seek costs for both the hearing today and the hearing on 18 July.

2. Simply put, the 18 July hearing came about because of a conversation in early July between the applicant and her solicitor, which seems – on the evidence of Mr B – to have arisen out of the fact that he wanted funding for the proceedings.  This case had been before me and was listed for trial at a hearing on 19 May, at which time the applicant was represented by senior and junior counsel.  For whatever reason, the issue of the preparation for the trial seems to have only really become the focus of the applicant’s solicitor in July when it was only days away from the timetable obligation being required to be met. 

3. It has been submitted that there were other problems, including the valuation of a property and also a discovery issue.  I am not concerned about the discovery issue because it was certainly not an issue in May and on any view, this case was to proceed to finalisation according to the timetable.  The valuation issue is a bit more of a vexed issue but the reality is that it is a property claimed by the intervener.  The issue was that Mr B was concerned about what his client was saying and he professionally, and I think quite properly, decided that he could not continue to take instructions, particularly when he knew that only a day or so later, there was a psychiatric examination of her to take place.  As it now transpires, the psychiatrist has indicated that the applicant was quite well when he saw her only a couple of days later. 

4. As I pointed out, orders for costs in this jurisdiction, if they are to be made, are not by way of a punishment;  they are by way of compensating a party who was an unwilling participant in proceedings.  Both the respondent estate and the intervener are unwilling parties and indeed were both keen to have the hearing occur and conclude.  What happened on 18 July was that the proceedings looked remarkably like they were not going to be able to proceed.  What was then canvassed was the issue of whether or not a case guardian would be sought for the applicant.  I refused to have the trial vacated until such time as it became clear, just exactly whether the applicant would need a case guardian.  This has all come about – both on 18 July and today – as a result of what occurred in early July by the conduct of the applicant.  As I said, it is not designed to be punishing her or even being critical of her;  it is simply a fact of life that the other parties had to participate in the proceedings unnecessarily.

5. Therefore, there is a justifiable reason to depart from the principle that each party pays their own costs.  It is said by the applicant that to the extent that the question of costs should be contemplated at all, the issue should be reserved to the trial date.  The dilemma with that is that – apart from the usual problem of it getting lost in the process – it means that the court has to look retrospectively at what occurred on 18 July and today.  In my view, that is not appropriate in this particular case when I have a very clear picture of what has occurred.

6. There are certainly unresolved issues associated with discovery. Certainly, the respondent estate has indicated non-compliance. No doubt that issue can be dealt with at trial if that is not correct. There is a justifiable circumstance to make an order. I turn to the provisions in s 117(2A). As I have pointed out, the first step is to look at the financial circumstances of each of the parties. The estate clearly is in a trust position so its circumstances are not particularly relevant. I was told on a previous occasion that the applicant has a property in excess of a million dollars, although not by much, and is otherwise pursuing what Senior Counsel described as about 25 per cent. On any basis, I could not find that she is impecunious. I have already indicated my views about her conduct in the proceedings, particularly as it relates to the compliance with court orders. There are no Legal Aid considerations here.

7. It seems to me on any view, the parties – the respondents and the intervener – are out of pocket.  There is no dispute as to the quantum of the costs.  On that basis, I propose to make an order that the applicant pay the costs of the estate of $7090 and the intervener of $6350. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 August 2014.

Associate: 

Date:  15 October 2014