Banaszak and Executors of the Estate of Mr S Mandia and Anor (No 3)

[2015] FamCA 236

FAMILY COURT OF AUSTRALIA

BANASZAK & EXECUTORS OF THE ESTATE OF MR S MANDIA AND ANOR (NO 3) [2015] FamCA 236

FAMILY LAW – PROCESS AND PROCEDURE – Adjournment – non-attendance by Applicant – Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Banaszak

RESPONDENT: The Estate Of Mr S Mandia

INTERVENOR: Mr H Mandia

FILE NUMBER: MLC 6072 of 2012

DATE DELIVERED: 12 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 March 2015

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Strum

SOLICITOR FOR THE RESPONDENT: Marshalls & Dent

COUNSEL FOR THE INTERVENER  Ms Williams

SOLICITOR FOR THE INTERVENER  Kenna Teasdale Lawyers

SOLICITOR FOR
PETER SPEAKMAN & CO
(Mr Tatarka)

Orders

1. That on the application of the applicant (via her son’s written request) all outstanding applications are adjourned to 10.00am on 1 April 2015 for the determination of the jurisdictional issue.

2. If the applicant does not appear personally or by legal representative on the return date, the respondent and the third party have leave to proceed with either or both the substantive and jurisdictional issues on an undefended basis.

3. That the costs of the respondent fixed in the sum of $5500 and the third party fixed in the sum of $4400 be paid by the applicant from her entitlement in the estate of the late Mr S Mandia arising out of her interest in his will.

4. That the applicant be served with these orders by email to Mr Burke and personally.

5. That the reasons this day be transcribed.

6. That the reasons be served as soon as practical upon them being made available.

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 3) 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 2012

Ms Banaszak

Applicant

And

Estate of Mr S Mandia

Respondent

And

Mr H Mandia

Intervener

REASONS FOR JUDGMENT

1. This matter came before me today having been specifically adjourned some weeks ago when the applicant was unrepresented.  She sought an adjournment on the basis that she was not ready to proceed and she had a lot of complaints.  I gave separate reasons on that occasion and I will not repeat them.

2. I made clear on the last occasion that the jurisdictional issue that the respondents have raised was of concern to the court and, as all of the authorities have traditionally said, when a jurisdictional issue is raised it needs to be dealt with expeditiously because so much flows from it.  I made clear to the applicant on the last occasion that whether or not she was represented by lawyers, she had to be here today to deal with that matter.

3. As it now transpires, two medical certificates have been provided over the last few days, the first of which indicates that the applicant was hospitalised on 5 March.  A certificate from the doctor is not at all clear as to the reasoning behind that, but there seems to be a suggestion that the applicant has a broken wrist.  I take into account that she is 77 years of age.

4. Other material suggests that, having been admitted on 5 or 6 March, she discharged herself or was discharged on 8 March only to be readmitted on 10 March.  Further material seems to suggest that she is currently in hospital in a specific ward where the problem seems to be something to do with a blood clot on the lung.  Over opposition from the respondents, I consider it is appropriate to adjourn the matter because of the fact that the doctors indicated that she was unable to attend the court.  Curiously, a lot of the actions to convey this information have been coming from a man who I am told is your son, but he has not attended today.

5. Having regard to the fact that it is conceivable that she does want to appear and does want to participate and does want to prosecute her application, I consider that the adjournment is appropriate.  What is unclear, however, is the period of time which the adjournment should be granted.  Apart from my personal problems of time, the other difficulty is that one of the medical certificates indicates that she would be having to modify her daily activities and there is a reference to her being in a cast.  None of those matters are at all clear to me, but it seems, having regard to what I have earlier said about the urgency of determining jurisdiction, this case should be fast tracked.

6. It is important to observe that even though the applicant is unrepresented, all of the material for the purposes of that jurisdictional exercise seems to have been filed and, as counsel for the first respondent observes, he has seen that material and is prepared to deal with it if that, in fact, arises.

7. The major problem, obviously, is whether or not the applicant can, as a litigant-in-person, conduct that complicated jurisdictional issue even with the assistance of submissions that were prepared by senior and junior counsel.  One way or the other, this is not a case where the applicant is impecunious.  She may have some cash flow problems but, as I indicated on the last occasion, it is unclear to me why she cannot have legal representation.  What is disconcerting is that some days have obviously gone by since the adjournment in February before she was admitted to hospital and nothing has been filed.

8. On that basis, with some hesitation, I think the matter should be adjourned and the hearing will proceed on 1 April.  That application will be to determine the jurisdictional issue on that day, but if she does not appear then the respondents can have leave to seek either to have the jurisdictional issue determined or, indeed, to have the substantive application struck out for want of prosecution.  That then leaves me with the issue of costs.  I have already determined on the previous occasion that the adjournment was caused by the applicant’s own inept way of dealing with matters, and much the same has occurred today.

9. As I have said on numerous occasions, orders for costs are not intended as a punishment but to compensate the party or parties who have no choice but to participate.  One way or the other, whether or not the applicant was incapacitated today, the respondents would have had to have been there.  I previously indicated that this was a case where costs beyond the scale was appropriate, having regard to the complexity of the matter and the unusual way in which the applicant is dealing with the case.  I do not intend to repeat those reasons, but I find that it is appropriate to depart from the practice that section 117 of the Act sets out, which is that each party bear their own costs for the reasons that I have just outlined.

10. In addition to those matters, there is the question of the quantum of the costs and it seems to me that what is being sought, whilst above the scale, is an appropriate order to make having regard to the fact that the applicant has always known that she would have to deal with the matter today.  The question, then, is also the quantum of those costs and I find that the counsel’s fees of $4400 and solicitor’s fees of $1100 today have been thrown away in the case of the first respondent, and in respect of the second respondent $3300 and $1100 for the solicitor’s fees have also been thrown away.

11. As I have pointed out at the previous hearing, this is an unusual situation where the applicant is already entitled to $500,000 from the estate and there is no reason, therefore, why even if she has a cash flow problem or, indeed, considers herself impecunious, that those costs cannot be paid immediately from the estate of the late Mr S Mandia .

12. I propose to also order that these reasons in due course be served, but the orders today, which I will have expedited, will be served both by email to Mr Burke and personally in due course to the respondent herself, either in hospital or at her home address.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 March 2015.

Associate: 

Date:  8 April 2015