BAUM & LOKARE
[2019] FamCA 132
•22 February 2019
FAMILY COURT OF AUSTRALIA
| BAUM & LOKARE | [2019] FamCA 132 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to reopen evidence – Orders made for evidence to be reopened – Costs ordered. |
| Civil Procedure Act 2005 (NSW) s. 98(4)(c) Family Law Rules 2004 (Cth) r. 1.04, 19.18 |
| Auden & Auden and Anor [2018] FamCA 831 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 |
| APPLICANT: | Ms Baum |
| RESPONDENT: | Mr Lokare |
| FILE NUMBER: | DNC | 17 | of | 2013 |
| DATE DELIVERED: | 22 February 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 22 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fowler |
| SOLICITOR FOR THE APPLICANT: | Corbett Jessop Law |
| SOLICITOR FOR THE RESPONDENT: | Self-represented, no appearance |
Orders
Leave be granted to the Respondent de facto wife to reopen her case and make orders in accordance with those sought in her Application in a Case filed on 18 February 2019, as follows:
(a)That the Respondent have leave to reopen her case for the purposes of adducing further evidence being the affidavit of Ms Baum dated 14 February 2019 and filed with this Application in a Case, including the annexures to that affidavit.
(b)That the Respondent have leave to amend the Minute of Final Order sought by the Respondent in so far as it relates to property matters as outlined in Annexure "D" of the affidavit of Ms Baum dated 14 February 2019.
The Applicant husband pay the costs of the Respondent wife in respect to her Application in a Case filed on 18 February 2019 in the sum of $4,312.66.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baum & Lokare has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: DNC 17 of 2013
| Ms Baum |
Applicant
And
| MrLokare |
Respondent
EX TEMPORE JUDGMENT
In this matter, Ms Baum, the Respondent de facto wife (“the wife”), filed an Application in a Case on 18 February 2019, supported by an Affidavit, seeking to reopen evidence in circumstances where final judgment is reserved in the proceedings.
The purpose of the wife seeking to reopen her case is to provide evidence in relation to a Statement of Claim dated 24 December 2018, that was served upon her subsequent to the end of the final hearing in this matter. In that Statement of Claim, the Plaintiff, a Public Utility of the Northern Territory, is seeking recovery of a total amount of $48,702.97, in respect of invoices issued between 14 August 2014 and 14 August 2018 for water and sewage services, water consumption charges and reimbursement of debt collection and legal costs. Those charges relate to services which have been supplied to the parties’ property located at Town B in the Northern Territory (“the Town B property”).
The wife has not lived at the Town B property since 28 September 2011. In May 2012, she took steps to notify the Public Utility of that fact and requested that the relevant accounts be addressed solely to Mr Lokare, the Applicant de facto husband (“the husband”). In doing so, the wife paid an outstanding account, of approximately $591.48, to facilitate that transfer occurring.
It is also of relevance that, in the period since 17 April 2014, the wife has requested that the husband sell or lease the Town B property.
Counsel for the wife has referred me to a decision of Hannam J in the matter of Auden & Auden and Anor [2018] FamCA 831, in which her Honour, at [33], summarises authority of this Court regarding when it is appropriate to grant leave for the reopening of evidence in circumstances where judgment has been reserved, as follows:
In Stephens & Stephens & Ors, the Full Court said the following with respect to an application to reopen a hearing after Judgment has been reserved.
In relation to an application to reopen a hearing after judgment has been reserved the fundamental principle to be applied in determining whether to grant an application is whether the interests of justice are better served by allowing the application or rejecting it: see Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 476 with whom Mahony JA and Meagher JA agreed; Gelly and Gelly (No 1) (1992) FLC 92-290 per Treyvaud J at 79,146-148; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 per Brennan Dawson, Toohey and Gaudron JJ at 266-7 and Gaspaldi and Gaspaldi [2008] Fam CACF 134 (unreported, Family Court of Australia, Bryant CJ, Thackray and Le Poer Trench JJ, 2 October 2007). In Gaspaldi and Gaspaldi the Full Court said at [140] that the “object [was] to make the order most likely to promote the interests of justice, paying proper regard to any prejudice to the other party”.
We observe that in Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 Austin J set out at 593 what he described as a “useful statement of relevant discretionary factors” to the exercise of discretion to permit a beginning party in a civil penalty proceeding to adduce further evidence after it had closed its case. The factors included:
• The nature of the proceeding;
• Whether the occasion for calling further evidence ought reasonably to have been foreseen;
• The importance of the issue on which the further evidence is sought to be adduced;
• The degree of relevance and probative value of the further evidence;
• The prejudice to the other party;
• The public interest in the timely conclusion of litigation;
• The explanation offered for not having called the evidence.
It may also be relevant to consider what the High Court recently said in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
In dealing with those discretionary considerations, I have had regard to the submissions of Counsel for the wife, which I respectfully agree with and accept as providing a legitimate reason for the granting of leave to the wife to reopen her case.
Most significantly, in terms of the nature of proceedings, the evidence that is sought to be adduced is in respect of the property aspects of these proceedings. As noted by the High Court in Stanford & Stanford (2012) 247 CLR 108 at 120, before considering whether to make an adjustment of property, the Court must first identify “according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property” (Original emphasis). That exercise necessarily includes identifying any debts in respect to that property. As noted, the debt set out in the Statement of Claim clearly relates to property relevant to the proceedings.
Further, in terms of the nature of the proceedings, the invoices that have been served on the husband by the Public Utility should have been disclosed by him in the substantive proceedings. This has not occurred, other than for an incidental reference, at paragraph 13 of his Affidavit filed on 29 November 2018, to the debt generally.
Secondly, in terms of whether the wife could have reasonably foreseen her need to adduce further evidence, as stated, she has not been resident at the Town B property since 28 September 2011. She has not received the benefit of power and water supplied to that property, either through direct usage or income generated from that property, since that date. Further, as stated above, apart from the reference by the husband to the debt in his Affidavit, the wife had not been notified of the debt incurred. In those circumstances, it could not reasonably have been foreseen by the wife that she would be held accountable for payment of the relevant invoices.
Thirdly, in terms of the importance of the issue of the debt to the proceedings, as I have said, by reference to Stanford, it is fundamental to property proceedings that the parties’ property and liabilities be identified.
Fourthly, in terms of the relevance and probative value of the evidence regarding the debt to the Public Utility, I find that the information set out in the Statement of Claim is probative of the relevant debt, which, in the context of the property pool in the proceedings, is significant.
Fifthly, in terms of the prejudice that would be caused to the husband by the reopening of the evidence, I note that the husband, having received the relevant invoices, had an obligation to either pay those expenses or disclose the outstanding sum payable in the proceedings. Given that the husband had knowledge of that debt, he is not prejudiced by it being disclosed through the adducing of further evidence. Indeed, he had an obligation to disclose that debt.
Sixthly, in terms of the public interest in the timely conclusion of the litigation, I note that the final hearing was concluded in December 2018 and that the time for the parties to file written submission in respect of the property proceedings has ended. However, the wife’s Application in a Case has been filed in a timely manner, shortly after she was served with the Statement of Claim. While there is a public interest in the timely conclusion of a litigation, as was stated in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154, it remains the case that:
Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
Finally, in terms of the explanation offered by the wife for not having called evidence of the debt, as stated, she has explained that she was not aware of the debt, generally, until the husband filed his Affidavit on 29 November 2018, and in terms of her being jointly liable for payment of that debt, until she was served with the Statement of Claim. Upon becoming aware of her liability to meet that debt, the wife appropriately applied to reopen her case to provide that information to the Court.
Accordingly, I grant leave for the wife to reopen her case and make orders in accordance with those sought in her Application in a Case filed on 18 February 2019.
Further, in this matter, the wife has sought an order for costs. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
I consider that it is appropriate to make an order that the husband pay the costs of the wife incurred in bringing this application the reopening of evidence. In that respect, I have regard to the following matters, relevant to s 117(2A) of the Act.
In terms of the financial circumstances of the parties, having regard to the income disclosed by the husband in the proceedings, as against the expenditure claimed, I am satisfied that he has the capacity to meet the order for costs sought by the wife, without causing financial hardship.
In terms of the manner in which the proceedings have been conducted and whether either party has made a settlement offer, I note that correspondence was sent to the husband by the wife’s solicitors on 21 February 2019, with a view to avoiding the need for the wife to file the Application in a Case (Exhibit “B”). The husband did not respond to that correspondence.
In that regard, I note that parties are obligated to conduct themselves in accordance with the main purpose of the Family Law Rules 2004 (Cth) (“the Rules”), as set out at r 1.04, as follows:
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
Rule 1.04 is consistent with the obligation of parties and practitioners, under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). Specifically, s 37M(1) of the Federal Court Act provides:
The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
There is an obligation, under those principles, to not unreasonably fail to accept an offer to resolve a matter in dispute. This is made clear by Greenwood J in Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108, where his Honour said, at [94], that this requires a party to “carefully assess all the material … to determine and confront the strengths and weaknesses of their case”. In this matter, it can reasonably be inferred that the husband, in failing to respond to the correspondence from the wife’s solicitors, has made no such effort.
As stated by Jagot J in Sklavos v Australasian College of Dermatologists [2013] FCA 1065 at [35]:
These provisions are not merely exhortatory. The duty is real and can be enforced, if necessary, by appropriate costs orders.
This Court takes seriously the obligations placed on parties to make a genuine attempt to achieve a resolution of matters in dispute in order to avoid litigants incurring additional costs.
Having determined that an order for costs is appropriate, I move to consider whether an order should be made for the husband to pay a lump sum amount for those costs.
26.Rule 19.18 of the Rules provides for the methods of calculating costs. These include, in r 19.18(1)(a), the Court fixing upon a specific amount for costs or, in r 19.18(1)(b), an order for the costs to be assessed on a particular basis: Stoian & Fiening (Costs) [2014] FamCA 944 at [82].
In Stoian & Flemming (Costs) [2014] FamCA 944 at [91], Kent J endorsed the principles relevant to the application of s 98(4)(c) of the Civil Procedure Act 2005 (NSW), as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Limited & Ors [2007] NSWSC 23, stating it was “similar” to r 19.18. Those principles are:
i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation;
ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;
iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;
iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;
v. the gross sum “can only be fixed broadly having regard to the information before the Court” … [References omitted].
Consistent with those principles, it has been determined that, where a court orders a party to pay costs and the matter is relatively simple, it may be appropriate for the court to fix a lump sum. In doing so, further delay and inconvenience being occasioned by the requirement to tax a bill may be avoided: Byrnes v Brisconnections Management Company Limited (No. 2) [2009] FCA 1432 at [51].
Having regard to the correspondence sent by the wife’s solicitors to the husband on 21 February 2019, including an itemised schedule of costs incurred totalling $4,312.66, I am satisfied that the costs sought by the wife are fair and reasonable, Accordingly, I will make an order that the husband pay the costs incurred by the wife in respect of these proceedings, in the sum of $4,312.66.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 22 February 2019.
Associate:
Date: 13 March 2019
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