Bergman and Bergman and Ors (No 2)

[2009] FamCA 820

FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN AND ORS (NO. 2) [2009] FamCA 820

FAMILY LAW – COSTS – Further documents to be filed – Costs of earlier hearing and of Full Court Appeal – Issues of undertaking previously given in support of injunctive order – Further orders or damages payable sought pursuant to undertaking

Family Law Act 1975 (Cth) s117
Family Law Rules Rule 19.23 and Rule 19.24

APPLICANT: MS BERGMAN

RESPONDENT: MR BERGMAN (via his appointed Case Guardian)

THIRD PARTY: MR SARINSSON

FOURTH PARTY: MR PORTER

FILE NUMBER: MLF 5245 of 2005

DATE DELIVERED: 26 AUGUST 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 26 AUGUST 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: NO APPEARANCE

SOLICITOR FOR THE APPLICANT: CAROLINE COUNSEL FAMILY LAWYERS

MR TRIMBOS As Agent for the Case Guardian

SOLICITOR FOR RESPONDENT:	MARSHALLS AND DENT
SOLICITOR FOR THIRD PARTY:	MS SNYDER

SUSAN SNYDER

SOLICITOR FOR FOURTH PARTY: MS ROBINSON

CAREW COUNSEL PTY LTD

Orders

IT IS ORDERED:

Hearings of 4 August 2008 and 8 August 2008

1. THAT, on or before 25 September 2009 the solicitors for the Third Party and Fourth Party make, file and serve any further application and affidavit(s) in support of the outstanding costs issues.

2. THAT on or before 16 October 2009 the solicitors for the Case Guardian, on behalf of the husband, make, file and serve any response or further affidavit(s) relied upon.

3. THAT all further written submissions, or any update of submissions already filed with the Court, be filed and served on or before 5 November 2009.

4. THAT pursuant to Rule 19.24(3) the period in which a party may ask the Court to determine the dispute be extended beyond the 42 day period and until 4.00 p.m. Friday 28 August 2009.

5. THAT the further hearing of this matter as to case management issues be listed for hearing at 10.00 a.m. on Friday 6 November 2009 before Young J (and the parties be excused from attendance on that day) subject to the appearance of solicitors.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

7. THAT there be no order as to costs of the hearing this day.

IT IS NOTED that publication of this judgment under the pseudonym Bergman & Bergman and Ors is approved pursuant to s121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5245 of 2005

MS BERGMAN

Applicant

And

MR BERGMAN (via his appointed Case Guardian)

Respondent

And

MR SARINSSON

Third party

And

MR PORTER

Fourth party

REASONS FOR JUDGMENT

1. The matter of Bergman & Bergman, Porter and Sarinsson is listed for mention before me on questions of costs and related issues.

2. Ms Robinson, solicitor, appears for Mr Porter who has been variously described as a potential third party, or thereafter a third party in proceedings that have been before me over some years.

3. The husband has, on his behalf, a case guardian appointed, his daughter, and that remains the legal situation.  Mr Trimbos appears as a solicitor engaged by the family lawyers on the record for the case guardian and husband, though his principal practice is related to the costs issues that are now before the Court and he does not have wider instructions or authority to act outside the ambit of costs.

4. Ms Snyder, solicitor, has announced an appearance for Mr Sarinsson. 

5. There is no appearance by or on behalf of the wife.

6. The background to this matter is well documented in many judgments which I have delivered.  The primary application has resolved between all parties and the explanation for the non-appearance of the wife is that she has concluded final property and financial orders with the husband.  She does not seek any costs orders as against the other parties and no costs orders are, as I understand the current circumstances of this case, sought against her.

7. On 4 August 2008 I dismissed an application in a case filed by the case guardian and that primarily related to issues of joinder of other parties.  In paragraph 7 of those orders it was provided:

   That the question of costs of the applicant and all respondents of and incidental to the interlocutory hearing be adjourned to the further listing date of 8 August 2008.

8. Additionally, on that day I certified for the attendance of Senior Counsel and counsel for all parties and by way of background I recorded that both the husband through his case guardian and the wife and Mr Porter were all represented by Senior Counsel, and Mr Sarinsson appeared in person.

9. The matter next came before me on 8 August 2008 and again on that occasion Senior Counsel represented three of the parties and Mr Sarinsson appeared in person.

10. I ordered in paragraph 15:

    That the costs of the case guardian, the wife and Mr [Porter] of and incidental to the hearing this day be reserved.

11. I further certified for counsel, including Senior Counsel (paragraph 16) and additionally I provided in order 11:

    That as to all issues of the payment of legal costs the wife, Mr [Porter] and Mr [Sarinsson] file any further applications or written submissions and legal argument within a period of 14 days.

12. Subsequently, written submissions were filed on behalf of Porter and these appear as document 269 in the court index (or thereabouts).  In that document what is sought as an order of the Court is for the husband to pay his costs, on an indemnity basis, in the sum of $162,812.28. 

13. There were costs submissions filed on behalf of the wife on or about 12 August 2008 (document 275 in the court index) which I can now leave to one side.

14. On 15 September 2008 the husband by his case guardian filed a substantial submission in opposition to costs.  That submission was drawn by Mr Strum of Counsel and included various annexures.

15. By email dated 22 August 2008 Mr Sarinsson provided to the court a document, of five paragraphs, as to costs and seemingly that was filed with the court on 22 August 2008.

16. It is important that all parties have copies of all submissions and I leave that matter to solicitors to update as between themselves.  I will have the Court confirm that those documents all remain upon the Court file for a further hearing.

17. There were two affidavits filed in relation to costs.  On 8 August 2008 Ms Robinson, solicitor for Mr Porter, filed an affidavit (number 273 in the court index) which included the relevant costs agreement and substantial correspondence and annexures in support of the identification and quantification of costs.  A memorandum of those costs was prepared and is annexed to that document.  Subsequently, an affidavit was filed by Ms Roubos, as solicitor for the case guardian on behalf of the husband.  That document was filed 15 September 2008 and is document 279 on the court index.  That affidavit has, likewise, various letters and annexures thereto. 

18. They are the only documents that have been identified to me this day, filed by way of affidavits or written submissions on the issue of an assessment of costs and the appropriateness for any specific costs order to be made, arising out of or incidental to the hearings before the court on 4 August and 8 August 2008.

19. Section 117 of the Family Law Act 1975 provides in summary that:

    Where the court is of the opinion that there are circumstances that justify it in so doing the court may make such order as to costs as it considers just.  The matters to be so considered are identified in subparagraph 2A thereof and, in particular, subparagraphs (a), (c) and (e) are identified as matters of relevance in the proceedings, without necessarily excluding other subparagraphs thereof that may receive attention from legal practitioners in argument or submission.

20. What I propose to do after extensive discussion with Counsel is to provide all solicitors an opportunity to update their affidavit evidence before the Court and in so doing deal with the issues of s.117 of the Act and, in particular, what would be a just order to be made in the circumstances.

21. It would bring more regularity to the proceedings if Mr Porter filed an application identifying the orders sought and the quantum of costs, rather than have that issue merely identified in paragraph 1 of his written submissions.  Likewise, if there is to be any costs sought by Mr Sarinsson they need be established and identified, both as to what is just and as to quantum, and his recently engaged solicitor, who has filed a notice of address for service this day, will need therefore to file an application and affidavit.

22. Dealing with the issue of Mr Sarinsson, it is reasonably apparent from paragraph 7 of the orders of 4 August 2008 that his costs of that day were adjourned to 8 August 2008, but on 8 August 2008 the particular costs of and related to that day were not reserved.  By paragraph 11 of those orders he was entitled to make any further application or written submissions but only as to the costs of or incidental to the determination of issues on 4 August 2008, and that does seem both appropriate, and therefore his costs role is limited to that day and matters of and incidental to that day.

23. What I propose by way of case management is to provide to the solicitors for Mr Porter a period of 28 days to file any application and updated affidavit upon which they rely.  I will then allow solicitors for the case guardian on behalf of the husband and Mr Sarinsson a further period of 21 days thereafter to make, file and serve any application.

24. What I intend to provide by way of order in this case to further manage these issues is as follows:

    ·to require the solicitors for Mr Porter and Mr Sarinsson, on or before 25 September 2009 to make, file and serve their application, with particulars as to costs sought, and to update or file an affidavit in support thereof;

    ·within a further period, and by 16 October, the solicitors for the case guardian on behalf of the husband will file any affidavit and response to all matters raised;

    ·any further written submissions are to be filed and served by 5 November 2009.

25. I will thereafter list the further case management and mention hearing of this matter for 10.00 a.m. on Friday 6 November 2009.

FULL COURT APPEAL COSTS

1. The further issue before me this day is the case management of issues of and related to costs ordered by the Full Court upon the dismissal of the appeal that was heard in early October 2008. 

2. I do not presently have before me the Full Court appeal file or the orders of the Full Court.   What I am advised is that an order was made for the case guardian appearing for the husband to pay costs of both the wife and Mr Porter.  No costs orders were made in respect of Mr Sarinsson and that is not an issue of and concerning Mr Sarinsson and his solicitor on an ongoing basis.  The issue of the costs ordered in favour of the wife does not remain an issue before me and she does not seek any such costs.  The issue therefore is limited to any costs that, as a matter of it being just, are to be paid to Mr Porter by the case guardian on behalf of the husband.

3. A bill of costs has been prepared and served in accordance with Rule 19.24(1).

4. I am advised from the bar table that the commercial solicitors, as distinct from the family law solicitors, for both Mr Porter and the case guardian/husband have made efforts to resolve costs questions but that has been unsuccessful.  I am unable to say within Rule 19.24(2) whether those efforts to resolve costs issues have been "reasonable and genuine".  That is relevant because of the provisions of subparagraph 4 thereof, which provide that the Court may take into account a failure to make such reasonable and genuine attempts in the consideration of any order for costs.

5. I leave to solicitors to provide any further affidavit material as may be required to satisfy the Court that there have been reasonable and genuine attempts to mediate or resolve the quantum of costs issues or, indeed, the dispute as to costs before the Court.  If any such affidavits are to be prepared and filed then that process should be completed on or before 16 October 2009.

6. As I have said, the bill of costs has been prepared and served upon the case guardian/husband and a notice of dispute of disputing those costs has been filed. 

7. The remaining issue is that Rule 19.24(3) provides that no later than 42 days after such notice there needed to be filed with the Court a request to determine the dispute.  It was on or about 3 June 2009 that the letter from the solicitors for the case guardian/husband was received by the solicitors for Porter and that is thus now beyond the 42-day period.

8. I have received submissions from the solicitors for the relevant parties on this issue.  I intend, in the exercise of my discretion, to extend that period and to provide that, by no later than 4.00 p.m. on Friday 28 August 2009 appropriate notice or request of the Court must be given in compliance with this particular sub-rule.  I will thereafter manage the issues as to the determination and fixing of costs, if proper and just, by way of the further mention of this matter on 6 November 2009 so that it runs in conjunction with the other costs issues in this case. 

9. An issue was flagged at the commencement of her submissions by Ms Robinson as to intended actions to be taken by Mr Porter as against the husband pursuant to various undertakings given by him to the Court.  There are various undertakings that have been given either by the husband through the Case Guardian or thereafter by Mr Porter. 

10. The first of these undertakings was provided to the Court on 3 July 2008 where the Case Guardian, on instructions from the husband, undertook to the Court “that she will abide any order of the Court as to any proven loss, damage or expense as may be ordered by the Court and incurred by or occasioned as a result of the granting of orders made that day”.

11. Thereafter on 30 May 2008 detailed undertakings were given by the Case Guardian, as an agent of the husband and by Mr Porter and these are detailed in paragraphs 2 and 3 of the orders thereof and the written undertaking was provided to the Court and, pursuant to paragraph 4 thereof was retained upon the Court file. 

12. The Court obtained an assurance by Senior Counsel for each party on that day that they each well and truly understood the nature and effect of that undertaking and its consequences, if breached.

13. Finally on 19 June 2008 a further undertaking was provided by the Case Guardian to abide by any proven loss, damage or expense incurred by or occasioned as a result of the pronouncement of further injunctive orders against Mr Porter made that day and arising out of the expiration of the earlier undertaking that had been given to the Court by that fourth party.

14. Whilst I have set out the above undertakings they were not the subject of any detailed submissions or legal argument.  It was foreshadowed that Mr Porter would likely file a further application to seek orders of a financial nature pursuant to the undertakings.  Unless and until any such intended action is formally identified and presented to the Court and the other parties, primarily the husband, I make no further comment upon these matters.

15. I will have these reasons transcribed and, when settled, made available to the solicitors for all parties. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: