Bing and Bing

[2008] FamCA 1133

FAMILY COURT OF AUSTRALIA

BING & BING [2008] FamCA 1133

FAMILY LAW – COSTS – Solicitor pay husband’s costs – Leave to intervene - directions

Family Law Act 1975 (Cth)

APPLICANT: Mr Bing

RESPONDENT: Ms Bing

FILE NUMBER: MLF 1745 of 2006

DATE DELIVERED: 14 November 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dean

SOLICITORS FOR THE APPLICANT: Issac Brott & Co

COUNSEL FOR THE RESPONDENT: Mr Dickson

SOLICITORS FOR THE RESPONDENT: Nevile & Co

SOLICITOR FOR THE INTERVENOR Mr Rockman

SOLICITORS FOR THE INTERVENOR Rockman & Rockman

Orders

1. That the application in a case filed 31 October 2008 by the wife be struck out as incompetent.

2. That Issac Brott & Co pay the husband’s costs fixed in the sum of $2000 thrown away this day, such payment to be made within 14 days.

3. Leave to Rockman & Rockman, Solicitors to intervene in the proceedings.

4. That the said firm of Rockman & Rockman file and serve any application seeking orders within 14 days.

5. That my reasons for judgment this day be transcribed and be placed upon the court file.

IT IS NOTED that publication of this judgment under the pseudonym Bing & Bing is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1745 of 2006

MR BING

Applicant

And

MS BING

Respondent

REASONS FOR JUDGMENT  

1. This is an application in a case filed in the court on 31 October 2008.  The application arises out of orders that I made on 10 October 2008.  On that occasion I had the matter listed before me for mention, specifically for case management purposes, to determine its ultimate progress.  At that time, counsel appeared on behalf of the wife and sought that the matter be not only listed for final hearing, but that there also be an opportunity for the wife to file an application to enforce existing orders.  Those existing orders, using the colloquial language, related to spousal maintenance and also a payment of litigation funding, otherwise known as a Barro order.  I specifically ordered on 10 October that the matter be listed for mention before me at 9 o'clock on 14 November and then,

   And insofar as there is any enforcement of existing orders, those matters will be determined on that date if an appropriate application is filed.

2. I also indicated very clearly on that day, as is my current practice, that the matter would be allocated between the hours of 9 am and 10 am because I had other commitments in defended lists.  I required that parties put their material in writing and that they confined themselves to the hour.  This morning I am told that an application was filed on 31 October 2008, which complies with the order that I made.  It is also listed for 9 am.  The application seeks the following orders:

   a)That the court enforce those orders made on 9 February 2007:

   i)That the husband pay the wife the sum of $230,000, less the amount paid to date plus interests and costs;

   ii)That the court enforce the orders made for the payment of $1250 per week to the application by way of maintenance from 31 May 2007 to date, and continuing;

   iii)That husband pay the wife's costs on an indemnity basis.

3. I had the matter listed at 9 o'clock.  Counsel for the husband appeared, seeking to file an affidavit.  I am told that that affidavit was sworn late and at this stage I will give leave for that affidavit to be formally filed.  I sought specifically from the solicitor for the wife the precise terms of the orders he was seeking, having regard to the fact that the orders of 9 February and 31 May are still in existence.  I have been asking on a number of occasions this morning to know exactly how the orders are to be enforced, because to repeat the orders would otherwise be a nonsense.  I have invited the solicitor for the wife to tell me why the application is not incompetent, which is the position put by the husband, and the response is that he is in my hands.  In my view, the application is incompetent and on that basis it should be struck out.

4. A further application before me this morning which is made by the husband in relation to the costs thrown away as a result of these proceedings - an application for costs must fall within the powers set out in s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117 provides that the starting point in every case is that each party bears their own costs, and the only time the court should depart from that rule is where there are circumstances that justify the court in so doing. Notwithstanding on any view the husband has not complied with orders, there is evidence before me now by the affidavit filed by the husband today indicating an explanation for why the orders have not been paid.

5. That does not excuse his position, but it certainly explains it and I have not had an opportunity this morning to hear the evidence in any detail at all, nor is it tested as to the truth of either the husband's assertions or those of the wife.  This is a case however where I made quite specific orders setting the matter down for an interim hearing this morning on the issue of the enforcement, and I have already ruled that the application is incompetent.  This is a circumstance where the court ought to depart from the rule that each party pays their own costs.

6. The second question however is that the application is not so much that the order for costs be made against the wife, but against the solicitors for the wife on the basis that they drew what is otherwise an incompetent application.  I have given the solicitor for the wife an opportunity to explain to me today why the order ought not be made against the firm personally and his answer is simply that the parties have been dragged here because of the actions of the husband.  He said the wife had given him instructions to draw the application.  I have some reservations about whether or not the wife would have given instructions to draw the application the way it was drawn and, as I have already said, it is an incompetent application.

7. When making an order for costs, in addition to being satisfied that it is just to depart from the principle, the court must take into account the matter set out in s 117(2A). In this case, the financial circumstances of the parties are not matters about which I should be too troubled on the basis that they are talking about very significant sums of money. Whether the husband can pay the amount involved is not a matter that I should take into account here, having regard to the Full Court's decision in this very case in which the court said that the issue of the payment was an enforcement matter rather than a substantive issue.

8. I am also obliged to take into account whether or not any of the parties is in receipt of legal aid.  Having regard to the matters that I have just mentioned, that sounds most unlikely.  I am to take into account the conduct of the parties to the proceedings.  As I said earlier, I do not know what the truth of the situation is in relation to the financial matters until such time as the evidence is tested, but I am very concerned in this case that an application was specifically foreshadowed and filed and, as I have already ruled, was incompetent.  I am to take into account the fact that the proceedings are necessitated by the failure of a party to comply with orders but, as I have also indicated, that is a matter of some dispute.

9. The next matter under s 117(2A) is whether a party to the proceedings has been wholly unsuccessful in the proceedings. It is quite clear in this case that the wife has been wholly unsuccessful on the basis of the incompetence of her application. Another matter that I take into account is whether or not there has been an offer in writing to settle the proceedings. I have been told this morning that an offer has been made to resolve the matter on the basis that a property be sold to satisfy the terms of the existing orders and that that has been rejected.

10. It seems to me more importantly that not only should an order for costs be made, but it ought not be visited upon the wife.  She obviously gave instructions to enforce the orders and it is the practitioner's responsibility to make sure that the application is competent.  It seems to me that the practitioner has to take responsibility for the application.  The application, albeit it in words that I found to be incompetent, is noted as having been prepared by Isaac Brott and Co, not by a particular practitioner.  The use of the firm rather that the individual does not comply with rules, which gives me some concern, but in the circumstances I think it is appropriate that I make an order for costs and that they be made against the firm. 

11. The quantum of the costs is the next issue that I need to turn my mind to.  Mr Dickson on behalf of the husband seeks the sum of $2000, which includes the instructions, the preparation of the affidavit and his brief fee for the hearing today.  If anything, I would have thought that is probably a little on the conservative side, but it is certainly not outside the range of costs that I would have been prepared to make.  Costs in every case are a discretionary issue; it seems to me this is a case where I should exercise a discretion and I make an order that the firm Isaac Brott and Co pay costs of $2000 thrown away this day within 14 days.

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  27 November 2008