Bloomfield and Grainger and Anor (No 2)

[2017] FamCA 153

FAMILY COURT OF AUSTRALIA

BLOOMFIELD & GRAINGER & ANOR (NO. 2) [2017] FamCA 153

FAMILY LAW – COSTS - where the Applicant seeks costs in relation to an interim Application – where such costs are reserved to the trial Judge.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bloomfield

1st RESPONDENT: Mr Grainger

2nd RESPONDENT: The Bankrupt Estate of Ms Grainger

FILE NUMBER: BRC 89 of 2014

DATE DELIVERED: 15 March 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jones of Counsel by way of written submissions filed on 9 February 2017 and written submissions in reply filed on 2 March 2017

SOLICITOR FOR THE APPLICANT: Tucker & Cowen Solicitors

COUNSEL FOR THE 1ST RESPONDENT: Dr Greinke of Counsel by way of written submissions in answer filed 23 February 2017

SOLICITOR FOR THE 1ST RESPONDENT: Morgan Conley Solicitors

2ND RESPONDENT: No appearance

Orders

IT IS ORDERED THAT

1. The Applicant’s costs of and incidental to that part of the Application in a Case filed 21 June 2016 by which the Applicant sought that the First Respondent produce documents created or modified up to and including 1 November 2012 in respect of which he claimed privilege in the List of Documents dated 15 June 2016 are reserved to the trial Judge.

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 Bloomfield & Grainger (No 2) 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 BRISBANE

FILE NUMBER: BRC 89 of 2014

Ms Bloomfield

Applicant

And

Mr Grainger

First Respondent

And

The Bankrupt Estate of Ms Grainger

Second Respondent

REASONS FOR JUDGMENT

1. On 27 January 2017 I made an Order that the First Respondent disclose correspondence from his solicitors (Morgan Conley Solicitors) dated 17 October 2012 and 19 October 2012.  I published Reasons in support of that Order.  The Orders made that day provided to the parties the opportunity to be heard - via the provision of written submissions - in respect of any application for costs that might be brought. 

2. The Applicant now seeks an order that the First Respondent pay her costs of and incidental to the appearance on 27 September 2016.  She does so on the basis outlined in the written submissions prepared by Counsel on her behalf, both by way of original submissions and also submissions in response.  The Applicant’s Application for an order for costs is opposed by the First Respondent on the bases outlined in the written submissions filed on his behalf.

3. I have read and considered the submissions made on behalf of each of the parties in coming to my decision that the appropriate order is one which reserves the Applicant’s costs of and incidental to that part of the Application in a Case by which she sought an order for the production of correspondence in respect of which privilege was claimed by the First Respondent to the trial Judge.  I consider this to be appropriate because the very basis on which an order was made was that the Applicant had persuaded that there was “colour to the charge”, that the communications contained in that correspondence fall outside the ambit of the protection usually afforded to communications between parties and their legal representatives because such communications were made for purposes which include frustrating the processes of the law or, perhaps, a fraud in the sense that that term is used in the manner outlined in the Reasons for Judgment delivered on 27 January 2017.

4. I consider that, given the basis on which the order for production was made, the First Respondent’s opposition to disclosing the communications was unlikely properly to be one capable of concession because of the potential that any such action may be seen as tantamount to an admission or acceptance that there is, in fact, “colour to the charge” - a matter which is the subject of vigorous disagreement and a matter which, ultimately, will require determination at final hearing. 

5. I consider it appropriate to limit the reservation of the Applicant’s costs to the trial Judge to that aspect of the appearance in September 2016 in respect of which the issue for the claim of privilege was maintained because a number of the other aspects of the relief sought in both the Application in a Case and the Response to the same (which were before me that day) were, by agreement, deferred for later consideration.

6. In those circumstances, then, it is appropriate that the issue as to the manner in which the parties’ costs associated with those aspects of the relief sought in the Application in a Case are left to be determined by the Court, which is asked to determine such relief. 

7. For those very short reasons, then, I make an order in the following terms.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 March 2017.

Associate: 

Date:              15 March 2017