Commissioner of Taxation & Strahan & Anor

[2014] FamCA 295

FAMILY COURT OF AUSTRALIA

COMMISSIONER OF TAXATION & STRAHAN AND ANOR [2014] FamCA 295

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Commissioner of Taxation sought leave to withdraw from proceedings – application opposed by wife who sought further disclosure from the Commissioner – oral application by wife to file a response on the day of the hearing – insufficient explanation as to why the wife had failed to comply with the Family Law Rules 2004 (Cth) – little merit in opposing Application in a Case – wife to pay costs of the Commissioner of Taxation

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

APPLICANT INTERVENOR: Commissioner Of Taxation

RESPONDENT WIFE: Ms Strahan

RESPONDENT HUSBAND: Mr Strahan

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 4 April 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 April 2014

REPRESENTATION

COUNSEL FOR THE INTERVENOR: Mr Kasep

SOLICITOR FOR THE INTERVENOR: Commissioner of Taxation

COUNSEL FOR THE RESPONDENT WIFE: Mr Heinrich

SOLICITOR FOR THE RESPONDENT   WIFE:

COUNSEL FOR THE RESPONDENT HUSBAND:

SOLICITOR FOR THE REESPONDENT HUSBAND:

Winter & Co

Mr Wilson

Kennedy Partners

Orders

1. The Commissioner of Taxation is removed as a party to these proceedings.

2. The wife to pay the legal costs for the Commissioner of Taxation of and incidental to the Application in a Case filed by the Commissioner on 14 March 2014 with such costs to include the costs of the hearing today and the attendance of the solicitor and junior counsel today with costs to be agreed and in default of agreement as assessed by a Registrar of this Court UPON NOTING the costs do not include the costs of travel and accommodation for junior counsel and instructing solicitor for today’s hearing.

3. The matter is certified fit for junior counsel. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Commissioner of Taxation & Strahan and Anor 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 ADELAIDE

FILE NUMBER: ADF 228 of 2005

Commissioner Of Taxation

Ms Strahan

Respondent Wife

And

Mr Strahan

Respondent Husband

EX TEMPORE REASONS FOR JUDGMENT

1. I am now being asked to grant leave to the wife to tender, at this hearing, a Response to the Application in a Case filed by the Commissioner of Taxation on 14 March 2014.  That matter was listed for mention before me on 17 March 2014 when the matter was adjourned as it appeared that the wife had given instructions that the application on behalf of the Commissioner of Taxation to no longer be a party to these proceedings, was opposed.  The matter was then adjourned to this morning. 

2. The issue relates to any adequate explanation for failing to comply with the rules of the Court which provide that a respondent, who seeks to oppose the Application in a Case, must file a Response to the Application in a Case at least seven days before the hearing. 

3. The Court needs to consider that explanation not only in the context of the rules of the Court but also on the basis of the principle that justice must be done between the parties.  There is a capacity to waive the rules where it is appropriate to do so to ensure that justice has been done and has been seen to be done.  That, however, does usually require some adequate explanation for the failure to comply with the rules of the Court.  An adequate explanation for that has not been given in this matter.  The counsel for the wife, from the bar table, says that the wife and her instructing solicitors have been busy doing other things.  That is an insufficient explanation.

4. In relation to the issues, which would require the Commissioner of Taxation to continue to be a party to these proceedings, the counsel for the wife raises from the bar table the fact that the wife is seeking full disclosure from the Commissioner of Taxation, being disclosure of documents which it is alleged would assist the wife in determining these financial proceedings. 

5. Those documents are referred to as documents which have been received in relation to the dispute between the Commissioner of Taxation and the husband (which has now been resolved) and the payment of considerable sums of money by the husband to the Australian Taxation Office to resolve that matter.

6. I am not satisfied that any documents, which were in the possession of the Commissioner of Taxation, which are relevant to these proceedings, would exist which are not documents which are in the possession of the husband which, if relevant to these proceedings, would be the subject of necessary discovery and disclosure by him.  Similarly, in relation to payments by the husband of debts due and paid to the Commissioner of Taxation;  that information and documents relevant to that are either in the possession of the husband or under the control of the husband to produce.

7. Weighing all of the factors concerning the planned opposition to the Application in a Case filed by the Commissioner of Taxation, I am satisfied that there has not been a sufficient explanation and that it is not appropriate to waive the rules in relation to compliance which would require the Court to receive the response to the application and that would create a substantial risk that this matter might be adjourned to a later date delaying further listing of the main proceedings and causing costs to all of the parties as well as further hearing dates for this Court.

8. I, therefore, refuse to receive the response to the Application in a Case.  As there has been no Response to the Application in a Case filed on behalf of the Commissioner for Taxation, I propose to make the orders sought by the interveners in the Application in a Case filed on 14 March 2014 which removes the Commissioner as a party to these proceedings. 

9. I deal with the question of costs. The Commissioner for Taxation seeks an order that the wife pay the legal costs of the Commissioner for Taxation including the costs of travel and accommodation for the instructing solicitor and counsel to attend from Sydney today. That order is opposed on behalf of the wife. The issue in relation to section 117, clearly, is that the Court has a discretion to make an order for costs and needs to take into account the various factors. The one that is most significant in this matter is that the wife has been wholly unsuccessful in the opposition to the orders which were sought. It is also a significant factor that the wife has failed to comply with the rules in relation to filing any proposed response to the Application in a Case before today.

10. I am satisfied, therefore, that for the reasons which I gave in relation to the dismissal of the oral application on behalf of the wife to file a response to the Application in a Case, that there was limited merit in the opposition to the Commissioner for Taxation ceasing to a be a party and such arrangements should have been made well in advance of the proceedings before the Court. 

11. One issue which has been put before the Court in the affidavit material now filed on behalf of the Commissioner is that although the Court was told on the first occasion that the husband had paid all moneys owing to the Commissioner for Taxation, that was then, at that time, not correct but is now correct.  That may raise only a minor factor as to the ongoing arrangements and the costs incurred for the parties in relation to the Application in a Case by the Commissioner for Taxation to be removed as a party to the proceedings.

12. The question arises as to whether the costs, which I clearly say should be paid by the wife, should include the costs of solicitor and counsel for travel and accommodation in order for them to attend today.  The fact that the wife may well have been on notice that it would be likely that such costs might be incurred in these proceedings does not necessarily indicate that such travel and accommodation costs should be factors which would require the wife to recompense the Commissioner for such costs above and beyond the normal question of legal costs.

13. I am, therefore, satisfied that under the provisions of section 117, it is appropriate and just for the wife to pay the legal costs of the Commissioner of Taxation of and incidental to the Application in a Case and that the costs include the costs of the solicitor and counsel fees for attendance today, but not including costs of travel and accommodation. It is certified that junior counsel’s attendance was fit for this occasion.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 April 2014.

Associate: 

Date:  8 May 2014