Crampton and Robinson

[2013] FamCA 65

FAMILY COURT OF AUSTRALIA

CRAMPTON & ROBINSON [2013] FamCA 65

FAMILY LAW – JURISDICTION - Accrued – where the husband’s application to have his tortious claim heard concurrently with the parties’ property dispute was dismissed – where the State matter did not arise from the same substratum of facts as the parties’ Federal matter – where the Court otherwise chose not to exercise its accrued jurisdiction
FAMILY LAW – COSTS – where it was just to require the husband to pay the wife’s costs of replying to his interim application for accrued jurisdiction – where the wife had short notice of the husband’s application – where the husband had a small chance of success – where the wife was required to retain counsel on an interim basis owing to the complexity of the law

Family Law Act 1975 (Cth)

Philip Morris Inc. & Anor. v. Adam P. Brown Male Fashions Pty. Ltd (1981) 148 CLR 457

APPLICANT: Mr Crampton

RESPONDENT: Ms Robinson

FILE NUMBER: SYC 326 of 2011

DATE DELIVERED: 11 February 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 7 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gersbach

SOLICITOR FOR THE APPLICANT: Fitzpatrick Solicitors

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Michael Conley Lawyers

Orders

1. That the hearing date of 7 February 2013 be vacated.

2. That the Application in a Case filed by the husband on 31 January 2013 is dismissed.

3. That the husband pay the costs of the wife in respect of the said Application in a Case as agreed between the parties or assessed NOTING that it was reasonable and appropriate for the wife to brief Senior Counsel to advise and appear.

4. That the proceedings be adjourned to 9.30 am on 17 April 2013 for directions NOTING that the husband is to be sentenced in the District Court on … March 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crampton & Robinson 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 SYDNEY

FILE NUMBER: SYC326 of 2011

Mr Crampton

Applicant

And

Ms Robinson

Respondent

REASONS FOR JUDGMENT

Introduction

1. In December 2009 there was a set of events in European Country A, involving these parties and the wife’s niece, which gave rise to the husband being subsequently charged in New South Wales with serious criminal offences.  The husband was severely injured on that day as a result of falling from a hotel window.  Subsequently, the parties separated.

History of the proceedings

1. On 20 January 2011 the applicant husband filed an application for final orders together with a financial statement, in this Court. 

2. On 21 March 2011 the respondent wife filed her response together with her financial statement. 

3. On 25 March 2011 there was a case assessment conference when directions were made for the filing of certain documents in anticipation of a conciliation conference on 3 June 2011.

4. On 20 May 2011 the wife filed her financial questionnaire. 

5. On 23 May 2011 solicitors then acting for the husband, Slater & Gordon, wrote to the Court asking on behalf of both parties that the conciliation conference be adjourned because the husband was:

   …facing serious criminal charges…listed for trial at the end of October, 2011 which may run into November, 2011.

6. On 26 May 2011 the request was granted and the conference was administratively adjourned to 20 December 2011. 

7. On 9 December 2011 the solicitors for both parties wrote to the Court advising that the criminal proceedings had not been completed and asking for the conciliation conference on 20 December 2011 to be vacated. 

8. On 15 December 2011 the Court advised the parties that the directions for the filing of material had not been complied with.  Also on that day, the conciliation conference was adjourned to 27 March 2012.

9. On 26 March 2012 a decision was taken that the conciliation conference for the following day be vacated for non-compliance with orders 4, 5 and 9 of the directions made 12 months earlier.  The statement in relation to compliance was, strictly correct.  The parties had been required to each file a Financial Questionnaire within 21 days.  The wife filed her Questionnaire about six weeks out of time, but had done so prior to the initial conciliation conference appointed for 3 June 2011.

10. The husband did not file a Financial Questionnaire for some 13 months. 

11. The direction to file a single balance sheet required the applicant husband to initiate the draft and in relation to the exchange of proposals for settlement, they were to take place 14 days prior to the conference date that was vacated.  Events involving the criminal proceedings overtook the parties. 

12. A telephone procedural hearing before a Registrar was then listed for 10 May 2012. 

13. On 12 April 2012 the husband filed his Financial Questionnaire. 

14. On 10 May 2012 the Registrar made fresh directions in anticipation of a conciliation conference on 1 August 2012. 

15. On the date of the conciliation conference, 1 August 2012, the husband did not appear.  No explanation had been provided by the husband.  His solicitors had filed a Notice of Ceasing to Act 12 days prior to the conciliation conference.

16. The matter was sent to be allocated a date for the first day of hearing before a Judge.  In the directions made, the husband was advised that his failure to participate could lead to the matter proceeding undefended.  A direction was made as follows

    19.      No affidavits… are to be filed by the parties’ without permission of   the Court.

17. On 2 November 2012 the matter was given a listing for a first day hearing before a Judge on 27 November 2012. 

18. On 8 and 14 November 2012 the husband, in person, formally requested inspections of the file. 

19. On 16 November 2012 the husband instructed his current solicitors, Fitzpatrick Solicitors. 

20. On 27 November 2012 the matter came before me as a first day before a Judge.  The applicant husband was represented by counsel.  The respondent appeared in person.

21. On that day both parties sought to have the matter heard as expeditiously and as cost effectively as possible.  On that occasion, there was no reference to the possibility of the husband doing what he did three weeks later, which was to institute civil proceedings against the wife in tort, arising out of the events in 2009.  Nor was there any reference to a looming limitation problem in relation to any such application.

22. On 27 November 2012 orders were made for the preparation of trial and the matter listed for a final hearing on 7 February 2013.  Order 4 was as follows:

    4.     For the hearing, each party has leave to:

    4.1rely on relevant paragraphs of previous affidavits filed;

    4.2update their financial statement; changes may be handwritten if necessary.

    5.     Each party shall otherwise file and serve a short updating affidavit prior to hearing.

23. Order 4.1 should more accurately have referred to “previous documents filed”, not “previous affidavits”. 

24. Both parties had filed Financial Questionnaires.  Neither party had been directed to file an affidavit.  There had been no directions at that time for the filing of affidavits.  To the contrary, the parties had been constrained at the conciliation conference from filing affidavits without the leave of the Court

25. In Order 5 the parties were directed to file and serve a short updating affidavit prior to the hearing.  Again, the word “updating” was not accurate.  However, what was made clear to the parties and counsel for the husband was that there was latitude for the parties to rely on parts of documents (inaccurately described as affidavits) filed to date, those parts to be identified by a paragraph number, and for a short affidavit to be filed bringing the evidence up to date.

26. I am satisfied that the parties understood what was required of them and what they were being permitted to do. 

27. On 3 December 2012 solicitors for the husband made a formal request for inspection of the file.

28. On 7 December 2012, the husband’s solicitors sent an email message to the wife informing her that he had:

    …ascertained no affidavits had been filed in the matter and seeking her consent to relist the matter for the purpose of seeking to have the hearing listed on 7 February 2013 vacated.

29. This appears to be the commencement of a misapprehension by the husband’s lawyers that both parties had failed to previously file affidavits.  Given the wording of the orders, it is understandable. 

30. On 19 December 2012 the husband filed a statement of claim in the District Court of New South Wales at Sydney, in the category “torts, trespass, assault/battery, negligence”.  In this claim the husband pleads that the wife pushed him through an open window of the hotel in which they were staying in December 2009, causing him to fall and be injured.  Damages were sought, including aggravated damages and exemplary damages.  I am unaware as to when this statement of claim was served on the wife.

31. On … December 2012 the wife complied with the order of 27 November 2012 to make an offer of settlement to the husband.  On that same day, the husband was convicted in the District Court of two offences.  The husband is now incarcerated. 

32. On 28 December 2012 the husband’s solicitor sought leave to issue two subpoenas in respect of the final hearing.

33. On 18 January 2013 the husband filed an Application in a Case, supported by an affidavit of his solicitor.  This Application was to vacate or adjourn the hearing. 

34. On 24 January 2013 the husband filed a second Application in a Case, supported by an affidavit of his solicitor, seeking the release from prison of the husband for the purpose of attending Court on 7 February 2013.  That order was made.

35. On 13 January 2013 solicitors for the husband wrote seeking leave to issue further subpoena to a bank. 

36. On 31 January 2013 the husband filed a third Application in a Case, supported by an affidavit of the husband’s solicitor.  This application sought the following order:

    …that the Court exercise its accrued jurisdiction and join proceedings currently pending in the District Court of New South Wales… to be heard concurrently with these proceedings.

37. On that same day, 31 January 2013, a request by the husband to issue a subpoena relating to an Application for Final Orders was granted by a Registrar. 

38. On 4 February 2013 the husband filed an affidavit of 100 pages in support of his final property application. 

39. On 5 February 2013 the husband filed a further brief affidavit in support of his property application, together with a Financial Statement.

40. On 7 February 2013 the matter came before me.  The husband was given leave to file in Court an Amended Final Initiating Application.  This was done by consent. 

41. Accordingly, on 7 February 2013, there was before me:

    1.The Application of the husband to vacate the hearing date, filed 18  January 2013;

    2.The Application in a Case of the husband to join the District Court proceedings to these proceedings; and

    3.A subsequent oral Application by the wife for costs.

42. The Application to vacate the hearing date was not opposed in the circumstances.  It was reasonable, in my view, for the husband to have filed his affidavit material in anticipation of his application to vacate the hearing date perhaps being unsuccessful. 

43. However, it was also reasonable for the wife not to have filed her material, given the new civil claim in the District Court and the nature of the Application in a Case filed by the husband on 31 January 2013.  The parties had not been required to file their affidavits bringing the matter up to date by any particular date, just prior to the hearing.

44. Clearly, the matter became much more complex between 27 November 2012 and 7 February 2013.  As a result of the husband filing his claim in the District Court and making an application to this Court for those proceedings to be taken up in these. 

45. Accordingly, I do not consider there is any basis for criticism of the parties or either of them in relation to the vacation of the hearing date of the property proceedings. 

46. The application of the husband to join the civil matter in the District Court to these proceedings was opposed by the wife.  Submissions were taken and I indicated that I would not grant the application.  In the context of matters set out above I will:

    a)Give brief reasons for the dismissal of the application filed 31 January 2013.

    b)Deal with the oral application for costs by the wife in respect of that application having been unsuccessful. 

47. These are those reasons.

48. There is apparently a notice of motion filed in the District Court for transfer of the civil proceedings to this Court.  That Notice of Motion has apparently been adjourned pending the outcome of this application. 

49. There is no mechanism for the District Court of New South Wales to simply transfer proceedings there to this Court. 

50. In the event accrued jurisdiction was taken up, re-pleading would be required.  What is being argued in essence is that events in European Country A in December 2009 and the dispute between the parties about the division of their matrimonial property, constitute one justiciable controversy.  If that were the case, this Court would have jurisdiction extending to the resolution of the whole matter embraced by the controversy including the non Federal matter in the District Court[1].

    [1] Philip Morris Inc. & Anor. v. Adam P. Brown Male Fashions Pty. Ltd (1981) 148 CLR 457 at 512

51. For that to be the case, the District Court matter would have to form an integral part of the resolution of the Federal matter here, the property proceedings.  The issues would have to be unable to be severed in practicable terms.  The issues would have to be unable to be severed and would necessarily arise out of the substratum of facts. 

52. There is clearly a connection between the two controversies, being the two parties involved in both of them, but I do not consider that they arise out of the same substratum of facts, nor that they are unable to be severed from each other.  If I am wrong about that, I would exercise the discretion against taking up a crude jurisdiction in any event for the following reasons. 

53. The State proceedings are a claim for damages arising from a particular incident in European Country A on one day.  It seems likely that the law of European Country A would be the applicable law, although that aspect may be arguable.  It seems likely that third parties such as police and others present in the hotel at the relevant time could be parties to the proceedings.  Evidence from the police and perhaps from the hospital where the husband was a patient may be called.  The wife’s niece and the parties’ young son could be witnesses in that dispute.  There would be a question of the quantum of damages in the event that the tort was made out. 

54. There is the possibility of third party entities being joined, for instance, insurers and any national schemes which may exist in European County A.  I do not accept the argument that this action is merely the equivalent of the consideration during property proceedings of the impact of family violence by one party against another. 

55. The District Court action is a discrete matter, the events of just one day, more properly dealt with in the District Court, or perhaps the Supreme Court, for a determination of whether or not the particular conduct of the parties gives rise to the tort in question and if it is made out, how that should be compensated by damages of different kinds. 

56. It is an important consideration that it would be entirely inappropriate for the children, that is the parties’ son and the wife’s niece, to be exposed to the circumstances of the parties’ matrimonial dispute in the context of the civil claim being heard here.  I also take into account the extent to which the proceedings would be lengthened by the hearing of the two proceedings together with the real possibility that:

    a)Having come to the determination of a civil claim, one or other of the parties might well ask me to disqualify myself from then hearing the matrimonial property proceedings.

    b)That the husband would be in a position of perhaps being advised not to give evidence in circumstances where there is a prospect of some charges being re-tried and also the prospect of an appeal by the husband against his convictions and sentencing. 

57. Further, the husband has the onus in the civil proceedings in the District Court.  The onus could be lost if the matters were heard together.  In the usual way, each party in property proceedings in this Court is effectively an applicant for the division of property.  I do not consider that there is accrued jurisdiction on this particular set of facts. 

58. However, as stated, if I am wrong about that, I decline to exercise the discretion in favour of exercising the accrued jurisdiction for the reasons set out above and further for the lack of expertise in this Court in dealing with the assessment of damages in the event that the tort was made out.

59. Whilst it was understandable that the husband might seek to contain costs by having both matters heard in the same court, I do not consider that this end would be met especially in circumstances where this Court could be asked to determine the law of a foreign jurisdiction, namely European Country A.  Accordingly I dismiss the application of the husband. 

Wife’s oral application for costs  

1. The usual law is that each party to proceedings bear his or her own costs.  If there are circumstances that justify it, the Court may make an order as to costs as it considers just.  I take into account the following matters. 

The financial circumstances of each of the parties

1. Both parties are in difficult financial circumstances.  The husband is presently in gaol.  He has expended significant sums on legal representation in his criminal proceedings.  His future employment is at risk.  The wife is in full time employment.  She lives in the former matrimonial home.  She is working to support the parties’ child and the niece who is in her care.  She has instructed senior counsel to deal with the application in respect of accrued jurisdiction.  In my view, it was entirely reasonable for her to do so given the complexity of this area.

Legal Aid

1. Neither party has the benefit of a grant of Legal Aid in the matter.

Conduct of the parties

1. As set out above, the husband gave no indication to the Court on 27 November 2012 when the matter was set down for final hearing that he intended to bring an application for accrued jurisdiction. 

2. It may well be that the matter had not been considered at that stage.  I accept the evidence on behalf of the husband that there was a limitation period which compelled the filing of the statement of claim by a particular date.  However, objectively, the wife has had to move swiftly with the longest period available to her being 19 December 2012 until 7 February 2013 to deal with the new application and its possible implications for these proceedings.

Failure to comply

1. No directions had been made for this Application in a Case.  The wife has not responded to it.  Given the time available and her position, it was not unreasonable for her to decide not to file any documents which would have increased costs with jurisdiction being an issue.

Success in the proceedings

1. The applicant husband has been wholly unsuccessful in the application for the exercise of accrued jurisdiction.  The wife has been entirely successful in her opposition to it. 

2. There is no evidence before me that any proposal to settle this aspect, that is the joining of the District Court proceedings to these proceedings, was attempted.  The husband has filed fresh proceedings against he wife in the District Court.  He has sought to have those proceedings taken up in these matrimonial property proceedings and has been unsuccessful.  He must have known that there was a real possibility that his application may not succeed and that the imposition of the wife of contending with such an application and on short notice was highly unlikely to be one where she would represent herself. 

1. In my view, it is appropriate for the husband to meet the costs of the wife in respect of the short hearing today and its preparation. 

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 11 February 2013.

Associate: 

Date:   15 February 2013