Daniels and Findlay

[2011] FamCA 88

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY [2011] FamCA 88

FAMILY LAW – ENFORCEMENT – Costs – Vexatious litigant

APPLICANT: Mr Daniels

RESPONDENT:  Ms Findlay

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 21 January 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 21 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A Combes

SOLICITOR FOR THE APPLICANT: Holt & McDonald

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the wife shall have leave to withdraw her Application for Contravention filed on 21 December 2010.

2. That the applications otherwise filed by the wife on 17 December 2010, 21 December 2010 and today shall be and are hereby dismissed.

3. That pursuant to s 106A of the Family Law Act a Registrar of this Court shall be appointed to sign all documents on behalf of the wife upon the request of the husband’s solicitor:

   (a)To effect her removal as a director of:

   (i)     A Pty Ltd

   (ii)    P Pty Ltd; and

   (iii)   P Global Pty Ltd

   and until her removal has been effected, the wife is by herself, her servants and/or agents restrained from doing any act or signing any document, or attempting to do so, on behalf of those companies, including but not limited to instructing Mr Z to undertake or continue audit work or other work in relation to Z Pty Ltd and/or the other companies and/or the Z Superannuation Fund; and

   (b)To effect a withdrawal of any bank funds held in the parties’ joint names or the following companies:

   (i)     Z Pty Ltd

   (ii)    P Pty Ltd; and

   (iii)   P Global Pty Ltd

4. That the husband’s solicitor is requested to serve a copy of these orders on Mr Z as soon as practicable to draw to his attention that he no longer has instructions to continue any audit activities in relation to A Pty Ltd, the A Superannuation Fund, P Global Pty Ltd and/or P Pty Ltd.

5. That pursuant to s 118 of the Family Law Act the wife shall not, without leave of a Court having jurisdiction under this Act, institute proceedings under this Act save that her rights of appeal are not affected by this order.

6. That the wife shall pay the husband’s solicitors a sum of $5,000 costs in relation to these proceedings, such sum to be deducted from the wife’s share of the Holt & McDonald Trust Account monies referred to in paragraph 2(d) of the orders of 9 March 2010.

7. That the preparation of these orders shall be expedited.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1996 of 2008

MR DANIELS

Applicant

and

MS FINDLAY

Respondent

REASONS FOR JUDGMENT

1. This case has a very long history.  I finished the property case in December 2009 and ultimately made the final property orders on 9 March 2010.  There have been many appearances and many applications since then.  The orders made that significant time ago now are still not finalised. 

2. Today I have before me the wife’s Application in a Case filed 17 December 2010 and her affidavit filed the same day.  The affidavit of Mr Z filed on 17 December 2010 goes with that application.  I also have her Application in a Case filed 21 December 2010, an Application for Contravention filed 21 December 2010, and there was a lengthy affidavit filed 21 December 2010 that appeared to accompany both the Application in a Case and the Application for Contravention.  I also have before me today an Application in a Case in relation to an affidavit by Mr I, having granted the wife leave to file that today. 

3. I have, on behalf of the husband, a response to the Application in a Case filed 14 January 2011, his affidavit filed 14 January 2011, the affidavit of his solicitor Donald Ryan filed 14 January 2011, the affidavit of the accountant Mr I filed 14 January 2011, and an affidavit by a neighbour of the wife’s, Mr Y filed 18 January 2011.

4. Although the husband was not properly served with most or any of the applications, or at least some of them, his solicitor made efforts through the Family Court portal to obtain copies of relevant documents and has taken no issue on the service question.  In those circumstances, he has not put in a response to the later applications, and made an oral application today for those applications to be dismissed.  His response otherwise filed on 14 January 2011 sought the dismissal of all the other applications, plus that the wife be declared a vexatious litigant, that she be restrained from filing any further application without leave of the Court, and that she pay the husband’s costs on an indemnity basis.

5. The wife’s Application for Contravention was, in the course of argument today, sought to be withdrawn by her and I have made an order that that occur.  I find no merit in her other applications, for reasons that I shall give later.  I propose an order today dismissing them all.

6. I generally prefer to give reasons at the time that I tell people the result of the case.  In this case, however, the need for finality and certainty prevails over the desirability for parties to immediately understand the full reasoning contemporaneously with orders. 

7. In this case, I should add, that the mystery of my reasoning is perhaps less troubling or mysterious than in some cases.  Much of the wife’s material before the Court attempts to deal again with matters already determined at final hearing and/or the subject of previous rulings or judgments, or at least of the same nature.  In any event, although challenged a little by the bulk and dense detail of some of the wife’s material, I will endeavour to prepare reasons as soon as possible.

8. The husband has sought specific orders today in addition to the dismissal of the wife’s applications.  I propose certain orders, again with reasons to follow, that, in my view, simply cannot await the preparation of those reasons.

9. If these orders are left undone then there is a strong probability that the final orders of 9 March 2010 cannot be brought to conclusion.  That would be unjust, and it is clear on the material that additional orders need to be made now to preclude the wife from acting on behalf of particular entities, as a director, or refusing to sign documents that must be signed for the release of bank funds to the husband.

10. Finally, the husband’s order that the wife be declared vexatious and prohibited from commencing proceedings without leave of the Court is a reasonable one, and it is essential to make the order sooner than later.  Past experience has shown that the wife has filed various applications pending a reserved decision or adjourned proceedings.  In my view it is extremely undesirable that things be left in a manner whereby that could occur again, so that the completion of the property orders now long overdue would be again diverted and/or thwarted.  I emphasise again that all these orders require, and the parties are entitled to, detailed reasons for judgment.

COSTS

1. Costs are governed by s 117 of the Family Law Act.  It is a discretionary matter for me.  There is a whole range of matters that I need to take into account in exercising my discretion.  They include the conduct of a party. 

2. The costs that are generally considered are the party-party costs, that is not costs on the basis of what a party actually owes his solicitor.  I am satisfied, subject to submissions from the wife, that you have a very strong argument for costs in this case.  Your client has been put to the expense of coming to court.  The wife has withdrawn a contravention application again (and that has happened in the past when you have been at Court and prepared) and your client has been put to the expense of preparing for that application.  She has been unsuccessful in her other applications.  Your client has been successful in his application.

3. I am conscious that today I have made an order that will preclude the wife from coming to court unless she can satisfy a judge that there is a good reason to do so.  That means she can no longer keep coming back in this way. 

4. I am more inclined to look at this on the basis of costs rather than indemnity costs.  In the exercise of my discretion I can take into account the fact that I think the wife is struggling.  I do not have any medical expertise, and I am not approaching it from that point of view but from the point of view that she is obviously finding things tough.  She presents in quite a different way now from how she presented at the trial.  She was strong and robust at that point, but now appears more frail.  One of the things I have to take into account is not to make orders that are crushing in any way to a party.

5. Generally, each party bears their own costs but under s 117(1) of the Act, I am entitled to exercise my discretion in favour of an order for costs. The husband seeks indemnity costs. I propose ordering costs but not indemnity costs. I propose ordering costs because, as I have already indicated, the wife has brought a number of applications that have put the husband to expense. She has been unsuccessful in those applications. The orders that he sought, he has sought successfully. As a matter of justice to him there must be some sort of compensation.

6. He does have an arguable case for indemnity costs but at the same time, although conscious that the wife will in fact shortly be in substantial funds, I do need to take into account her personal circumstances, including her apparent current frailty, the fact that she has a number of outstanding and now substantial costs orders against her, and the fact that the orders I have made today should ameliorate the problem for the husband of having to return to court in this manner.

7. Although I could allow time for the parties to agree on costs, failing which they could have them fixed by a Registrar, by far the cheapest course is if I fix those costs now.  It means that I cannot go through them in the fine detail that a Registrar would, but in the exercise of my discretion I shall allow a sum of $5000.  I think that approach is cheaper and better for everyone.  It is certain.  So I will add an order that the wife pay the husband’s solicitors a sum of $5000, costs in relation to these proceedings.

8. In relation to these proceedings such sum to be deducted from the wife’s share of the – these are the moneys held in the Holt McDonald Trust Account, aren’t they?  Sum of the Holt and McDonald Trust Account moneys referred to in paragraph 2D of the orders of 9 March 2010.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 21 January 2011.

Associate: 

Date:  21 January 2011