Dent and Melville

[2009] FamCA 488

FAMILY COURT OF AUSTRALIA

DENT & MELVILLE [2009] FamCA 488

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

Family Law Act 1975 (Cth)

Sali v SPC Ltd and Another (1993) 116 ALR 625

APPLICANT: Mr Dent

RESPONDENT: Ms Melville

FILE NUMBER: MLF 3157 of 2006

DATE DELIVERED: 1 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M.L. Smallwood

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr A.G. Robinson

SOLICITOR FOR THE RESPONDENT: Marshalls & Dent

Orders

1. That the application of the husband filed 20 May 2009 and the response of the wife thereto filed 28 May 2009 be adjourned to 9.00am on 10 July 2009 before me.

2. That the husband pay the wife’s costs fixed in the sum of $2100 within one month of this date.

3. That the reasons for judgment this day be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3157 of 2006

MR DENT

Applicant

And

MS MELVILLE

Respondent

REASONS FOR JUDGMENT

1. In this matter I propose to accede to the husband's application and grant him the adjournment. 

2. On 23 April this year I made orders in the absence of the husband, although the reasons for so doing were not anything I would have thought that could have taken anybody by surprise.  On 20 May this year the husband applied to abridge all times necessary to hold an urgent hearing, to seek to stay my orders pending an appeal.  The husband filed an affidavit of his solicitor upon which he sought to rely in respect of the stay.  The case has now taken something of an unusual turn because the husband now wants to adjourn his own application because, as his counsel says, the lawyers are unable to properly obtain instructions to argue the stay itself. 

3. By her response filed on 28 May the wife filed a document opposing the stay, and in support of that application she filed an affidavit.  The husband's first affidavit material is really about the stay, but there is a second affidavit which I have granted leave to file today from his solicitor which addresses that in much more detail.

4. Turning to the question of the adjournment, counsel for the husband argued that an adjournment was necessary to discuss the prospects of the success of the stay application with his lawyers.  My response to that is that he could do that at any time.  Secondly, she said that the husband had not seen the wife's material filed on 28 May, but there is not much merit in that argument either because he must have known what the wife's response would be to the stay application.  Thirdly, she says that the husband is prejudiced by being forced to proceed with his application for the stay because it is effectively a once-only application. My response to that is that he could have withdrawn the application, but having regard to what I have been told I have inferred that the solicitors could not obtain instructions to withdraw the application in any event.

5. Fourthly, counsel for the husband has indicated that the lawyers just need a short adjournment. 

6. In reply, counsel for the wife has indicated that this is typical of the husband, that he, to use the expression of counsel, "dips his toe in the water and then walks away".  Secondly, the husband was always aware of the wife's position but has given reasons in various correspondence, including the unavailability of counsel, and then more or less turning the argument into an accusation by the husband that the wife has not provided details about the implementation of the orders I have made.

7. All of those matters are matters that I have taken into account. 

8. In Sali v SPC Ltd and Another (1993) 116 ALR 625 the High Court said that the court was entitled to consider the impact upon the court's resources as well as other litigants in any application for an adjournment. Because of the way that the court has in this case listed the hearing, that is really not an issue. I say that because, as most people know, I conduct these hearings at 9 o'clock in the morning before starting trials at 10 o'clock. To that extent I am putting all parties, and in particular the husband, on notice that insofar as I am granting the adjournment today the matter will be dealt with very briefly on submissions and at 9 o'clock in the morning on a date that I will come to.

9. In effect, and perhaps somewhat surprisingly, what the husband is seeking is an indulgence.  It is in fact, ironically, the husband who started the stay application process.  To seek an indulgence, the determination exercise is a discretionary one in which a number of considerations need to be balanced.  For example, is there a justiciable issue to be tried?  Has some oversight occurred which has been adequately explained, such as an unexpected event?  Could a short adjournment accompanied by an order for costs rebalance the injustice to the party who is ready to proceed today, including, and importantly in this case, the impact upon a litigant who has come along expecting the end of the litigation?  Against those sorts of considerations there is obviously the inconvenience to the litigants and to the court. 

10. Ultimately those are balancing factors requiring in the end that justice be done to both parties.  In my view, the prejudice to the husband in being forced to proceed today, particularly having regard to the fact that his lawyers do not have proper instructions, may outweigh the prejudice to the wife in not being able to finalise the matter.  That is particularly so in this case, where the wife faces an appeal later in this year in any event.  In other words, this is not entirely like a normal application where one would have expected the fruits of the litigation to be brought to an end today. 

11. In my view, balancing all those factors, it is in the interests of both parties, but in particular the husband, to have an opportunity to have his application, which as I said, is a once-only application, properly heard.  On that basis, I propose to grant the husband's application.

12. This is an application for the wife for costs arising out the fact that I have granted the husband's application for an adjournment of the stay proceedings that he sought in respect of the appeal against the orders that I made in April. Costs pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”) are discretionary, but in any event, the fundamental principle is that each party is to bear their own costs. The circumstances under which the court can depart from that situation is where it feels justified in the circumstances in so doing. If it does depart from that rule then it must contemplate the matters set out in s 117(2A) of the Act.

13. This is a case in which the husband started the proceedings by seeking a stay of the orders and then changed that because his lawyers could not get adequate instructions from him.  As such he, as I have indicated, seeks an indulgence.  That in itself justifies a departure from the rule.  Factoring in all of the matters that I know about the background of the financial circumstances of the wife, and knowing very little about the circumstances of the husband, I am still satisfied that the financial circumstances of the husband justify an order for costs.  The husband has been successful in the sense that he has pursued and obtained an order for an adjournment, but it has come at the cost of the wife having to be at least be prepared on the basis that if he was unsuccessful, the matter would have had to have proceeded.  On that basis, I think it is appropriate that an order for costs be made. 

14. The quantum of those costs is a discretionary issue.  The wife seeks an order for costs of $3985, made up of $1200 for the solicitor and $2750 for counsel.  Both of those figures are in fact over and above the scale.  In my view, in the exercise of my discretion I propose to grant an all-in figure of $2100. 

15. I will make a stay of one month for that order.  I will also make an order that my reasons be transcribed.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  9 June 2009