Diplock and Diplock

[2007] FamCA 1393

FAMILY COURT OF AUSTRALIA

DIPLOCK & DIPLOCK [2007] FamCA 1393

FAMILY LAW – APPEAL – COSTS OF APPEAL – Death of husband prior to the filing of application for property settlement - Federal Magistrate ordered that the wife pay costs of the respondent’s Estate – Appeal dismissed.

Family Law Act 1975 (Cth) s 117

Federal Magistrates Court Rules r 2.05(2)

W & E [2006] FamCA 854

APPELLANT: MS DIPLOCK

RESPONDENT: MR DIPLOCK (DECEASED)

FILE NUMBER: BRC 470 of 2007

APPEAL NUMBER: NA 66 of 2007

DATE DELIVERED: 15 November 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: May J

HEARING DATE: 15 November 2007

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Morgan

SOLICITOR FOR THE APPELLANT: Mr Sharma

COUNSEL FOR THE RESPONDENT: Mr Drysdale

SOLICITOR FOR THE RESPONDENT: Mr Gleeson

Orders

1. That the appeal be dismissed.

2. That the appellant pay the respondent's costs of and incidental to the appeal to be assessed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Diplock and Diplock.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:       BRC470 of 2007
APPEAL NUMBER: NA66 of 2007

MS DIPLOCK

Appellant

And

MR DIPLOCK

Respondent

REASONS FOR JUDGMENT

1. This is an appeal filed on 5 October 2007 against paragraph 2 of the Order made on 7 September 2007 by Wilson FM where he ordered that the applicant wife pay the costs of the Estate of the respondent as and from 10 August 2007 to be taxed unless otherwise agreed.

2. On the same occasion the Federal Magistrate dismissed the application of the wife filed on 20 February 2007.

3. The reasons for judgment explain that dismissal of the application. Those reasons need to be understood to appreciate why the order for costs was made. It was argued before me this morning by Mr Sharma, the solicitor who appears for the appellant, that in some way it was unnecessary for his Honour to provide these reasons for judgment because it was always conceded that once they became aware on 13 August of the time of death of the husband, the application in this Court could not proceed.

4. The facts are very simple. In the afternoon of 16 February 2007 the solicitors for the wife attended and lodged with the Federal Magistrates Court an application for property settlement. The respondent was Mr Diplock. At that time the solicitors and the wife were unaware that at 6:00 am that day, Mr Diplock died.

5. The application was sealed by the Court on 20 February 2007 and in accordance with Rule 2.05(2) of the Federal Magistrates Court Rules, that is the date of filing.

6. For some reason, which has never been explained, the application was not served on the solicitors for the estate or the respondent's solicitors until 7 August.

7. The first knowledge the wife had of the death of her husband was the next day, 17 February 2007 when she was apparently informed by the hospital. She thought that her husband had died on the evening of 16 February.

8. The wife told her solicitors of the death, who one might think should have then realised that it might be no longer possible to continue the proceedings in the Federal Magistrates Court. In addition, the solicitors for the husband's estate wrote, on 9 August 2007, informing the wife's solicitors that as the application was filed three days after the death it should be withdrawn. In the last paragraph of that letter the solicitors invited the withdrawal of that application. 

9. The solicitors for the appellant wife then wrote back and said this:

   As regards the application for property settlement, it was lodged with the Registry on 16 February 2007.  Indeed, in our accompanying letter, we had requested an early interim hearing, and it would appear that our letter was submitted to the Registrar for consideration, and the filing date may be the date when consideration was given by the Registrar to our request. We will be seeking that 16 February 2007 be the deemed filing date. As to service on the executor, it was done on the basis that you act in relation to the estate matter, and this application is for property settlement.

10. It is accepted that the solicitors did not, even at that time, know of the time of death of the husband. In a letter dated 20 August 2007 the solicitors for the respondent and for the estate wrote and said this:

    We invited you to withdraw your Federal Court application by our open letter to you dated 9 August 2007. This was rejected by you in your letter dated 10 August 2007 where you also stated that you would be seeking a deemed date for filing as opposed to a mere mention. Due to your rejection of our invitation and your advices that you would be seeking the Court to make an order about date of filing, we then briefed Counsel. You then forwarded a facsimile transmission to our office at 11.13pm Sunday 12 August 2007 referring to the matter as being a mention and a suggested course be taken. You then made an offer by telephone to withdraw your client's application on the basis that both parties bear their own costs while you were on the train to Court. We had already briefed Counsel and it was for that reason that our client did not accept your client's offer to discontinue the proceedings on the basis that each party bear their own costs. It was for this reason that our offer was made to you that each party bear their own costs with the exception of your client being responsible for our Counsel's fees.

11. It seems that the solicitors for the wife formed the view that there was some argument that as the documents had been delivered to the Court on the day of 16 February 2007 it was possible to continue that application.

12. On 16 August 2007 the estate filed a Response seeking that the application be dismissed and asked for costs. Despite the correspondence to which I have referred and the other correspondence provided to me and referred to me by Mr Sharma, the wife through the solicitors continued to maintain the position. For the reasons contained in the judgment the application was dismissed. There is no appeal from that order.

13. The only question to which I have referred and is somewhat confusing is what the issue really was before the Federal Magistrate. The Federal Magistrate was provided with submissions from counsel, Mr Morgan, in relation to the matter before him and the first submission is dated 22 August 2007. It does seem to be largely focused on the question of costs and as Mr Sharma correctly said, reference was made to paragraph 12 where it was said:

    It is conceded that proceedings need to be on foot at the time of death if they are to continue against the personal representatives.

14. However, it is all somewhat confusing because many other pages of this submission appear to argue the question of whether the Court had some power to deem that the application had been filed on 16 February 2007 and a subsequent submission which may well have been as a result of a request from the Federal Magistrate seems to continue to argue the matter. 

15. In any event I am only concerned with the reasons for costs given by the Federal Magistrate. In paragraph 12 of his judgment he said this:

    At general law, the court has a discretion as to the award of costs. In the present case the solicitor for the executors of the respondent's estate wrote to the solicitors for the applicant on 9 August 2007, two days after being served with the initiating application and supporting documents and invited the applicant to withdraw her proceedings. The applicant's solicitor, and the applicant herself, did not know of the time of the respondent's death until the matter came before the court on 13 August 2007. It was argued in those circumstances that the applicant should not have to pay the costs of the executors prior to that day.

16. So it is quite apparent from what his Honour said that all the matters placed before me this morning by Mr Sharma were entirely understood by his Honour. He then went on to say this:

    However, in my view the proceedings should have been discontinued on receipt of the letter from the executor's solicitor. I have concluded that the proceedings were not filed until 20 February 2007, and that such defect cannot be saved. Had the proceedings been discontinued by the applicant when the fact of late filing was drawn to their attention, the executors would not have incurred any significant legal costs. 

17. His Honour then ordered that the wife pay the costs of the estate from 10 August 2007, being the day after the letter was written by the solicitors, and left it to the taxing officer to decide about counsel’s fees.

18. The other matter of some significance that has taken place in these difficulties was that the solicitors for the appellant wife filed an application in the Supreme Court of Queensland under the Family Provision legislation on 30 March 2007.  It is somewhat difficult to understand how those two proceedings could have continued. In any event, that seems to now be the course of litigation.

19. I have lengthy submissions by the appellant and I have heard further from Mr Sharma this morning. The appellant's submissions filed on 13 November 2007, continue to deal with the question about the circumstances of this material being filed and are somewhat argumentative, as are the subsequent submissions called supplementary submissions that were filed, two of them filed yesterday.  However, it is argued that the order for costs ought not to have been made.

20. It is not immediately apparent from these submissions how it is said that there was some error in the Federal Magistrate's exercise of his discretion other than the assertion to which I have already referred that because the time of death was not known until 13 August, an order for costs ought not to have been made. As I said that was a matter that was entirely taken into account by the Federal Magistrate.

21. The provisions in relation to costs and the circumstances in which an order can be made for costs are well understood. The legislation provides clearly that there must be circumstances that justify an order for costs and clearly the Federal Magistrate had those matters in mind.

22. Mr Drysdale generously refers to W & E [2006] FamCA 854, a judgment of mine recently given. It is perhaps not necessary to refer at any great length to the provisions of s 117 or some of the very well known cases other than to say first that this is an appeal from a discretionary judgment and it is necessary for an appeal to be successful to demonstrate that the Judge was plainly wrong, that his decision was no proper exercise of his discretion.

23. In matters such as this where there is an appeal against an order for costs, the principles are quite clear that there is a very wide discretion to make an order for costs.  In this case there can be no doubt that the Federal Magistrate provided substantial reasons for his order for costs and it cannot be said that the reasons he gave were erroneous or that the order he made was not within his discretion and I would dismiss the appeal.

24. At the conclusion of this appeal an application was made on behalf of the respondent for the costs of the appeal. In my view an order for costs should be made. I appreciate that the appellant's circumstances are that she is dependent on Centrelink and may financially be in relatively poor circumstances, however, this is an appeal, it was an appeal against a discretionary judgment and I would have to say that there were very few merits of the appeal and consequently an order should be made for costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May

Associate: 

Date:  15 November 2007