Dowling and Dowling and Ors

[2011] FamCA 868

FAMILY COURT OF AUSTRALIA

DOWLING & DOWLING AND ORS [2011] FamCA 868

FAMILY LAW – Adjournment – Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Dowling

FIRST RESPONDENT: Ms Dowling

SECOND RESPONDENT: Ms B

THIRD RESPONDENT: C Pty Ltd

FOURTH RESPONDENT: Ms C

FILE NUMBER: MLC 3686 of 2011

DATE DELIVERED: 8 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Vohra

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Strum

SOLICITOR FOR THE RESPONDENT: Coulter Roache

COUNSEL FOR THE INTERVENOR: Mr Wilson

SOLICITOR FOR THE INTERVENOR: Stephen Farmer & Associates

Orders

1. That all outstanding applications are adjourned to 16 December 2011 at 10.00 a.m. for a potential half day hearing.

2. That the subpoena addressed to Mr D filed 21 October 2011 is struck out.

3. That the husband file and serve any further material upon which he intends to rely by 11 November 2011 at 4.00 p.m.

4. That the wife file and serve any material upon which she intends to rely by 4.00 p.m. on 9 December 2011.

5. That the second and fourth respondents to the proceedings are discharged.

6. That the third named respondent file and serve any material upon which it intends to rely by 4.00 p.m. on 9 December 2011.

7. That the wife’s costs of the day are fixed in the sum of $3,700 ad the second, third and fourth respondents’ costs are fixed as a total of $3,700 and such sum be paid by the husband within 60 days.

IT IS NOTED that publication of this judgment under the pseudonym Dowling & Dowling 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 MELBOURNE

FILE NUMBER: MLC 3686 of 2011

Mr Dowling

Applicant

And

Ms Dowling

First Respondent

And

Ms B

Second Respondent

And

C Pty Ltd

Third Respondent

And

Ms C

Fourth Respondent

REASONS FOR JUDGMENT

1. On 31 October 2011, I heard argument in relation to substantive proceedings between the husband and the wife and three other respondents who had been joined by the husband’s Application.  I made orders of a procedural nature effectively adjourning all substantive proceedings to 16 December 2011 and then heard the Applications for costs of the wife who is the First Respondent and the Second, Third and Fourth Respondents.  I indicated at the time that I would make an order for costs and later give reasons.  These are those reasons.

2. These proceedings were begun by the husband.  He sought an order that the court declare that a particular property be owned by the wife.  He also sought orders against the Third named Respondent, a company, in terms that amounted to a refund by that Respondent of “contributions” made by him to its land.  The Second and Fourth Respondents are the directors of the Third Respondent company.

3. The matter came before Registrar Marrone who made an order that the proceedings be transferred to me in the Judicial Duty List to determine the management of an issue as to “jurisdiction”.  That order was made in September.  Between September and when I heard the matter on 31 October 2011, no further action had been taken by the husband.

4. Counsel for the husband said that no action had been taken because he was waiting to see what directions should be given.  However, the husband also filed a subpoena against solicitors who had acted for some of the respondents seeking details about the setting up of a trust.  Those recipients of the subpoena objected on the grounds of privilege.

5. Ultimately, I struck out the subpoena on the basis that I could not see the relevance at this point in time and I was not prepared to allow the husband to engage in a fishing expedition. 

6. I was critical of the husband for not having taken any steps between September and the hearing such as would enable me to ascertain exactly what claim he was making against the respondents.

7. The nub of the dispute in this case appears to be that the wife’s mother created a trust of which the wife is the trustee and the settled property is a piece of farming land.  The husband’s position seemed to be that he did not know whether the trust was in fact genuine or whether in fact it was the property of the wife in any event.  In addition, the wife’s sister had property transferred to her presumably in a similar capacity and the husband joined both properties together for business purposes and conducted a farm upon which substantial work was done.  The husband’s evidence was that he was told by the wife to treat the property as their own and he always understood that it was theirs.  He went further and said that he borrowed money and guaranteed the loan.  The details of that loan and the circumstances under which it was given were the subject of a subpoena to the lending bank and that had not been inspected so the husband was really unable to say at the hearing on 31 October 2011 just what sort of case he was conducting. 

8. In discussions with Counsel for the husband, it was conceded that a claim in more substantive form was necessary and to that extent, she told me that the wheels had already been put in motion to draw the necessary Statements of Claim.  It was then pointed out that the claim would be pursued by the husband on an accrued jurisdictional basis. 

9. Counsel for the husband said that if any costs application was made, the costs should simply be fixed and reserved.  Counsel for the wife said that the husband had done nothing since the hearing before the Registrar in September such as would enable the court to make directions about the future management.  Counsel for the three other respondents submitted that two of them should not have been joined in any event because they were simply directors of the other parties.  Counsel for the respondents otherwise joined in the submissions of the wife.

10. Section 117 of the Family Law Act provides that each party shall bear their own costs unless there are circumstances that justify a departure from that principle. If the court is contemplating such a departure, the court must take into account the matters set out in section 117(2A) of the Act.

11. In this case there is a justifying circumstance for making an order because the hearing before me was basically wasted.  Counsel for the husband valiantly tried to explain the way in which his case would be conducted in the future but the documentation which would have enabled me to make orders about joinder of parties, directions for trial and valuations let alone discovery could not be made until such time as that was clear.  There was an affidavit filed by one of the named respondents which simplistically said that she did not know why she had been joined.  With that sentiment unfortunately, I have to agree.

12. There can be no doubt that if the husband was through his lawyers in the process of redrawing the claim appropriately, it must be obvious that everyone was aware that it needed to be done and should have been done during the period of time prior to the hearing.  As such, I am satisfied that the day of 31 October was wasted.

13. Whilst the Registrar indicated that the matter was being transferred to me for the purposes of the jurisdictional argument, that argument could not take place without the pleadings being clear.  They were not.

14. Turning to section 117(2A), it will be evident from the size of the arguments between the parties that none of them is impecunious. There are no legal aid considerations involved. There has been no order requiring the filing of material but on the basis of the discussion that all of the lawyers had before the Registrar, it must have been evident what the dispute was about and that it required the husband to clearly articulate his position. The other important point to remember in this case is that the respondents had made clear that they wanted to know what the husband’s position was and that they were objecting to him taking a fishing expedition approach by the subpoena that had been issued to the solicitors who had been involved in the trust arrangements. All of that in my view justifies an order for costs having regard to the fact that the parties had thrown away costs for the day.

15. Costs of $3,700 were sought by the wife and a total of $3,700 for the respondents and it is appropriate in the circumstances that the husband pay those within sixty days.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 November 2011.

Associate: 

Date:  8 November 2011