Dudek and Dudek and Ors

[2016] FamCA 31

FAMILY COURT OF AUSTRALIA

DUDEK & DUDEK AND ORS [2016] FamCA 31

FAMILY LAW – Non-compliance with trial directions.

Family Law Act 1975 (Cth)

APPLICANT: Ms Dudek

RESPONDENT: Mr Dudek

OTHER PARTIES: Mr B and Ms C and Ms D Dudek

FILE NUMBER: MLC 10124 of 2013

DATE DELIVERED: 22 January 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ventura

SOLICITOR FOR THE APPLICANT: Belleli King & Associates

COUNSEL FOR THE RESPONDENT: Mr MacDonald

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers Pty Ltd

COUNSEL FOR THE OTHER PARTIES: Mr MacDonald

SOLICITOR FOR THE OTHER PARTIES: Mills Oakley Lawyers Pty Ltd

Mr Moisidis

Verducci Lawyers

Orders

1. In respect of the orders made on 15 December 2015, the following extensions as to the times therein are as follows:

   (a)   Paragraphs 3 and 4 are extended to 4.00pm on 25 January 2016;

   (b)  Paragraph 5 is extended to 26 February 2016;

   (c)  Paragraph 6 is extended to 3 March 2016;

   (d)  Paragraph 7 is extended to 26 February 2016.

2. That the applicant wife pay the husband’s costs fixed in the sum of $500 and the other respondent’s costs of $900 and there be a stay of payment for 14 days from this date in respect of both of those payments.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dudek & Dudek 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 10124 of 2013

Ms Dudek

Applicant

And

Mr Dudek

Respondent

And

Mr B and Ms C and Ms D Dudek
Other Parties

REASONS FOR JUDGMENT

1. This case was brought on at the request of the Court having been listed for trial on 7 March 2016 subject to any part-heard case that day.  The order that gave rise to that fixing was made by me on 15 December 2015 after considerable discussion between the various lawyers for the parties.  The applicant has failed to comply with the order to file her amended application.  I appreciate very much that between 15 December and now, Christmas has intervened, and lawyers, like most sensible people in the community, have something of a rest, but I suspect that was actually an issue that I raised with the parties on 15 December to be assured that things would be on track.

2. The applicant says she can file the amended application by next Monday.  If, indeed, the hearing had not been brought on and the document had simply been filed, it would have been a nullity in any event.  Leave must be sought either from the court or consensus from the parties, and that clearly has not happened here.  It is fortuitous that in the course of discussion, it has become abundantly clear that this is a complicated argument in the property case.  The property here seems to be extremely limited.  A costs application is made by the husband, but also the third parties who have been brought here because the applicant did not comply with an order that was only made five weeks ago.

3. To some extent, they have been prejudiced because they are still in the dark as to exactly what the applicant is seeking, but perhaps it has been fortuitous for them that they may have learnt a little bit about the case as a result of the discussion we have just had. 

4. Section 117 of the Act provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify departure from that principle.  If those circumstances have arisen, then the Court is obliged, before making any order, to look at the matters in section 117(2A) of the Act.

5. The Court ought to depart from the principle that each party pays their own costs where there has been non-compliance with a court order in respect of the filing of a document so soon after the order for the timetable is made, and in circumstances where the details are, at least at this stage, indicating that there is a very limited pool of assets.  None of these parties seems to have any significant amount of funds. 

6. Therefore, bringing in the respondent husband and the third parties even at the Court’s request has put them to expense unnecessarily because of the conduct of the applicant or the applicant’s lawyers.  The respondents are all out of pocket and that justifies an order for costs being made.  The question then remains as to what I should do about the matters in section 117(2A).  None of the parties here seems to have significant money.  The solicitor for the applicant says that she is a single parent living with her parents, and hopeful of getting some money out of this particular property case.

7. The husband, for his part, is unemployed, and I can conclude, therefore, that his financial circumstances are fairly limited as well.  Counsel for the other respondents indicates they are pensioners, although one of them is working, at least.  The application for costs needs to take into account the way in which the parties have conducted themselves in respect of court orders and the obligations thereunder. 

8. As I have already indicated, the applicant wife has failed to comply.  There are no Legal Aid considerations here.  The respondents have all been brought in unnecessarily because of the conduct of the applicant.  This is a case that justifies an order for costs. 

9. The husband seeks costs of one hour, and that is at his costs agreement rate.  That issue is not in dispute from the wife’s point of view.  The other respondents had arranged to brief counsel today, and the scale there is between $237 and $1110, and the instructing solicitor would be seeking two hours at the scale rate, which would amount to $460.  It is very difficult to know with any precision what all of that means, because much of it is guess work and the discretion is extremely wide.  I propose to make an order for $500 in the case of the wife and $900 for the others.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 January 2016.

Associate: 

Date:  1 February 2016