Egbert and Egbert

[2018] FamCA 634

FAMILY COURT OF AUSTRALIA

EGBERT & EGBERT [2018] FamCA 634

FAMILY LAW – PRACTICE AND PROCEDURE – application to review a Registrar’s order out of time – where the husband’s application is approximately two-and-a-half years out of time – where the husband provides no reasonable explanation for his delay in bringing the application for review – application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 1.14, 18.05, 18.06, 18.08, 19.28

Gallo v Dawson (1990) 93 ALR 479
Tormsen & Tormsen (1993) FLC 92-392

APPLICANT: Mr Egbert

RESPONDENT: Ms Egbert

FILE NUMBER: MLC 2964 of 2008

DATE DELIVERED: 22 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 March 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No Appearance

Orders

1. The Application in a Case filed 13 February 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Egbert & Egbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2964 of 2008

Mr Egbert

Applicant

And

Ms Egbert

Respondent

REASONS FOR JUDGMENT

1. By Application in a Case filed 13 February 2018 the husband sought the following orders:

   1.That the Respondent [Ms Egbert] be Ordered to Supply the Contact Details of the Costing Lawyer who prepared the Itemised Cost Account dated 5 May 2015

   2.That I seek leave of the Court to Apply for an Out of Time Application

   3.That the Court Order a Review of the Orders made on 22 July 2015 by Registrar Mestrovic      

   4. That the Court take such necessary Action, Refer all such matters to the correct Authority and made [sic] all such Orders as it deems fit in relation to the Respondent [Ms Egbert] and Counsel [Mr T] to uphold the Legal Profession and to pervert them from Perverting the Course of Justice

   5. That the Respondent [Ms Egbert] Pay All Costs associated with this Application

2. That application was listed before me in a Judicial Duty List.  The issue pressed by the husband at that hearing was his application to review the consent orders of Registrar Mestrovic made on 22 July 2015.

3. The husband filed his application approximately two-and-a-half years after the time prescribed in the Family Law Rules 2004 (Cth) (“the Rules”). Therefore, before considering the merits of that application, I must first determine whether the husband should have leave to proceed with his application to review the orders out of time.

4. These are my Reasons for Judgment in respect of the husband’s application for leave to proceed out of time.

Material relied upon

1. The husband relied upon his Application in a Case and Affidavit filed 13 February 2018.

2. The wife filed no material in response to that Application.

Background

1. On 2 December 2014 Thornton J made final parenting orders and at order 10 made the following costs order:

   The [husband] pay all costs associated with this hearing incurred by the mother on a party/party basis on scale.  The amount is to be agreed between the mother and father within 28 days.

2. On 22 July 2015 a settlement conference was convened by Registrar Mestrovic pursuant to r 19.28 of the Rules to consider the wife’s Itemised Costs Account. The issue as to the quantification of the wife’s costs was resolved that day and orders were made by consent by Registrar Mestrovic (the Orders) which provide as follows:

   1. That on or before 5 August 2015 the Respondent [MR EGBERT] (hereinafter referred to as [MR EGBERT]) pay to the Applicant [MS EGBERT] (hereinafter referred to as [MS EGBERT]) by way of a bank cheque the sum of $10,000 in full and final satisfaction of all legal fees to which [MS EGBERT] is entitled to pursuant to paragraph 10 of the orders of Justice Thornton made on 2 December 2014

   2.That if the said amount is not received by [MS EGBERT] by closing of the business day on 5 August 2015 the costs registrar will issue a Costs Certificate in [MS EGBERT]’S favour against [MR EGBERT] in the sum of $13,488.15 being the amount which is certified by the costs registrar as due and payable by [MR EGBERT] to [MS EGBERT] representing 4 days of counsel’s fees at trial of $11,000, fee of $ 1,816.68 on hearing judgment, solicitors fees of $ 346.17 @ one and a half hours and the sum of $325.32 for drawing, engrossing and copying costs account

   (emphasis in original)

3. The notations to the Orders provide:

   (a) The costs account on [the wife’s] behalf was drawn encompassing the whole of the proceedings and she was advised that the reading of the order of Justice Thornton implied the costs of this hearing being the trial and subsequent implementation of the costs order. An opportunity was afforded to refer the matter to Her Honour for clarification but was declined.

   (b) [The husband] did not file a formal Notice of Disputing Cost Account however did serve same upon [the wife] on the basis that he interpreted the Rules in a particular way. A copy of this Notice was accepted on the day and will appear on the court record as having been filed this day. [The wife] acknowledged having received same.

4. The husband concedes that he did not pay the $10,000 to the wife pursuant to paragraph 1 of the Orders and that a Costs Certificate was issued against him in the sum of $13,488.15. The husband deposed in his affidavit that on 14 December 2015 he received a letter of demand for the sum of $13,488.15 from the wife’s solicitors.  Seemingly, there has been no action taken by the wife to recover those costs since that time.

5. The husband filed his Application in a Case seeking to review the Orders on 13 February 2018. The wife filed no material in response.

6. The matter was heard by me on 13 March 2018 and the husband appeared in person. The respondent wife did not appear. The wife was called by my Court Officer in the Court precincts at approximately 11:00am. There was no response to that call.

7. The husband relied upon an Affidavit of Service filed 22 February 2018 in which he deposed that he had served his Affidavit and Application in a Case on the wife by Registered Post to an address in Suburb U and by email. Annexed to that affidavit is the Registered Lodgement Receipt dated 20 February 2018 and his email to the wife dated 21 February 2018.

8. The husband also relied upon a further Affidavit of Service filed on 5 March 2018 in which he deposed that he had served his Application in a Case and Affidavit by post on the wife at the same address in Suburb U. Annexed to that affidavit, marked as Exhibit A, is a Proof of Delivery Receipt which the husband identifies as bearing the signature of the wife, it being a signature he has seen on previous occasions. 

9. Having regard to those affidavits of service I am satisfied that the wife had notice of the husband’s application and was afforded procedural fairness.  Given those findings, I determined that the husband should be permitted to proceed with his application in the wife’s absence.

Legal principles

1. Rules 18.05 and 18.06 of the Rules identify the powers of the Court which are delegated to Registrars and Deputy Registrars. Table 18.5 of r 18.06 of the Rules identifies the powers under the Rules which are delegated to Deputy Registrars. Item 11 of Table 18.5 provides that the power under Part 10.4 of the Rules is delegated to a Deputy Registrar; that is the power to make an order by consent.

2. The Orders made by Registrar Mestrovic were consent orders.

3. The review of the exercise of a delegated power by a Deputy Registrar is made by way of hearing de novo.

4. Rule 18.08 of the Rules provides that a party may apply for a review of an order mentioned in an item in Table 18.6.

5. Item 4 in Table 18.6 of r 18.08 of the Rules confirms that the time within which an application must be made for the review of a Deputy Registrar’s decision exercising a power delegated under r 18.06 of the Rules is seven days after the Deputy Registrar made the order.

6. Therefore, in accordance with r 18.08 of the Rules the husband’s application for review of the orders should have been filed by 29 July 2015, that is, within 7 days of the making of the Orders.

7. In discussion with the husband during the course of the hearing he submitted that he had 28 days within which to file his review application.  Even if his view is correct, which I do not accept, his application was filed almost two-and-a-half years out of time.

8. In the circumstances, it is necessary to determine whether the husband should have leave to proceed with his application out of time.

9. Rule 1.14 of the Rules provides:-

   (1)A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.

   (2)A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.

   (3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.

10. Neither the Family Law Act 1975 (Cth) nor the Rules provide guidance as to the exercise of the discretion conferred by r 1.14 of the Rules.

11. In Gallo v Dawson (1990) 93 ALR 479 McHugh J said at page 480:-

    …The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties if the grant or refusal of the application for extension of time: see Avery v Number 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Griggs [1967] VR 87 at 872; Hughes at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, on the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

12. The Full Court considered an application for extension of time involving an appeal in the decision of Tormsen & Tormsen (1993) FLC 92-392. At page 80,017 the Full Court held:-

    …The fundamental issue in application for extension of periods of time prescribed by rules of court is whether this will enable the court to do justice between the parties: Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262 per McInerney J cited with approval in Gallo v Dawson (1990) 93 ALR 479 at 480 per McHugh J. In that connection the court must weigh the right which the respondent to the application prima facie has to obtain the benefit of the judgment: Vilenius v Heinegar (1962) 36 ALJR 200 at 201, and the desirability that there be finality of litigation: Ratnam v Cumarasamy [1964] 3 All ER 933 at 935. A failure to explain the delay adequately can certainly lead to a conclusion that justice demands that the application be dismissed: Shepperdson v Lewis [1966] VR 418 at 421, 422 per O’Bryan J. But in appropriate cases the interests of justice may outweigh the absence of an adequate explanation…

Should the husband have leave to proceed out of time?

1. The husband does not explain his delay in filing his application in the affidavit filed by him in support of his Application in a Case. 

2. That affidavit largely addresses the substantive complaint made by him in respect of the Orders.  The essence of the husband’s complaint is that the account for counsel briefed to appear for the wife at the final hearing before Thornton J has not been paid.  Further, the husband challenges the accuracy of fees charged, alleging that Counsel charged fees for work not actually performed.  Accordingly, it is submitted by the husband that there was no basis for an order for costs in the amount of the Costs Certificate. 

3. The husband deposes that while he agreed to the Orders something left him “uneasy about the Costs claimed in the Itemised Costs Account”. He described that at that time he did not have “the required evidence that the Account had not been paid by the Respondent”. He went on to depose at paragraph 5:

   …I attempted to express my concerns with Registrar Mestrovic however she exerted her authority to either accept the Consent Agreement or she would immediately enforce the higher amount.

4. During his oral submissions the husband asserted the reason for the delay in bringing his application is that he was not in a position to dispute the Itemised Costs Account.  He alleges that he is unable to prepare his case as he does not have the details of the costing lawyer engaged by the wife. At paragraph 23 of his affidavit the husband deposes that on 19 December 2017 he wrote an email to the wife requesting the contact details of the costing lawyer who prepared the Itemised Costs account dated 5 May 2015.  The husband provides no explanation as to why it is necessary to have the contact details for the costing lawyer in order to prove his claims with respect to fees charged by the wife’s counsel. 

5. I do not accept the husband’s submissions regarding the wife’s costing lawyer given that the notation to the Orders clearly states that the husband did serve and rely upon his Notice of Disputing Cost Account dated 19 June 2015 on the day of the settlement conference. 

6. Further, the husband’s submission does not address the more than two year delay between the date of the Orders and the husband’s letter to the wife seeking the cost consultant’s details.

7. The matters now sought to be challenged by the husband in relation to counsel’s appearances were matters known to the husband at the time of the settlement conference.  Moreover, it is clear from order 2 of the Orders that the amount ordered to be paid by him did not include the appearances of Counsel which the husband seeks to challenge.  The husband complains that fees claimed by the wife’s counsel for appearances on 7 June 2013, 20 November 2013 and 11 March 2014 were fees to which counsel was not entitled as he did not appear in the proceedings on those dates.  However, that submission ignores the fact that the Orders relate only to counsel’s appearance fees for the four days of the trial and the appearance for receipt of the judgment; the husband does not contend that the wife’s counsel did not appear on those occasions. The wife was not awarded costs in respect of the contentious dates about which the husband complains.  On the face of the Orders, the husband has already succeeded in respect of those arguments.

8. It was also submitted by the husband that he delayed in filing his application as he was awaiting the outcome of complaints made by him against the wife’s counsel to the Victorian Legal Services Board and Commissioner (“VLSBC”) and the Victorian Bar.   The husband alleges that the wife’s counsel acted fraudulently in relation to fees billed to the wife.  In response to the husband’s complaints, the wife’s counsel denied that allegation and the wife swore an affidavit on 20 December 2016 in support of her counsel.

9. The husband’s complaint against the wife’s counsel was filed with VLSBC in August 2016.  That complaint was referred to the Victorian Bar in or around April 2017.

10. It was submitted by the husband that the Victorian Bar completed its investigation into the conduct of the wife’s counsel in August 2017.  No action has been taken by either VLSBC or the Victorian Bar in relation to the husband’s complaints with respect to the conduct of the wife’s counsel.

11. The husband did not file his application in this Court for a further period of six months after the conclusion of those inquiries.  He provides no explanation for the delay between the conclusion of those investigations and filing the current application.

12. The principal issue in this matter is whether an extension of time as prescribed by the Rules will enable the Court to do justice between the parties. In determining that matter the Court must consider the entitlement of the wife to attain the benefit of orders made in May 2015, some three years ago. The question for the Court is whether the strict application of the Rules of court with respect to time for filing the application will visit an injustice upon the husband. In my view, the answer to that question is no.

13. In determining the matter, I have regard to the fact that the original costs order of Thornton J was made in December 2014, almost three-and-a-half years ago.  The Orders sought to be reviewed were made three years ago.

14. It is evident from the husband’s affidavit that the focus of his grievance in respect of the costs ordered to be paid relates to fees rendered by the wife’s counsel.  Those fees are set out at Items 2 to 11, 15, 21 to 24 inclusive of the Itemised Costs Account dated 5 May 2015.  The total amount of costs and disbursements claimed in that account is $22,722.29, including counsel’s fees.

15. As noted earlier, the husband served and relied upon a Notice Disputing Itemised Costs at the settlement conference.  He challenged counsel’s fees in that document.  Ultimately the issues between the parties with respect to costs were settled on the basis that the husband pay to the wife the sum of $10,000 by 5 August 2015, failing which a Costs Certificate would issue in the sum of $13,488.15.

16. The husband now seeks to challenge the assessed costs some two-and-a-half years after consenting to orders to pay those costs.  I note that the amount originally claimed by the wife was substantially greater than the amount the husband was ordered to pay.  The husband makes his application having pursued complaints with VLSBC and the Victorian Bar in respect of the wife’s counsel which have been concluded without action.  I also note his evidence as contained in his affidavit that the husband has attempted to pursue those complaints through Victoria Police. 

17. Having regard to the history of the husband’s pursuit of these matters, I am not satisfied that it is in the interests of justice to grant an extension of time to enable him to now review orders made more than two-and-a-half years ago.  The proceedings have a long litigation history before the Court.  Final orders were made at the conclusion of a four day hearing before Justice Thornton in December 2014. 

18. In circumstances where it is clear that the husband was on notice as to the claimed fees in respect of counsel, that he responded to those claims at the time of the hearing and ultimately resolved the issues between he and the wife by consent at that hearing, to now claim some two-and-a-half years later an entitlement to review that decision is in my view contrary to the interests of justice.  The wife is entitled to have an end to these proceedings.  The husband provides no reasonable explanation for his delay in bringing the application for review; that he sought to pursue other avenues of complaint in my view is not a justification for his delay in bringing this application.

1. Further, I am not satisfied based on the material relied upon by the husband that there is any merit in the application to review the orders.  The wife seemingly takes no issue with the fees charged by her counsel.  Indeed the husband’s evidence is that she swore an affidavit in support of that member of counsel in response to the husband’s complaint. 

2. Having determined that the husband should not have leave to review the Orders out of time, in my view there is no basis for an order in the terms of paragraph 1 of the husband’s application.  Further, there is no admissible evidence to support the making of orders as sought by the husband at paragraph 4 of his application.  The husband also seeks an order for costs.  Given that I have determined that the husband’s  applications be dismissed, I am satisfied that there are no circumstances that justify an order as to costs as sought by the husband at paragraph 4 of his application.

3. Having regard to all of those matters, I will dismiss the husband’s Application in a Case.

THE ORDERS

(1)The Application in a Case filed 13 February 2018 be dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 August 2018

Associate:  Alison Power

Date:  22 August 2018