Egbert and Egbert

[2016] FamCA 196

FAMILY COURT OF AUSTRALIA

EGBERT & EGBERT [2016] FamCA 196

FAMILY LAW – ENFORCEMENT – application premature.
FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

Mullen v De Bry [2006] FamCA 1380; (2006) FLC 93-293; (2007) 36 Fam LR 154

APPLICANT: Mr Egbert

RESPONDENT: Ms Egbert

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2964 of 2008

DATE DELIVERED: 2 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 March 2016

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Sala

Orders

1. That paragraph 9 of the response of the wife filed 26 February 2016 is adjourned to the Judicial Duty List at 10.00am on 6 April 2016.

2. That the application in a case filed by the husband on 19 January 2016 is dismissed.

3. That paragraphs 2, 3, 4, 5, 6, 7, 8, 10 and 11 of the wife’s response filed 26 February 2016 are dismissed.

4. That the wife file and serve any further affidavit upon which she intends to rely in respect of paragraph 9 of the said response by no later than 4.00pm on 18 March 2016.

5. That the husband file and serve any affidavit material upon which he intends to rely together with a formal reply (if he is so advised) by 4.00pm on 1 April 2016.

6. That the husband pay the wife’s costs of this day fixed in the sum of $1100 such costs to be offset against the wife’s obligation to the husband on the paragraph 1 of the orders made on 19 January 2010.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Egbert & Egbert (No 2) 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 2964 of 2008

Mr Egbert

Applicant

And

Ms Egbert

Respondent

REASONS FOR JUDGMENT

1. By an application in the case filed 19 January 2016, Mr Egbert seeks a variety of orders.

2. For reasons that remain somewhat obscure, that application was not served until almost a month later.  Mr Egbert tells me that the rules provide that the document has to be served some 14 days prior to the hearing date, and whilst that may be his interpretation, the reality is that the more time a litigant has to contemplate the evidence upon which the application is based, the more likely it is that a proper response can be prepared.

3. The orders sought relate to, effectively, an enforcement of orders against Ms Egbert, to whom I shall refer in these reasons as “the wife”, and I do not use that term of either party with any disrespect.  It is simply for my convenience.  Mr Egbert refers to her as the “payer”.

4. The orders that Mr Egbert seeks are as follows:

   (1)That the total amount owing under the orders made by his Honour Cronin J on 19 January 2010 be paid in full by the payer;

   (2)That the obligation of the payer to make total payment of the amount as ordered by his Honour Cronin J on 19 January 2010 be enforced;

   (3)That the payer be prevented from disposal of property or wasting of assets;

   (4)That there be an order for costs, including the costs of enforcement and recovery.

5. By her response filed on 26 February 2016, the wife, who prepared the document herself, sought 11 orders.  She appears today via counsel, who quite sensibly and properly indicated that there were only two orders, effectively, that his client was seeking.  One is not entirely clear from the document, but having regard to what I am about to say, it is understandable, that is, that the application of Mr Egbert be dismissed.  The second is that he be declared a vexatious litigant.

6. In respect of the husband’s application, however, he simply sought that the only order to be made today was that the wife file a financial statement in accord with the rules.  The flaw in that logic is that for the reasons that follow, there is no enforceable case here which would justify running up the further costs of filing a financial statement.  Ironically, the wife’s application – and as I have noted, she is not proceeding with it, sought an enforcement of her entitlements against the husband, in which case he would have to file a financial statement.  All of that seems to me to be shadow boxing.

7. The particular orders that give rise to this application were made by me on 19 January 2010, notwithstanding the order actually says 19 December 2010. The orders provided, from a property settlement dispute, that the wife was to pay the husband $50,000. The payment of that amount, however, was then specifically referred to in the orders that followed. The first of those orders was that the payment was to be stayed “pending either agreement as to costs or an assessment as to those costs.” The next order then went on to say that the costs of the wife to be paid by the husband were to be determined according to Schedule 3 of the Family Law Rules 2004 and I then specifically set out how the registrar, if there was to be an assessment, was to approach the determination. Paragraph 4 of the orders then said that upon agreement being reached as to the costs referred to in the foregoing paragraph – or the assessment of them, the wife was to pay the husband the amount of $50,000 less any amount due to her for the costs. The proceedings were otherwise dismissed.

8. It might seem unusual that five years, if not six, has now gone by and nothing has advanced.  Somewhat of a distraction can be seen in the fact that in the intervening period, there were proceedings before Thornton J which culminated in her Honour delivering reasons and final orders.  Out of those proceedings, a further order for costs was made against the husband.

9. Unlike the proceedings before me, the costs in the case before Thornton J were assessed by Registrar Mestrovic.  Attached to the affidavit of Mr Egbert was the initial order, dated by the registrar in July 2015.  What the registrar there did was to make an order that Mr Egbert pay the wife $10,000 by a particular date, and failing the payment, she would then issue a certificate for $13,488.15.  Perhaps unsurprisingly, having regard to the history of this case, Mr Egbert did not make the payment, and as a consequence, the registrar issued a certificate on 10 August 2015 for $13,488.15.  That really has nothing to do with these proceedings at all, but it just indicates the current state of malaise.

10. The orders that I made in January 2010 required either an agreement to be reached as to costs or an assessment. Mr Egbert pointed to a letter that was written by the wife’s former lawyers in August 2010.  That particular letter, which runs to a page and a half, talks about various obligations, but then says:

    We are instructed to advise that unless you return the executed application –

    And I interpolate here it was an application relating to the transfer of a motor

    
               

    vehicle –

    To our office within seven days, we will have no alternative other than to apply to the court for an order compelling you to execute the transfer.  In the event that it is necessary to pursue an application, copies of relevant correspondence shall be produced to the court in the question of costs.

11. It is the next paragraph that is pertinent to the application before me today.  It reads:

    Subject to the application being returned to our office within seven days as from this date, out client is prepared to settle this matter on the basis of a payment to you of $29,151.19.

    The letter then goes on to set out how that particular costs sum was calculated.

12. It seems that some time thereafter, a letter was sent by Mr Egbert but it did not satisfy the lawyers, and accordingly, on any interpretation of the offer made on 5 August 2010, it lapsed.  Time ticked by.

13. In December 2015, Mr Egbert wrote to the wife’s former lawyer and he said:

    I am, however, willing to accept your offer as itemised, untaxed in your correspondence dated 5 August 2010.

14. That indeed, in legal parlance, was a new offer.  It was not an acceptance of the previous offer, even though Mr Egbert may have seen it as such, because the reality was that the offer had lapsed.  It had lapsed as I have indicated.  What seems clear is that when the letter that Mr Egbert wrote on 17 December was not responded to, he then brought the application that is now before the court.  What he said on 17 December 2015 was as follows:

    Please note that unless I receive remittance for the full amount within seven days of the date of this email, enforcement proceedings shall be commenced against your client without further notice.

15. Thus, in legal parlance, the offer that he was making was, effectively, to expire at the conclusion of the seventh day after 17 December.  It clearly did.  Thus there is a stalemate.

16. The only relevant consideration for me today is the order I made on 19 January 2010.  I stayed the payment of $50,000 pending an agreement as to the costs or an assessment.  There has clearly been no agreement and there has been no assessment.  The application, therefore, by Mr Egbert, filed on 19 January 2016, cannot succeed.  It has no basis at all until such time as either an agreement or an assessment is undertaken.

17. I mentioned the distraction a moment ago.  The distraction here would seem to be rather sad.  If, indeed, Mr Egbert was agreeing to pay $29,151.19 and he now owes Ms Egbert $13,488.15 from the Registrar Mestrovic order, it does not take much imagination to know that what is left of the $50,000 is ticking very close to $7000.  The application, therefore, of 19 January 2016 must be dismissed.

18. That then leaves alive the rest of the application of the wife.  I interpolate here also that I am dismissing the application of Mr Egbert in relation to what seems to be an injunction to prevent the wife from disposal of property or wasting assets.  On the basis of the same logic, there is no enforceable entitlement of Mr Egbert at this stage and there is nothing in the affidavit that would justify the court applying the principles set out by the Full Court in Mullen v De Bry [2006] FamCA 1380; (2006) FLC 93-293; (2007) 36 Fam LR 154.On that basis, the application cannot go anywhere.  As I’ve said, that leaves alive the wife’s response.

19. In reality, the only application that the wife now seeks is that the husband be declared a vexatious litigant.  Ms Egbert filed that application herself and counsel, quite properly, drew my attention to the fact that the evidence that supports that particular application is set out in paragraph 15 of the affidavit filed on 26 February 2016.  The husband only received this document some days ago and, after some pressing by me, he conceded that he really needed to respond to the wife’s application because he does not want to be declared a vexatious litigant.

20. Rather than simply give him an opportunity to respond to that application, I engaged in discussion with both he and counsel for the wife about what I suspect is the flaw in the evidence contained in paragraph 15. To assist the parties, I have drawn attention to not only section 102QB of the Family Law Act 1975 (Cth) (“the Act”), but also the decision of Benjamin J in Cannon & Acres. I have done that simply for the purposes of indicating that that has been an approach – and I am not necessarily saying that I agree with the approach of Benjamin J, but it is an approach.

21. Mr Egbert points to the fact that there are 27 or so visits to the Court listed by the wife. That is not a basis upon which to make a vexatious litigant order. As one reads section 102QB of the Act it will become abundantly clear what is required. It is for that reason that I had indicated that rather than have Mr Egbert simply respond to that affidavit, it might be better that the affidavit of the wife, if she intends to persist the application that Mr Egbert be declared a vexatious litigant, be put before the Court properly. Mr Sala of counsel indicates that that can be done within two weeks and I think a further two weeks thereafter or thereabouts for Mr Egbert should be ample time for him to consider the position once he reads the necessary authorities.

22. I now have an application for costs. The only costs sought by the wife are the sum of $1100. Section 117 of the Act provides that in proceedings under the Act each party shall bear their own costs unless there are circumstances that satisfy the Court that it is justifiable to depart from the principle. In contemplating whether there are justifiable circumstances, the Court is obliged to take into account the matters set out in section 117(2A) of the Act. I have already given reasons why the application of 19 January was flawed. It is to that application that the wife has responded.

23. I have endeavoured to engage in discussion with the husband as to why the wife should not be out of pocket in relation to the proceedings today in circumstances where I think counsel quite properly described the application as having been doomed to fail.  It is quite clear from the discussion that the husband understands how to manoeuvre around a system, but he seems to have a specific block in relation to the question of the assessment of costs that would have triggered the compliance by the wife of the orders of 19 January 2010.  The husband’s response is that there was no harm in him asking to have the offer considered.  He was trying to expedite the matter.  He was doing the best he could. 

24. He made genuine offers but the reality is that he did not follow the correct process and if he did get advice, it certainly was not in a form that I would have thought was sensible.  It seems to me this is a case where the costs should be ordered.  As I pointed out, costs are not a punishment.  They are intended to compensate the person who has incurred the costs of being involved in proceedings unnecessarily.  This is a clear case where the actions brought by the wife were as a result of what the husband did.  It was unnecessary for him to do what he did because what he should have applied for was an assessment of the costs.  He says that is a complicated process but he participated as a respondent before the registrar in respect of the orders of Thornton J as to costs.

25. This is a case where there is a justifiable circumstance to depart from the principle. Section 117(2A) requires the Court to contemplate the financial circumstances of the parties. I do not know what the husband’s financial position is, other than the fact that he has told me that he is employed, but it has not escaped my notice that the wife owes him money. He has done everything over a space now of six years other than formally make the application that was foreshadowed in the orders. I could not find that he is impecunious.

26. Other matters that I am required to take into account are such things as whether or not the conduct of the particular proceedings did not follow the rules. Whilst the husband points to the fact that the wife has not complied with the rules, in my view, there was really never ever prospect of his application being successful. That then leads to an obvious finding under section 117(2A) of the Act that he has been wholly unsuccessful. It seems to me that the lateness with which the application was served upon the wife has justified me separating that enforcement application out from the vexatious litigant issue.

27. On that basis, I think it is appropriate that the husband pay the wife’s costs of these proceedings. Counsel sought only the sum of $1100. Paragraph 203 of part 2 of schedule 3 of the Family Law Rules provides that the amount which is the maximum for junior counsel for a three hour hearing is $1110. Mr Sala is seeking $10 less than the scale. On that basis, it is just and equitable that the husband pay that sum.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 March 2016.

Associate: 

Date:  31 March 2016