Egbert & Egbert (No 2)

[2018] FamCA 933

FAMILY COURT OF AUSTRALIA

EGBERT & EGBERT (NO. 2) [2018] FamCA 933

FAMILY LAW – PRACTICE AND PROCEDURE – Application to review a registrar’s decision out of time – where the same issue has already been determined – res judicata – application dismissed.

FAMILY LAW – COSTS – Where the husband makes an application for costs – where the husband is wholly unsuccessful – no order for costs made.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 1.14, 7.18

InThe Marriage of Caska (2002) FLC 93-092

APPLICANT: Mr Egbert

RESPONDENT: Ms Egbert

FILE NUMBER: MLC 2964 of 2008

DATE DELIVERED: 19 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 5 September 2018

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: No Appearance

Orders

1. That the Application in a Case filed 25 July 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 (No. 2) 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 25 July 2018 the applicant husband seeks 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 date 5 May 2015

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

   3.That the Order of 22 July 2015 made by Registrar Mestrovic be reviewed

   4. That the Court take such necessary Action, Refer all such matters to the correct Authority and make all such Orders as it deems fit in relation to the Respondent [Ms Egbert] and Counsel [Mr T] to uphold the Legal Profession and Prevent them from Perverting the Course of Justice and Breaching the Crimes Act 1958 Section 83A

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

2. That application was listed before me in the Judicial Duty List on 5 September 2018.

3. The husband sought that the requirement of service on the wife be dispensed with pursuant to r 7.18 of the Family Law Rules 2004 (Cth) (“the Rules”). In support of that application the husband relied upon an Affidavit of Attempted Service of Ms V, Process Server filed 30 August 2018. Ms V deposed as to her unsuccessful attempts to serve the husband’s application and affidavit in support, both filed 25 July 2018 on the wife, in the period 15 August to 22 August 2018.

4. Having regard to that affidavit I am satisfied that the husband took reasonable steps to serve the documents and bring the application to the wife’s attention.  Further I am satisfied having regard to that affidavit and the nature of the proceedings, to which I will refer in more detail later in this judgment, that the requirement of service should be dispensed with.

5. There was no appearance by the wife and she did not file any documents in response to the Application in a Case.

Background

1. The husband has previously filed an Application in a Case on 13 February 2018.  That application sought orders in almost identical terms to those of the current application.  The orders sought in the February 2018 application were:

   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 prevent them from Perverting the Course of Justice

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

2. The husband’s February 2018 application was heard by me in a Judicial Duty List and on 22 August 2018 I made orders dismissing that application and I published my Reasons for Judgment.  There has been no appeal against those orders.

3. The only difference in the orders now sought by the husband in his Application in a Case filed 25 July 2018 as compared with the February 2018 application is order 4, where the husband has added the words “and Breaching the Crimes Act 1958 Section 83A”. The balance of the application, save for some minor grammatical changes, seeks orders in identical terms to those sought in the husband’s Application in a Case filed 13 February 2018.

4. In substance, the husband again seeks leave to apply out of time for a review of consent orders made by Registrar Mestrovic on 22 July 2015. The husband’s current Application in a Case is filed more than three years out of time.

5. For reasons set out below, I am satisfied that I am estopped from making orders in the terms of the husband’s Application in a Case filed 25 July 2018, having already determined those matters and dismissed the February 2018 application on 22 August 2018.  

Res Judicata

1. The orders made by me on 22 August 2018 determined the husband’s application for leave to review the Registrar Mestrovic’s orders out of time. On the same day I dismissed paragraphs 1 and 4 of his application, having determined that I did not have the power to make those orders.  As a result, in my view, the husband’s current application enlivens the principle of res judicata.

2. The Full Court in InThe Marriage of Caska (2002) FLC 93-092 discussed the principle of res judicata. Lindenmayer J, with Holden and Watt JJ agreeing stated the following at paragraphs 109-110:

   [109]The principle of res judicata estoppel is stated, relevantly, in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, Butterworths, London, 1996, at para 9, as follows (footnotes omitted):

   Where a final judicial decision has been pronounced on the merits by … a … judicial tribunal with jurisdiction over the parties and the subject matter, any party to such litigation, as against any other party … is estopped in any subsequent litigation from disputing such decision on the merits, whether it be used as the foundation of an action, or as a bar to any claim, … affirmative defence or allegation, provided the party entitled raises the point at the proper time. This rule is sometimes expressed in the maxim res judicata pro veritate accipitur.

   [110]In para 19 of the same work, the learned authors summarised the constituent elements of res judicata as being:

   (i) the decision was judicial in the relevant sense;

   (ii) it was in fact pronounced;

   (iii) the tribunal had jurisdiction over the parties and the subject matter;

   (iv) the decision was —

   (a) final, and

   (b) on the merits;

   (v) it determined the same question as that raised in the later litigation; and

   (vi) the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.

3. The husband seeks to re-agitate issues already determined by me in my orders and judgment dated 22 August 2018.  There has been no challenge to those orders.

4. The issue sought to be argued by the husband relates to a Costs Assessment order made by consent by Registrar Mestrovic more than three years ago on 22 July 2015.  That assessment of costs relates to a costs order in favour of the wife following the final hearing before Thornton J in 2014.  In particular, the husband is aggrieved at costs claimed by the wife in respect of counsel’s fees, notwithstanding that the husband consented to the orders with respect of those costs.

5. Notwithstanding the husband’s complaints, it was conceded by him during submissions before me that:-

   ·    The wife’s counsel appeared at the four day trial before Thornton J;

   ·    The wife’s counsel was entitled to be paid for his appearance at that hearing;

   ·    The costs assessment order allows for counsel’s fees for the hearing only and not any other appearances.

6. It became clear during the course of the husband’s submissions that his primary complaint relates to an alleged misrepresentation by the wife contained in the itemised costs account that she had paid counsel’s fees when in fact those fees had not been paid.  The husband alleges that the wife has engaged in fraudulent behaviour and therefore the Costs Assessment order should be set aside.  Those issues were traversed by the husband during the first hearing before me. 

7. The orders made by me on 22 August 2018 in respect of the husband’s first application were final.  In determining that application I stated:-

   …

   44.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. 

   45.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.

   46.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. 

   47.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.

   …

8. That judgment of 22 August 2018 determined the same questions as are raised by the husband in his current Application in a Case. In circumstances where the parties to that application are identical to those in the current proceedings, I am satisfied that the husband is now estopped from disputing that decision in accordance with the principle of res judicata.  To permit him to re-litigate the same issues in my view would be an abuse of process.

9. My orders and Judgment of 22 August 2018 also determined the applications now sought to be re-agitated at paragraphs 1 and 4 of the husband’s application.  Accordingly, having regard to the principle of res judicata I am satisfied that those applications should also be dismissed.

Costs

1. The husband also seeks an order that the wife pay the husband’s costs of and incidental to his application.

2. The question of costs is governed by section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) which provides:-

   Subject to sub-section (2), subsection 70NF(b)(1) and sections 117AA, 117AC and 118, each party to proceedings under this act shall bear his or her own costs.

3. That is, the general rule in proceedings under the Act is that subject to the provisions of s 117(2) of the Act, the parties to the proceedings shall bear their own costs of the proceedings.

4. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to sub-sections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.

5. Section 117(2A) of the Act provides that in determining what order (if any) should be made under sub-section (2) the Court must have regard to the following:-

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

6. In circumstances where the husband has been wholly unsuccessful in his application I am satisfied that there is no circumstance that would justify an order for costs.  In my view there is no basis for a departure from the general rule that each party to the proceedings should bear their own costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 November 2018

Associate: 

Date:  19 November 2018