Esdale & Schenk
[2012] FamCA 111
•12 March 2012
FAMILY COURT OF AUSTRALIA
| ESDALE & SCHENK | [2012] FamCA 111 |
| FAMILY LAW – DE FACTO – HOGAN ORDER – where applicant claims to have been in a de facto relationship with the respondent – where the respondent denies the existence of the alleged relationship – whether the Court has jurisdiction to make partial property orders when the jurisdiction of the Court is dependent on there being a de facto relationship and that issue has not yet been determined – where the Court has no jurisdiction to make interim property orders where a determination has not been made regarding the existence of a de facto relationship – whether the Court has jurisdiction to award costs where a determination regarding the existence of a de facto relationship has not been made – where the Court has jurisdiction – where, in the circumstances of this case, it is not just that the respondent should meet the litigation expenses of the applicant. |
| De Facto Financial Matters and Other Measures Act 2008 (Cth) Family Law Act 1975 (Cth) |
| Breen v Breen (1990) 65 ALJR 195 |
| APPLICANT: | Ms Esdale |
| RESPONDENT: | Mr Schenk |
| FILE NUMBER: | BRC | 9203 | of | 2011 |
| DATE DELIVERED: | 12 March 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney (by video) |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 6 March 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hackett of Counsel |
| SOLICITOR FOR THE APPLICANT: | Evans & Company Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hodges of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Barbara Fox Solicitor |
Orders
IT IS ORDERED THAT:
The Applicant have leave to file an Amended Application for final orders,
The Application in a Case filed 1 February 2012 be dismissed.
The question of the costs of and incidental to the said Application in a Case be reserved to the trial judge.
Paragraphs 2 and 3 of the Response to an Application in a Case filed 29 February 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Esdale & Schenk 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 |
FILE NUMBER: BRC9203 of 2011
| Ms Esdale |
Applicant
And
| Mr Schenk |
Respondent
REASONS FOR JUDGMENT
In about eight weeks time, the trial between these parties is due to take place in respect of the discrete issue as to whether a de facto relationship as defined in the Family Law Act 1975 (Cth) (“the Act”) existed between them.
The applicant asserts that a de facto relationship commenced in April 2006 when she was about 41 years of age. The respondent, who at that time was about 88, denies any such relationship. The respondent asserts that the applicant was his full-time carer for which she was paid an appropriate wage.
The present Application sees the applicant seeking an order for the payment to her of a sum of money which, she deposes, will be utilised in the payment of prospective legal fees in and about the trial just referred to. An amount of $65,000 is sought. The precise terms of the order sought is:
Within seven (7) days of the date of this order, the respondent shall do all things necessary to cause the sum of $65,000 or such other sum as the court determines, to be paid to the trust account of Evans and Company Family Lawyers, to be solely applied towards the applicant’s legal costs and outlays in these proceedings, PROVIDED ALWAYS THAT the determination as to whether the payment is to be treated as a debt due by the applicant to the respondent or as part of the applicant’s entitlement to property settlement, or the provision of maintenance by the respondent to the applicant, or in payment by the respondent to the applicant for her costs of and incident to these proceedings, or otherwise, be adjourned to the trial judge.
Jurisdiction and Power
Proceedings were commenced in the Federal Magistrates Court of Australia on 14 October 2011 before being transferred to this Court. At that time, the De Facto Financial Matters and Other Measures Act 2008 (Cth) (the “De Facto Act”) had been passed.
However, no proclamation was made pursuant to s 40(2) of the Act fixing a date “after which the jurisdiction of [this Court] may be exercised.”
The absence of a proclamation relevant to the amendments to the Act effected by the De Facto Act has received wide publicity. It has been suggested that the absence of that proclamation may affect proceedings filed prior to 11 February 2012, the date of the eventual proclamation. In my view, any such concern is misplaced. (See Brugman & Marley [2012] FamCA 106, per Kent J). I respectfully agree with the distinction drawn by Kent J in that decision.
Section 39B of the Act gives this Court jurisdiction in “de facto financial causes”. As the Note to that section makes clear, the exercise of the jurisdiction thus conferred is subject to section 40. Section 40(2) requires a proclamation to be made under that section before the Court can exercise the jurisdiction. That proclamation was not made until 11 February 2012.
But, there is a distinction between the filing of an application in respect of the jurisdiction conferred and the exercise of that jurisdiction as is made clear by comparing s 39A and s 39B with s 40. The effect is, in my view that both the Application for Final Orders and the Application in a Case in the proceedings before me were validly filed. The Court is not exercising jurisdiction until 6 March, that is after the date of the Proclamation.
The Application in this Case
Accordingly, there is no impediment to the Court hearing the instant application which was filed on 1 February 2012, nor is there any impediment to the court exercising jurisdiction pursuant to the jurisdiction conferred in respect of “de facto financial causes”. The Court has jurisdiction to hear the Application and power to make orders.
However, a further issue arises concerning the Court’s power. The essence of the case to be heard at trial commencing 16 April, is that there is no de facto relationship between the parties. If there is no de facto relationship between the parties as defined in the Act, there can be no “de facto financial cause” (defined in s 4). If there is no de facto financial cause, this Court does not have jurisdiction to hear and determine the applicant’s substantive claim (s 39B).
The grant of jurisdiction to this Court carries with it the power to determine the existence or otherwise of facts upon which its jurisdiction depends (DMW & Another v CGW (1982) 151 CLR 491 at 506; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 638). Thus, this Court has power to determine whether a de facto relationship as defined in the Act exists as between the parties to the instant application.
Findings as to those facts and that ultimate issue are the factual findings upon which it is to be determined whether there exists the jurisdiction make orders pursuant to s 90SM and s 90SS of the Act.
The applicant asserts the Court has power to make a “partial property order” pursuant to s 90SM or, alternatively pursuant to s 117.
If as contended on behalf of the applicant, the Court makes a “partial property order” pursuant to those sections, the jurisdiction to make such an order is assumed. But, that question is yet to be determined.
Justices Wilson and Dawson said in R v Ross-Jones at 213:
The power to determine the existence of jurisdictional facts is not a power which in any way extends the jurisdiction of Court. If a matter is beyond the jurisdiction of a Court, it cannot be brought within jurisdiction for the purpose of granting interlocutory relief. That proposition appears to us, with all respect, to be self-evident and decisive.
Proceedings of the type which will be tried in about eight weeks are proceedings determining jurisdictional facts. In my view, the Court has jurisdiction to grant interlocutory relief in respect of those proceedings. That is, the Court has jurisdiction to grant interlocutory relief in respect of the primary proceedings which are proceedings for the determination of the requisite jurisdictional facts.
The circumstances in which a court may grant interlocutory relief upon satisfaction of a prima facie case that jurisdiction exists are limited and essentially confined to urgent cases where, “… the circumstances point compellingly to a need to preserve the status quo as an interim measure pending a hearing to determine whether interlocutory relief should be granted.” (Ross-Jones at 213 per Wilson and Dawson JJ).
In my view, the Court’s jurisdiction and power to make interlocutory orders in the circumstances under consideration is confined to powers ancillary to the jurisdiction and power to make orders determining whether the Court has jurisdiction. This Court does not have jurisdiction or power to make interlocutory orders with respect to sections 90SM or 90SS, pending a determination of whether there is a de facto financial cause.
The question remains whether the Court has power to make an interlocutory order of the type sought pursuant to s 117 of the Act.
Within the context of a marriage, there is no doubt that s 117 is the source of power to make an order of the type sought. So much was recognised in Breen v Breen (1990) 65 ALJR 195 in respect of a matrimonial cause. (I note that the majority in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 suggested that an order of the type sought might more properly be described as “an order for interim provision for litigation expenses”). The power to award costs contained in s 117(2) of the Act is a power to, relevantly, “make such order as to costs and security of costs, whether by way of interlocutory order or otherwise, as the Court considers just”. That power is conditioned upon, first, there being “proceedings under this Act” and, secondly, the Court arriving at an opinion that “there are circumstances that justify” the making of an order.
Plainly, proceedings in which the Court is asked to determine if it has jurisdiction are not “proceedings under [the] Act” if that expression is confined to proceedings which find the head of power to which they relate specified in terms within the Act; no provision of the Act gives the Court jurisdiction to decide if it has jurisdiction.
Yet, as has been seen, plainly enough the Court does have such jurisdiction. And, that jurisdiction exists despite the fact that this Court, although a superior court of record, is a court whose jurisdiction and power is confined by statute. Where the Court has inherent jurisdiction, such as the jurisdiction to decide the facts upon which the existence of jurisdiction are based, the Court has all of the powers necessary or ancillary to the determination of that issue.
In my judgment, the expression “proceedings under [the] Act” in s 117 includes proceedings brought to determine if there is jurisdiction in respect of proceedings under the Act. The power to award costs pursuant to s 117 is a power ancillary to the exercise of those powers in respect of those proceedings.
Thus, the Court has the power to make all orders of the type contemplated by s 117 in proceedings whose purpose is to decide if the Court has jurisdiction. As has been seen, s 117 contemplates, in terms, an “interlocutory order”.
The s 117 power thus expressed is subject to, relevantly, subsection 2A. That subsection sets out the considerations relevant to the Court arriving at the opinion just referred to.
Reference to that subsection reveals that, in applications of the present type, many of its subparagraphs will not be relevant, and that it may “well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the subsection, as is permitted by paragraph (g)”. (See Zschokke& Zschokke (1996) FLC92-693 at 83,217).
But, while the Court has power to make such an order the exercise of that power must, in my view, very much bear in mind the context in which it is sought to be exercised. The narrow ambit within which orders ought be made while the question of whether the Court has jurisdiction is yet to be decided emphasised in all of the judgments of the High Court in Ross-Jones above, is a powerful consideration in the exercise of the power.
The Application is, then, in my judgment, to be judged by reference to the factors outlined in s 117(2A), bearing in mind that the factors are inclusionary as the Full Court has pointed out and bearing in mind the context in which the Application is made.
The Applicant’s Case
The applicant says that she is unemployed and is presently unable to work. She is the joint owner, together with the respondent, of a piece of real property at Town U.
That property is the subject of an affidavit filed on behalf of the respondent by a real estate agent, who says that there is currently a contract for sale in respect of the property, and who deposes generally about market conditions and the impact that it has had upon the sale of the property. There is currently a contract in respect of the property. The respondent asserts the applicant is able to use her share of the proceeds of sale if she would sign the contract which she refuses to do. The applicant responds by making it clear that she seeks to keep that property in an ultimate division of property between the parties.
The applicant asserts that the respondent has refused to file a financial statement in these proceedings – presumably on the basis that until such time as a de facto relationship has been declared, he has no obligation to do so because his overall financial circumstances are not relevant except to the extent that, for example, any co-mingling of finances during the course of the alleged relationship are alleged to be a factor pointing to its existence.
The applicant deposes, however, to assets which she contends that the respondent has in Australia. They are significant. They include a half interest in the property at Town U earlier referred to (estimated by her to have a value of $350,000 although the contract price is significantly less) a half interest in a boat estimated to have a value of $1.6 million and about $620,000 in cash in two bank accounts.
The applicant also has an interest in a property in Canada. It is estimated to have a value of $500,000. She also holds a one half interest in the property at Town U earlier referred to.
The respondent asserts that the applicant’s case “is inherently improbable and likely to fail”. The applicant however points to, in particular, Statutory Declarations signed by the applicant to the alleged effect that the parties were in a de facto relationship and contends that it is not possible to dismiss the applicant’s case as “inherently improbable”. A number of specific instances are given of the evidence which are said to support the respondent’s ultimate conclusion. In summary, they are:
·The 47-year age gap between the parties;
·The decline in the respondent’s physical and mental health and the amount of assistance and medication required;
·The fact that the respondent required and requires a full-time carer and a wheelchair;
·His permanent impotence since 1993, the fact that he has a pacemaker and has had triple by-pass surgery;
·The parties never shared a bedroom: the applicant lived in separate quarters;
·Allegation of sexual conduct by the applicant which is denied, but, on the applicant’s own case, there was no sex and she was not sexually attracted to him;
·The applicant was in a committed relationship with someone else;
·Prior to commencing these proceedings, the applicant sought compensation for unfair dismissal as against the respondent;
·The nature of visas applied for and received by the applicant.
It is recognised in Strahan and in cases decided since (e.g. Vanin & Vanin [2012] FamCA 16) that imprecision will necessarily attend the calculations (and, I infer, some of the conclusions), which attend the making of the decision of the type under consideration. The decision is made in the context of interim proceedings with all of the restrictions necessarily inherent in them (see Ciabo & Ciabo (1996) FLC 92-651).
I am not prepared to draw any firm conclusion about the merits or otherwise of the applicant’s case for the existence of a de facto relationship, save to reiterate that the as yet undetermined jurisdictional basis for the applicant’s claim is a very significant factor.
In that respect a distinction, in my view, needs to be made between where an applicant for orders of the current type is clearly entitled to property (see Zschokke at 83,217; Strahan at [83]) and circumstances where, as here, that cannot be asserted. Even in the former case, more must be shown than that an entitlement is inevitable (Strahan).
It is contended on behalf of the applicant, that the respondent is, on any view, in a far superior financial position to the applicant. Together with the assets earlier referred to, she contends that he derives a passive income of $1,250,000 per annum. It is not contended, nor on the evidence before me would it appear possible to contend, that the respondent does not have the capacity to meet the orders sought by the applicant.
It is argued that there is no identifiable pool of funds from which the applicant can meet her legal expenses. She is unemployed with modest assets and has a consequent incapacity to borrow. Her lawyers, who have represented her in the proceedings thus far and to whom, it seems, she has already paid legal fees, depose to the fact that they require payment of their fees “up front” in order to continue to represent her.
At paragraph 22 of a written outline prepared on behalf of the applicant, it is argued as follows:
It is contended that the Respondent has chosen to conduct himself in these proceedings without regard to costs and in a way which fully exposes the Applicant to the prejudice of being in a lesser financial position:
(a)The Respondent has filed l8 Affidavits in these proceedings from 14 different witnesses in the proceedings to date.
(b)The Respondent has insisted on the declaration being determined by a discrete hearing causing a replication of legal work given that many of the matters covered in the declaration hearing will also need to be covered in the substantive property adjustment Hearing. This ultimately means added expense and delay.
(c)The parties are in dispute in respect of virtually every single issue and the attempts made by the Applicant to narrow the issues by delivery of a Notice to Admit Facts has been frustrated by the Respondent putting in issue every fact notwithstanding the Respondent admits executing statutory declarations about which admissions were sought.
I am not persuaded that the matter there contended for ought be a factor in the exercise of my discretion.
Whether those matters, or others like them, might be considered reasonable or unreasonable – or, indeed, necessary – are matters which must await the ultimate findings made at a trial. It may well be (although I do not specifically find) that the respondent has been put to additional costs, but that is an issue that requires exploration beyond this interim hearing.
The decision as to a discrete hearing is that of the Court, not that of the applicant. Such additional costs as might have been incurred by the respondent in relation to the number or nature of affidavit material filed on behalf of the applicant, may be irrelevant if it be determined that all of those affidavits were necessary so as to establish a fact ultimately found. If not, any such issue can, in my view, be taken up in any application for costs which, on the applicant’s case, the respondent has the means to meet. Again, any such application for costs must await the findings ultimately made at the trial.
Finally, it is contended on behalf of the applicant, that the respondent cannot point to any prejudice that he would suffer if the Court were to make an interim costs order. It is argued:
There is no dispute that in the event the applicant is unsuccessful, the applicant has the capacity to repay the respondent what is paid to her by interim costs orders. Similarly there is little doubt that if the applicant’s [sic] succeeds she will obtain an order against the respondent in an amount in excess of amounts sought by her by interim costs order.
Matters Informing the Discretion in this Case
Plainly enough, the respective financial circumstances of the parties are directly relevant to an application of the present sort. Notwithstanding the absence of evidence of what may be assets or financial resources held by the respondent in addition to those referred to by the applicant, it is in my view tolerably clear that there is a significant disparity in the financial circumstances of the respondent when compared to those of the applicant.
The respondent places significant reliance upon the conduct of the parties (s 117(2A)(c)). The matters relevant to that factor turn predominantly on assertions made with respect to the relationship alleged to exist (and to have existed at the relevant time) between the applicant and Mr H. It is said that there is “independent evidence on a back-up disk for [Mr H’s] computer relevant to the issues in the proceedings which includes the nature of the relationship between [Mr H] and the applicant.”
The applicant contends that there is no evidence to support those assertions. Moreover, it is submitted that the argument is based on a false premise, namely that a de facto relationship as defined must be an exclusive relationship.
There is some merit in each of those arguments. As to the latter, I hold to the views expressed in Jonah & White [2011] FamCA 221 at [62] – [64]. I also accept that there is no evidence before me which sustains the contentions referred to – at least insofar as they might be said to be relevant to a finding of relevant “conduct” within the meaning of s 117(2A)(c).
The matters referred to in s 117(2A)(d), (e), (f) are not relevant on the evidence before me.
I turn to the “other matters” which I consider relevant by reference to s 117(2A)(g).
As I have said, a powerfully relevant factor is that a potential outcome for the proceedings between these parties is that the Court has no jurisdiction by reason of there being no de facto relationship as defined in the Act. The comments of the justices of the High Court in Ross-Jones have already been referred to.
A finding in favour of the respondent brings with it the consequence that the applicant may have no entitlement to relief pursuant to s 90SM and s 90SS of the Act. That result also brings with it the possibility of a successful application for costs sustained by the respondent.
In Strahan (at [92]), the majority made reference with approval to what the Full Court had said in Zschokke. The majority in Strahan said:
93.In Zschokke the Full Court at 83,220 was of the view that in that case, there were “real uncertainties concerning the outcome of the wife’s property settlement claim” and considered that the order could not be made pursuant to the provision of s 80(1)(h) of the Act “for the reason that the eventual property settlement of the wife may well not be large enough to permit the monies advanced under the s 80(1)(h) order to be satisfactorily or justly taken into account in the final settlement”. This of course follows from what, at 83,216, the Full Court had said about a brief consideration of matters in s 79(4) and that if it seemed that the applicant for the interim order “will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the orders sought to be made …”.
94.In relation to an order under s 117(2) of the Act the Full Court in Zschokke at 83,216 said that provided such an order was by way of security or an interim order it is “desirable in most cases in the interests of according justice to each party” that an order or direction be made to the effect that “the sums paid pursuant to the order could be taken into account, or at least had regard to, in the determination of the property proceedings between the parties”.
95.… The Full Court at 83,221 went on to say, “[h]owever while the conclusion in relation to the uncertainty of the amount of the [applicant’s] eventual property award may be fatal to an application under s 80(1)(h), it is not necessarily so to an application under s 117(2). It is just one of the matters to be balanced in the exercise of the discretion under the latter subsection”.
The majority continued in Strahan by enumerating a number of factors referred to by Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 at [30] and [31] (referred to by the majority at [96]). The matters there referred to, which are referenced to earlier decisions of the Full Court, are repeated (insofar as they are relevant) in the written submissions on behalf of the applicant (at [14] of the applicant’s outline).
It can be accepted that the matters referred to by Brereton J earlier referred to are satisfied by the applicant here:
§There is “at least an arguable case” that jurisdiction will be determined and that a 90SM/90SS order will be made;
§There is evidence of the likely cost of litigation;
§The applicant’s solicitor deposes to being “unable to offer to the applicant the option of deferring [her] fees in this matter” noting that “this is not an essential pre-condition”;
§There is no evidence that the rate in respect of the litigation expenses is unreasonable;
§The application relates to future costs.
It is true that the Full Court in Zschokke referred to the need for an applicant to establish the “reversibility” or the potential for “claw-back” of any amount advanced to meet prospective litigation expenses. However, in circumstances where an entitlement by that party to an ultimate order for settlement of property cannot be assumed and where in fact the respondent’s success in the proceedings would see the Court not having jurisdiction to make an order, the matters just referred to are, in my view, powerfully important in the current application.
In Strahan (noting that there the Court was referring to an “interim property order”) the majority spoke of a “two-step” or “two-phase” process in determining such an application. The first stage (where the issue is “procedural” or “adjectival”) requires a determination whether the interests of justice require the exercise of the relevant power. In that context, it is unnecessary to show “compelling circumstances”.
In addressing the factors relevant to the so-called first step, the majority in Strahan cited with approval, Reithmuller FM’s comments in Wenz & Archer (2008) 40 Fam LR 212 at [52] (again noting that an interim property order in a matrimonial cause was there under consideration). Those matters include:
·The consideration of the need for, and effect of, interim orders weighed against the risks that the exercise of the power on an interim basis will interfere with the power of the Court to make “just and equitable orders on a final basis…”
·The order must be just and equitable; according to at least a preliminary view of the likely “range of outcomes”.
·Balancing the risks includes a consideration of not only the quantum of the orders but also the risk of “unduly limiting the final orders that can be made (or even potentially defeating parties’ claims or legitimate expectations)…”
·A party who “…has an irresistible claim to a substantial share of the property of the parties should [not] be held out of that property while the matter is litigated, left to rely upon applications for exclusive occupation of the matrimonial home or spousal maintenance alone, particularly where the parties are asset rich but have relatively modest incomes …”
·A party should not “…be denied the ability to liquidate assets when there are real needs for those resources, such as to meet debts which may result in the party being pursued by creditors…”
Whilst appreciating that those factors are directly relevant to a discussion by the majority of the Full Court in relation to an interim property settlement and not an exercise of the costs power, nevertheless, some of those matters seem to me to be directly relevant to the exercise of the discretion inherent in s 117(2) in the circumstances under consideration (s 117(2A)(g)).
The first of the enumerated matters above might be seen to be mirrored in my concerns earlier expressed about the difference in the nature of an application of this type where an entitlement to a substantive order is conditioned upon a jurisdiction not yet established.
So too, the emphasis on justice and equity by reference to “at least preliminary views of the likely range of outcomes” might be seen to be mirrored in the necessity for at least a preliminary view as to whether any order for, relevantly, interlocutory costs is “just” within the meaning of the section.
Equally, the reference to “an irresistible claim” in circumstances where neither jurisdiction nor a party’s entitlement to receiving at least something is in issue, can be seen to be very different from where each is in issue. Framed by reference to the relevant head of power, the Application here seeks from a person who denies any entitlement to the other and has a prima facie foundation for denying such entitlement, that the person fund the litigation that seeks to establish that very entitlement.
It is plain that s 117(2A) does not prescribe that more than one factor must be present or that any one factor has more or less weight than any other. They are each and all matters which inform the overall discretion inherent within the section. (PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.)
In that regard, the applicant contends that she ought not be effectively forced to sell the property which she jointly owns with the respondent because she seeks to retain that property as part of any overall entitlement she might have if she is able to establish jurisdiction and if, in turn, she is able to establish an entitlement that would permit of such a result.
But adverse consequences resulting from orders do not necessarily point to them not being made. In effect, the applicant seeks to have the Court pre-judge that entitlement to the extent of at least holding the property (which, it might be noted, is jointly owned) in limbo until after the proceedings are determined and before she has yet established either jurisdiction or entitlement but have the person who denies jurisdiction fund her desire to do so.
While the cases in respect of matrimonial causes reveal multiple heads of power for the making of any order, those same cases also emphasise that each is much more than a convenient vehicle for achieving the same end. If the property power is relied upon, the relevant requisites of justice and equity must be complied with; if the maintenance power is to be relied upon, the relevant requisites of need, capacity and propriety must be met. So, too, where the costs power is relied upon. The majority in Strahan emphasise this very point by pointing out clearly that the relevant head of power under which the order is sought must be clearly identified.
The exercise of the costs power does not merely involve a consideration of the s 117(2A) matters. It also involves paying proper regard to s 117(1). That is, the Application must be judged by reference to the primary position that “each party shall bear his or her own costs”.
Even where proceedings involve a matrimonial cause and jurisdiction is not in issue and even where, within those proceedings, an applicant for litigation expenses can establish an entitlement to ultimate relief, it by no means follows that litigation expenses will be awarded by reference to s 117 as the head of power. Section 117(1) remains, as it were, an obstacle that must be overcome. Indeed, it might be thought that this consideration explains why it is almost invariable that applications of this type are brought in reliance upon the power to make interim property orders and not the costs power.
Those same considerations seem to me to apply with greater force in circumstances where jurisdiction is not yet established.
In all of the circumstances of this case, I do not consider it just that the respondent should meet the prospective litigation expenses of the applicant as claimed. The Application will be dismissed.
I reserve any question of either party’s costs of and incidental to this application to the trial judge.
Orders sought by respondent
I have referred briefly to this issue earlier in these Reasons. In addition to seeking that the Application in a Case be dismissed, the respondent seeks the following orders:
2. That the Applicant forthwith cause [Mr H] to consent to the disclosure of all information, documents, communications and images relating to the nature of the relationship between himself and the Applicant contained on the backup disc presently held by [Firm A] the Solicitors for [B Ltd]
3. That the Applicant forthwith disclose all information, documents communications and images contained on her computer and/or her mobile phone relevant to her relationship with [Mr H].
In my view, I do not have the power to order a party to proceedings to cause a stranger to the proceedings to do that which the order seeks.
Paragraphs 2 and 3 of the Response to an Application in a Case filed 29 February 2012 are dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 12 March 2012.
Associate:
Date: 12 March 2012
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