FINDLAY & DANIELS

[2011] FamCA 234

FAMILY COURT OF AUSTRALIA

FINDLAY & DANIELS [2011] FamCA 234

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Previous orders amended to clarify that several entity names are all the one entity

FAMILY LAW – COSTS – Wife to pay husband’s costs wasted

APPLICANT: Ms Findlay

RESPONDENT: Mr Daniels

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1996 of 2008

DATE DELIVERED: 1 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 1 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O. Nikou SC

SOLICITOR FOR THE APPLICANT: Caroline Counsel

COUNSEL FOR THE RESPONDENT: Ms B.A. Tulloch

SOLICITOR FOR THE RESPONDENT: Holt & MacDonald

Orders

1. That paragraph 2 of the wife’s Applications in a Case both filed on 23 March 2011 shall be dismissed.

2. That the wife’s application for a Stay of the orders of 21 January 2011 shall be adjourned to 7 April 2011 at 10.00am before me.

3. That any further affidavit to be relied upon by the wife shall be filed and served by 11.00am on 6 April 2011.

4. That the wife shall pay the husband’s costs wasted this day, fixed at $1,980.

5. That paragraph 3 of the orders made on 21 January 2011 shall be amended so that any reference to “A Pty Ltd” shall read as “A-P Pty Ltd”.

6. That to the extent that it may be necessary, the appointment of the Registrar to sign documents on behalf of the wife pursuant to paragraph 3 of the orders made on 21 January 2011 shall be extended such that any reference in a document to:

   (a)A Pty Ltd;

   (b)AP Pty Ltd; or

   (c)AP

   shall be deemed to be a reference to “A-P Pty Ltd”.

7. That there shall be a Transcript of reasons given this day expedited, and retained on the court file.

IT IS NOTED that publication of this judgment under the pseudonym Daniels & Findlay is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1996 of 2008

Ms Findlay

Applicant

And

Mr Daniels

Respondent

REASONS FOR JUDGMENT

1. On 21 January 2011 I made the last of very many sets of orders in this case.  Many of them, including those of 21 January, have been directed to enforcement of final property orders made in March 2010, which in themselves were complex and difficult to come by, following judgment given in December 2009.  There had even been applications between the end of the hearing and the giving of reasons.  That highlights the need for finality now.

2. On 17 February 2011, I published the reasons for my decision and the orders of 21 January, having taken the view on 21 January that the orders were urgently needed, pending preparation of the reasons. 

3. Amongst the orders that I made on 21 January 2011 were orders that a Registrar have the power to sign documents to effect the removal of Ms Findlay as a director of various entities, an order restraining Ms Findlay from attempting to act in any way on behalf of those entities, and then an order that she could not institute proceedings without first obtaining the leave of the court. 

4. Now, within a short space of time, Ms Findlay has filed two applications, both on 23 March 2011.  In each of them she sought identical orders.  She sought a stay of the orders of 21 January until conclusion of her appeal SOA19/11, an appeal commenced by Ms Findlay by Notice of Appeal filed 16 January 2011, and orders that various original documents lodged by her in the substantive proceedings be returned to her.

5. In each application, there was another five paragraphs that were deleted.  One way or another, the applications must have been served on the husband, because he filed a response on 29 March 2011.  Both the application and the response were supported by very brief affidavits by the respective parties. 

6. The case was listed today for me to determine the issue in relation to the stay, an application for which Ms Findlay did not require any leave, it being specifically excluded.  I was also to deal with the other outstanding issue as to the return of documents. 

7. What has occurred is as follows.  After a long period of representing herself, Ms Findlay has now instructed a solicitor and has briefed senior counsel.  It is welcomed that she is going to have the support, and the court will have the assistance, of her legal representation.  However, she chose to arrange it only in the course of yesterday.  That is, it was done at the eleventh hour. 

8. This morning, Ms Nikou has appeared on her behalf, not even having all the relevant documents, let alone full instructions.  I ensured that she and Ms Tulloch, for Mr Daniels, had the relevant applications and affidavits, and enabled them to have time to take whatever instructions were needed.  Ms Nikou now advises that the only live issue from Ms Findlay’s two applications is the application for a stay of the orders of 21 January.  The other parts of her application are to be dismissed and I will make that order shortly.

9. She seeks an adjournment of the stay issue, preferably for two weeks or, at a stretch, for one week so that her instructor can get across the relevant material and properly brief her.  Not surprisingly the husband has argued against the adjournment, arguing, in particular, that no costs order could satisfy him for the wasted day, as he may not be paid.  In fact, when that is analysed a little closer, it is not absolutely accurate.  There is still money that is held in trust and can be made available to the husband shortly, in order to meet outstanding costs orders. 

10. I am satisfied that as a matter of fairness to Ms Findlay, the case should be adjourned.  But I propose adjourning it for just under a week.  I choose that day for the very good reason that it is the only day I am going to be able to hear it.  And if there is a little bit of stress in getting ready for that, so be it, when she has briefed so late, and there are several straight-forward judgments that set out what has occurred so far.  Moreover, in relation to the stay of the orders of 21 January, there is very little complexity surrounding that, in the sense that the orders are of narrow compass. 

11. That leaves one outstanding matter.  At paragraph 3 of the orders made on 21 January, I ordered a Registrar to sign certain documents.  That was on the strength of an oral application made for the husband that day, which, like many of the applications that have been before me in this case, was part of a fairly chaotic hearing process on that day.  I say “chaotic”, in the sense that there were different applications, different submissions, withdrawals of applications and then oral applications.  I am not directing the observation of “chaos” to one party.  It is just the reality of how things unfolded. 

12. The by-product of all that is that at paragraph (3)(a)(i) and again at paragraph (3)(b)(i) of those orders, I have referred to an entity, A Pty Ltd.  The reality is that that is “A-P Pty Ltd”.  The slip has been made by everyone, including myself, probably because it has been referred to throughout the proceeding by that truncated acronym.

13. I am comfortable, in the circumstances, to make the orders that are sought by the husband today, to rectify that.  It is probably something that could have been done under the slip rule in any event.  It is sought because the Registrar has forwarded a letter to the husband’s solicitors indicating that she is unwilling, as a matter of caution, to sign documents that are not in the precise company name.  The Minute prepared for Mr Daniels today seeks that paragraph (3) of the orders shall be amended so that any reference to “A Pty Ltd” shall read as “A-P Pty Ltd”.

14. The other order that is sought is that to the extent that it may be necessary, the appointment of the registrar to sign documents on behalf of the wife, pursuant to paragraph (3) of those orders, shall be extended such that any reference in a document to A Pty Ltd, AP  Pty Ltd, or AP, shall be deemed to be a reference to A-P Pty Ltd.  That is out of excessive caution, but is reasonable in the circumstances.  It is because, according to counsel for the husband, some of the bank documents that may require signing by the Registrar may refer to AP Pty Ltd, in one of those several ways. 

15. I do not see any prejudice to Ms Findlay in having that issue dealt with today, when her counsel cannot be fully across it, because, as I said, it probably could have been attended to under the slip rule in any event, and goes no further in affecting Ms Findlay’s rights than was the clear intent of the orders in the first place.

ORDERS DELIVERED

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on Friday, 1 April 2011.

Associate: 

Date:  1 April 2011