FLETCHER and BARESI

[2022] FCWA 49

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FLETCHER and BARESI [2022] FCWA 49

CORAM: O'BRIEN J

HEARD: 2 MARCH 2022

DELIVERED : Ex tempore

PUBLISHED : 7 NOVEMBER 2022

FILE NO/S: [Redacted]

BETWEEN: MS FLETCHER

Applicant

AND

MR BARESI

Respondent

Catchwords:

PRACTICE AND PROCEDURE - Where interim application is listed for hearing with ample notice to the parties - Where specific orders are made requiring personal conferral between the solicitors well prior to the hearing, and the filing of a joint minute, in circumstances where the certificate of conferral filed with the application reflects no adequate conferral to that point - Where there is no compliance with that order and on the morning of the allocated hearing the solicitors seek to have the matter stood down for discussions - Where as a result of those discussions agreement is reached - Solicitors’ duty to the court to conduct cases efficiently and expeditiously - Personal conferral as central to that duty - Requirement for personal conferral is not met simply by sending correspondence.

Legislation:

Family Law Act 1975 (Cth)
Family Court Rules 2021 (WA)
Legal Profession Conduct Rules 2010 (WA)

Representation:

Counsel:

Applicant	:	Lawyer A
Respondent	:	Lawyer B
Independent Children's Lawyer	:	Excused

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B
Independent Children's Lawyer	:	Excused

Case(s) referred to in decision(s):

Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) & Anor [2007] WASCA 67

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fletcher and Baresi has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 of the Family Court Rules 2021 (WA).

1The matter requiring determination is the application in a case filed by [Ms Fletcher] ("the wife") on 7 December 2021. In that application, she sought orders compelling [Mr Baresi] ("the husband") to permit her access to [Property A] ("the home") presently occupied by him, in order to take steps necessary to prepare it for sale.

2

The application was initially listed for hearing on

28 February 2022 for directions. However, orders were made in chambers on 6 January 2022 vacating that hearing and listing the matter for hearing and determination this morning. On the same day (that is, nearly eight weeks ago) orders were made requiring the parties and their solicitors to personally confer and make a genuine effort to resolve matters, and file, by the close of registry on 11 February 2022, a minute of any orders that could be made by consent. In the event that no resolution was reached, the husband was ordered to file and serve a response and any affidavit upon which he would intend to rely by the close of registry on 23 February 2022.

3No documents have been filed by either party since that order was made.

4The certificate of conferral filed by the solicitors for the wife with the application stated that those solicitors had written to the husband’s solicitors on 21 June 2021 and 12 August 2021 and received no response. While it is clearly unacceptable for solicitors to fail to respond to correspondence, the obligation to confer is mutual. Merely sending a letter, or for that matter several letters, inviting a response is not conferral. It was against that background that the specific order for personal conferral was made on 6 January 2022.

5At the hearing this morning I was advised that the solicitor for the husband had been in [State A] from mid-December until last week, and unable to return to Western Australia until very recently, whereupon they were required to self-isolate pursuant to the current health directions. The solicitor for the husband explained that other members of their firm are not on the relevant panel maintained by Legal Aid Western Australia, and that as English is not the husband’s first language, they have in any event found it more efficient to take instructions from him in person rather than by other means. They said further that the small town in State A where they stayed has poor internet access.

6Accordingly, little if any meaningful conferral took place until this morning. At the commencement of the hearing counsel advised me that they were having discussions and hoped to be able to resolve matters by agreement. They asked that the matter be stood down for that purpose.

7While of course I accommodated that request, it is fair to say that I made known my displeasure at the non-compliance by the parties with clear orders directed towards ensuring that they focused on the relevant issues, properly conferred, and avoided wasting the court’s time both in actual hearing and in preparation for that hearing. I reminded them also of the long-standing requirement that where counsel anticipate a matter will be settled, they do the courtesy of advising the court in advance.

8After finally conferring, the parties have reached agreement as to the interim orders to be made. The proposed orders provide for each party to obtain quotes for the work required on the home, and for the input of a Single Expert Witness ("SEW") valuer once those quotes are obtained. I propose to make the orders sought, but with the following observations.

9Quite apart from the obvious point that a specific order had been made, proper personal conferral is a critical feature of the proper conduct of litigation,[1] other than in exceptional circumstances including those in which family violence might render it inappropriate. Conferral is necessary for the purpose of identifying the issues actually in dispute, endeavouring to resolve them, and if they cannot be resolved, narrowing them. The benefit to the parties of that approach is obvious.

[1] Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) & Anor [2007] WASCA 67.

10Correspondence, no matter how voluminous or frequent, is no adequate substitute for parties and their lawyers actually talking to each other. A perception by a lawyer that the dispute is intractable, or that the other lawyer is unreasonable or less than competent, is no excuse for a failure to comply with the obvious duty to pick up the telephone and make an effort to discuss the matters in issue.

11It is notorious that parties to proceedings in this court, and in the Federal Circuit and Family Court of Australia, have to wait too long for their matters to progress to trial. The courts must do their part to progress cases efficiently, without compromising the quality or justice of outcomes, with the limited resources available. Parties and the lawyers representing them must comply with orders and rules directed to that end. Lawyers must comply with their clear duty to the court to conduct cases efficiently and expeditiously. That duty is nothing new – it is long established at common law and reflected not only in the Family Court Rules 2021 (WA) but for that matter in the Legal Profession Conduct Rules 2010 (WA).[2]

[2] Legal Profession Conduct Rules 2010 (WA), r 46(1).

12The failure of the solicitors for the parties in this case to personally confer until this morning represents a failure to meet that duty. It is, regrettably, not an isolated example of the failure of the parties to properly advance this matter towards a conclusion.

13Orders were made by consent on 19 December 2019 requiring the parties to "forthwith" do all things necessary to sell the home. The orders included detailed conditions directed towards ensuring the husband’s cooperation with the sale, bearing in mind that he was (and remains) in occupation of the property. The orders provided for the net proceeds of sale to be paid into an interest-bearing joint account until further order.

14Those orders also made specific provision for the parties to undertake any repairs recommended by the appointed agent in order to properly list the property for sale, and for the costs of those repairs to be met by releasing or redrawing funds from a specified offset home loan account. Each party was at liberty to obtain two quotes for recommended work, with the lowest quote to prevail in the absence of agreement to the contrary. Further provision was made for the parties to make an insurance claim for water damage to the property documented in a valuation report. The parties had liberty to apply as to implementation or enforcement of those orders.

15The relevant orders remain in force. No application has been made to set them aside. While in a minute of final orders proposed to be sought by him at trial, handed up in court on 24 August 2021, the husband expressed an intention to seek final orders for the transfer of the home into his sole name, the existing orders were not in any way addressed. In the wife’s minute of final orders proposed to be sought at trial, filed on 9 July 2021, she continued to seek the sale of the property, with supportive orders to facilitate necessary repairs which had not been advanced since the making of the earlier consent orders. She left open the possibility of the husband being "permitted to purchase" the home "at market value".

16At the time the consent orders were made, issues as to necessary repairs were already known to the parties. Those orders were sought to be addressed by the consent orders.

17The parties attended a conciliation conference on 19 March 2020 and no agreement was reached. Orders were made including the proceedings in the defended list in relation to both financial and parenting matters, and the registrar made the necessary orders for the filing of trial documents. Somewhat confusingly, on 25 March 2020 a magistrate made different orders for the filing of trial documents, it would seem in the context of the interim parenting dispute, which was then prominent, and without regard to the financial case. It does not appear that either lawyer alerted the magistrate to that issue. Nothing turns on the matter in any event, as orders were subsequently made to clarify the obligations of the parties to prepare the matter for trial.

18Also on 19 March 2020, the husband served a notice to admit facts asserting that the home in its then current condition was "unable to receive Shire approval necessary for sale and settlement to take place". He sought admissions as to the costs of necessary repairs, the cost of demolishing the property, and the estimated value of the land only if the property was demolished. Annexed to the notice were documents purporting to support those propositions. The wife served a notice disputing facts dated 1 April 2020 admitting the asserted cost of demolition, but not admitting the balance of the facts asserted.

19The focus of the parties was then largely directed to the difficult issues associated with the parenting case. A SEW was appointed on 31 July 2020 and has reported. The parenting case has not resolved.

20The readiness hearing was listed for 23 February 2021, and the parties were required to have filed their trial materials prior to that hearing. Neither did so. The proceedings were assigned by the presiding magistrate to the complex track, with no other orders to advance the matter being made. They were listed before me for directions on 8 June 2021, bearing in mind the expressed intention of the parties to seek an updated report from the SEW, and that the report would take two to three months to produce.

21On 2 March 2021, the solicitors were directed to personally confer and file by 1 June 2021 a joint minute setting out the orders each would contend to be necessary to progress the matter to trial and indicating which of those orders could be made by consent. They did not do so.

22At the hearing on 8 June 2021, various orders were made extending the time for compliance by the parties with the previous orders for the filing of their trial materials, and the matter was adjourned to 24 August 2021 for monitoring of compliance with those orders. The orders required the parties to file minutes of proposed orders by 6 July 2021, and their trial affidavits and undertakings as to disclosure by 17 August 2021. The parties did not comply.

23

The wife filed her minute of proposed orders on 9 July 2021, and the husband’s minute was handed up in court on 24 August 2021. The wife’s trial affidavit and financial statement were filed on

24 August 2021. At the hearing that day, counsel for the husband told me that his documents were "90% ready" and would be filed within the next week or two. On the strength of that assurance from an officer of the Court, albeit with some reluctance, I made orders including the proceedings in a callover on a date to be advised.

24The husband’s trial materials have still not been filed over six months later. At the hearing this morning, his counsel accepted that it was appropriate in the circumstances for a self-executing order to be made to permit the wife to proceed on an undefended basis if he does not now file them. I enquired as to how long they would say the husband now requires to file his trial materials. The husband’s solicitor told me they could be filed by 13 April 2022.

25On that basis and given that the callover date for this matter has not yet been allocated, I propose to give the husband one further opportunity to comply with his clear obligations.

26There will be the following orders:

1.By consent, orders are hereby pronounced in terms of the Minute of Interim Consent Orders handed up and filed in Court today.

2.The time within which the Respondent, [Mr Baresi], is to comply with paragraphs 4 and 6 of the orders made on 25 March 2020 (as subsequently extended) by filing a single stand-alone affidavit setting out the whole of his evidence in chief for the purposes of trial and an undertaking as to disclosure, and with paragraph 8(d) of the orders made on 19 March 2020 by filing an up-to-date financial statement is extended to no later than the close of Registry on 13 April 2022.

3.In the event that the Respondent does not file the said documents in compliance with the immediately preceding order, all outstanding applications and responses filed by him be and are hereby dismissed, and the Applicant, [Ms Fletcher], have leave to proceed with her substantive application on an undefended basis.

4.Costs of both parties reserved.

These reasons are the reasons for decision delivered on

2 March 2022, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

GA

Associate to the Judge

10 MARCH 2022