Freer and Freer and Ors (No. 2)

[2009] FamCA 759

FAMILY COURT OF AUSTRALIA

FREER & FREER AND ORS (NO. 2) [2009] FamCA 759

FAMILY LAW – PROCEDURAL – applications

APPLICANT: Ms Freer

FIRST RESPONDENT: Mr Freer

TRUSTEE IN BANKRUPTCY: Mr Smith

INTERVENOR: Mr Rickards

FILE NUMBER: ADF 1629 of 2005

DATE DELIVERED: 16 June 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 16 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Lynch Meyer

COUNSEL FOR THE RESPONDENT: Mr Swan

SOLICITOR FOR THE RESPONDENT: Swan Lawyers

COUNSEL FOR THE OTHER PARTY: Mr Gretsas

SOLICITOR FOR THE OTHER PARTY: Gretsas & Associates

SOLICITOR FOR THE INTERVENOR: In person

Orders

1. That leave be granted nunc pro tunc to the husband to file his Amended Application in a Case filed on 12 May 2009 and his affidavit filed on 2 June 2009.

2. That the husband pay to the trust account of the solicitors for the wife the sum of THREE HUNDRED DOLLARS [$300.00] by way of costs thrown away such sum to be paid within 28 days of the date hereof.

3. That the husband pay to the Trustee Mr Smith the sum of FOUR HUNDRED DOLLARS [$400.00] by way of costs thrown away such sum to be paid within 28 days of the date hereof.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1629 of 2005

MS FREER

Applicant

And

MR FREER

Respondent

And

MR SMITH

Trustee in Bankruptcy

And

MR RICKARDS

Intervener

EX TEMPORE REASONS

1. This matter comes before me today at the request of the husband.  His solicitor sent an email to my associate about that sometime prior to 10 June, seeking that the matter be re-listed for a specific purpose, namely, to seek an order granting leave to inspect certain documents produced by the trustee, Mr Smith, the inspection of those documents having been objected to on the ground of legal professional privilege.  I acceded to that request to list the matter, obviously urgently, and before the commencement of the two-day hearing in this case, which is indeed set for tomorrow and the next day. 

2. I am told though, by Mr Swan for the husband, that as recently as this morning, his senior counsel Mr Wells QC, advised that, at this stage, the foreshadowed application for inspection should not be pursued.  Mr Swan, though, has taken the opportunity to raise other matters which needed to be raised, arising out of my reasons for judgment delivered on 28 April 2009.  Firstly, Mr Swan has pointed out that his client filed a Further Amended Application in a Case on 12 May 2009.  That was done as a result of remarks that I made in paragraph 6, 7 and 8, of my reasons for judgment.  That has been filed without leave, but Mr Swan seeks leave now to file that document and there is no opposition to me granting that leave. 

3. Secondly, there has been an affidavit filed by the husband on 2 June 2009 that flows from paragraph 9 of my reasons for judgment.  The affidavit was supposed to be filed by 26 March 2009 but obviously it has been filed late and without leave.  Mr Swan seeks that leave, and there is no opposition to that, although Mr Gretsas has indicated that his position is not to oppose because of the closeness of the hearing and so as not to cause any delays, and I understand that sentiment.  Thus I propose to grant leave to file that affidavit. 

4. Mr Berman has advised that there is no request to cross-examine the husband.  That was a matter which was left up in the air somewhat, previously, and there has been no other indication by any other party that the husband will be needed for cross-examination.  Thus at this stage, there will be two witnesses presented for cross-examination, and that is Mr Smith, the trustee, and Ms Cooper, the wife’s solicitor. 

5. Now, as a result of the hearing today and what has transpired, in particular, the decision not to pursue the application for inspection which was, of course, the primary reason why this matter was listed today on an urgent basis, the wife and the trustee make applications for costs thrown away.  Mr Berman seeks the sum of $350.  Mr Gretsas seeks costs on an indemnity basis and he seeks $600.  Mr Swan has indicated that he does not oppose an order for costs being made, however, he does oppose those costs being calculated on an indemnity basis. 

6. Firstly, it seems to me that there are circumstances here justifying an order for costs and to repeat, the matter was listed for a particular purpose on an urgent basis, but that foreshadowed application for inspection is not being proceeded with, and frankly, the other matters that have been dealt with today could quite easily have been dealt with at the start of the hearing tomorrow.  Thus, there are circumstances justifying an order for costs.  In relation to indemnity costs though, I do not consider the circumstances here are so special or unusual that under the authorities, there should be an order for indemnity costs.  I have some sympathy with Mr Gretsas’ submission, but indemnity costs are the exception rather than the rule and to repeat, I do not consider the circumstances here warrant an indemnity costs order. 

7. Given my intimation that I am not prepared to order indemnity costs, Mr Gretsas has indicated that he seeks the sum of $450 by way of costs.  Mr Rickards, of course, appearing for himself, does not seek an order for costs.  Thus, I just need to deal with the applications of Mr Berman and Mr Gretsas.  I propose to make an order for costs, and the only issue for me is the amount.  I propose to order that the husband pay the sum of $300 to the wife, by way of costs thrown away, and $400 to the trustee, by way of costs thrown away, a total of $700.  The husband should have 28 days to pay those costs.

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 16 June 2009.

Associate