G and G

[2008] FCWA 54

[2008] FCWA 54

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	G and G [2008] FCWA 54
CORAM	:	CRISFORD J
HEARD	:	10 - 12 DECEMBER 2007, 6 MARCH 2008 AND WRITTEN SUBMISSIONS (2 MAY 2008)
DELIVERED	:	16 MAY 2008
FILE NO/S	:	PT 3376 of 2004
BETWEEN	:	G Applicant/Wife
AND
G Respondent/Husband
Catchwords:

Costs - adjournment required due to unavailability of witness - no prior notice given - loss of hearing time

Legislation:

Family Law Act 1975, s 117

Category: Not Reportable

[2008] FCWA 54

Representation:

Counsel:

Applicant	:	Mr G Page SC
Respondent	:	Mr P Dowding SC

Solicitors:

Applicant	:	Leach Legal
Respondent	:	Paterson & Dowding

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

Collins and Collins (1985) FLC 91-603
Fitzgerald v Fish (2005) 33 Fam LR 123
I and I (No 2) (1995) FLC 92-625

[2008] FCWA 54

1 I am required to determine the husband’s application for costs for legal fees

incurred in respect of a half-day adjournment obtained by the wife on the first day of
the trial.

2 At paragraphs 18 to 19 of my judgment delivered 3 April 2008 I noted:

“[Ms B] having, it could be surmised, spent most of her Sunday, 9 December 2007 in [the Eastern states] preparing her second report, was not available in a timely fashion to give evidence on 10 December 2007 in Perth. She was the last witness for the wife. The wife’s counsel was unwilling to allow the husband to be interposed so his case could start even on largely uncontentious issues without any delay and loss of time. This then necessitated an adjournment of the case until the following day. The husband seeks his costs thrown away for the time lost as a result of [Ms B]’s unavailability.

Both counsel made brief oral submissions. The husband’s counsel provided the Court with written submissions the following day. Without more, the husband’s position persuades me that this is a discreet issue in which, in the exercise of my discretion taking into account s 117 (2A) of the Act, a costs order should be made. However in order to allow the wife procedural fairness I intend to give her an opportunity to respond to the written submissions of the husband dated 10 December 2007.”

3 I received written submissions from the wife on 2 May 2008.

4 The trial was heard on 10 and 11 December 2007. On the first day of the trial,

after the luncheon adjournment and after the wife had completed her evidence, the wife’s counsel sought an adjournment of the proceedings on the basis that the wife’s final witness, [Ms B] was not available, and that he was not in a position to cross- examine the husband.

5 After hearing submissions from both parties I granted the adjournment and

consequently the first day of trial was concluded at approximately 2:40 pm. At the time of granting the adjournment, the husband’s counsel made an application for costs, which the wife’s counsel opposed.

Law
6	Pursuant to s 117(1) of the Family Law Act 1975, subject to subsection (2), each party to a proceeding under the Act shall bear his or her own costs. Subsection 2 allows the Court, subject to subsection (2A), to make such a costs order it considers just if the Court is of the opinion that there are circumstances that justify it in doing so.
7	In considering what order (if any) should be made under subsection (2) the Court
shall have regard to the following matters as stated in subsection (2A):

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

[2008] FCWA 54

(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.

8 The Full Court in Collins and Collins (1985) FLC 91-603 confirmed that the discretion conferred by s 117 is a “broad” one, and the factors in s 117(2A) are not to be read in a restrictive way. The Full Court in Fitzgerald v Fish (2005) 33 Fam LR 123 also made clear that any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs. Nevertheless, the Full Court previously said in I and I (No 2) (1995) FLC 92-625 at 82,277 the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine the overall circumstances justify the making of an order for costs”.

Discussion

9 The husband’s costs application is a very discrete issue. The amount sought

relates to only about a quarter of a two day trial. Therefore many of the factors referred to in s 117 (2A) are of little relevance. The crux of this application relates to s 117(2A)(c), namely the conduct of the proceedings on the part of the wife. However, it is relevant to note that both parties have access to funds as a consequence of the proceedings.

10 The husband is critical of the wife’s counsel’s conduct in relation to seeking the adjournment, particularly for the following reasons:

• the adjournment should have been sought prior to the luncheon adjournment as the wife’s counsel would have been aware that [Ms B] was unavailable to give evidence at this time;

• at no time was the husband informed of the anticipated time of arrival of [Ms B];

[2008] FCWA 54

• the wife did not seek to have [Ms B] give her evidence by electronic means; and

• the husband’s counsel was not consulted in relation to the foreshadowed adjournment.

11 As a result of the unexpected adjournment the husband argues he incurred legal

fees for work carried out throughout the luncheon adjournment relating to [Ms B]’s report which had only been provided to the husband’s legal advisors just after the commencement of the trial.

12 According to the wife’s counsel the unavailability of [Ms B] was largely due to

the anticipation that the wife’s evidence would take up the whole of the first day. As a result of this, and the purported difficulties of [Ms B] travelling on a Sunday, arrangements were made for her to travel to Perth on the first day of the trial to commence her evidence on the second day.

13 Further, similar to the criticism raised by the husband relating to the late

provision of expert reports, the wife says the adjournment was necessary as a result late evidence provided by the husband. She says the adjournment was needed to allow her legal advisors to consult with [Ms B] on the Monday afternoon, during the adjournment period, in relation to forensic evidence served on the wife by the husband the Friday before the trial, and also to consult in relation to issues of accounting and auditing of the company of which the parties were shareholders.

14 I did note in my judgment that “despite the length of time each party has had to

marshal evidence, for one reason or another, the experts of both parties were providing
reports to the Court in a singularly ad hoc fashion almost to the conclusion of trial.”

15 At the time of seeking the adjournment the husband’s counsel argued that if

[Ms B] could not be available then the matter should still proceed by way of cross- examination of his client. The wife’s counsel was persistent in pursuing the adjournment. He argued that he would be forensically disadvantaged in cross- examining the husband prior to [Ms B]’s evidence. In her written submissions dated 1 May 2008 the wife says that it was clear at the commencement of the trial that there would be few issues to cross-examine the husband upon other than propositions raised by [Ms B]. She argues that this was subsequently proven by the cross-examination that took place the following day. The wife says that she had no obligation to proceed to cross-examine the husband before the close of her case and I accept that.

Conclusion

16 I acknowledge that the adjournment was only for a relatively short period during

a trial which was scheduled to run for three days, but which actually concluded after two days. However as I stated to the parties at the trial there were other cases waiting in the wings. In fact, there are many cases waiting for trial dates dependent on the progression of the trials with a prior listing. It is the nature of the rolling trial list employed by the Court. Therefore any delay, despite being within a case’s scheduled time for trial, causes delays to the hearing of other cases.

[2008] FCWA 54

17 While I understand that it is not always possible to definitively co-ordinate the

availability of witnesses, especially when they are arriving from another State, [Ms B]’s late arrival was known prior to the commencement of the trial and it appears, deliberately not advised to the opposing side or to the Court.

18 The Court lost half a day of anticipated trial time. In my opinion, any delay of

the Court cannot be considered lightly. The wife’s counsel accepted at the time of granting the adjournment that the proceedings had arrived at this position because the wife’s witness was not available. Consequently, when I take into account:

• the failure of the wife to have her witnesses available as required; and

• the failure to notify the Court and the other side in a timely fashion of the need to seek an adjournment

I consider such conduct as an appropriate matter to allow an exercise of

my discretion as anticipated by s 117(2A) of the Act.

19 The husband seeks costs on an indemnity basis of $5,518, or $4,732.40 if the

Court finds it inappropriate to order indemnity costs. I do not consider indemnity costs are appropriate. The costs include the services of senior counsel, junior counsel, instructing solicitor, and assisting solicitor. I agree it is appropriate that a costs order be made but not in the amount sought by the husband.

20 I consider it appropriate that the wife contribute $1,000 towards the husband’s

costs.

I certify that the preceding [20] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate