Gregor and Gregor and Ors

[2010] FamCA 44

FAMILY COURT OF AUSTRALIA

GREGOR & GREGOR AND ORS [2010] FamCA 44

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

APPLICANT: Ms Gregor

RESPONDENT: Mr Gregor

SECOND RESPONDENT: Mr Gregor (Snr)

THIRD RESPONDENT: Mrs Gregor (Snr)

FOURTH RESPONDENT: C Investments Pty Limited

FILE NUMBER: SYC 2951 of 2009

DATE DELIVERED: 20 January 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 20 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bridger

SOLICITOR FOR THE APPLICANT: Jo Anna FS Moy

COUNSEL FOR THE RESPONDENT: Ms Chappelle

SOLICITOR FOR THE RESPONDENT: McLachlan Thorpe Partners

COUNSEL FOR THE SECOND AND THIRD RESPONDENT: Mr Kirk S.C.

SOLICITOR FOR THE SECOND AND THIRD RESPONDENT: Malcolm Johns and Company

COUNSEL FOR THE FOURTH RESPONDENT: Mr Campton

SOLICITOR FOR THE FOURTH RESPONDENT: Newnhams Solicitors

Orders

1. That these proceedings are adjourned to 5 February 2010 at 10am before

   
   

   Justice Cohen.

2. That the costs of all parties thrown away by the adjournment today are reserved to be determined upon hearing of the applications on 5 February 2010.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2951 of 2009

MS GREGOR

Applicant

And

MR GREGOR

Respondent

And

MR GREGOR (SNR)

Second Respondent

And

MRS GREGOR (SNR)

Third Respondent

And

C INVESTMENTS PTY LIMITED

Fourth Respondent

REASONS FOR JUDGMENT

1. In these proceedings the matter has been adjourned.  There is a number of reasons why the matter might have been adjourned.  Ultimately, despite my stand that the matter was likely to be adjourned for a different reason, the matter was adjourned because I didn’t have time to hear it. 

2. The reason why I had considered adjourning the matter and, I must say, was likely to have adjourned the matter was because the matter was listed at a time of the year during which it is well known that legal practitioners take holidays and those legal practitioners who had acted for the wife and the wife wished to engage to act for her were not informed of the date the matter was listed for hearing. 

3. No inquiries were made of the legal practitioners despite the fact that the matter was only likely to be able to be heard by me and it is well known that I am at pains to act like a Family Court ought to act; that is, to consider the personal circumstances of people who have families during Christmas and Christmas holiday periods. I think that lawyers are as entitled to consideration in that respect as anybody else might be.  But the reality of the application is this: 

   
   

   Mr Kirk SC argued, because of a late change in tactics by the wife and a failure by those advising the wife to inform his instructing solicitor of that change in tactics and of the unavailability of their counsel, that he has been briefed in circumstances where there was no need to have briefed him. 

4. It would have been a much more appropriate option had his solicitor been informed to have agreed to an adjournment without incurring the costs involved in having him appear.  That argument is a strong one.  However, I am of the view that it should be looked at in the light of the outcome of the case and all of the facts in relation to costs should then be considered, as the Act requires me to do.

5. After all, one of the requirements of the Act is that in considering an application for costs the Court must decide whether one of the parties has been wholly unsuccessful.  At this stage one cannot make such a decision.  That does not mean I could not make an order for costs now, but it does mean, in my view, in this instance that it is preferable to wait and to reserve costs until the outcome of the proceedings before me are known. That is the course I shall take and I shall order that the parties’ costs thrown away by the adjournment today to be reserved,  that is; all parties’ costs are reserved.

6. I will adjourn this matter until 10 am on 5 February.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              1 February 2010