Greta & Greta

[2008] FamCA 29

FAMILY COURT OF AUSTRALIA

GRETA & GRETA AND ANOR [2008] FamCA 29

FAMILY LAW – COSTS – Between parties – Reserved

Family Law Act 1975 (Cth)

APPLICANT: Mr D Greta

RESPONDENTS: Ms H Greta & Ms J Greta

FILE NUMBER: SYC 3446 of 2007

DATE DELIVERED: 25 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: By way of written submissions

JUDGMENT OF: Cronin J

HEARING DATE: By way of written Submissions

SUBMISSIONS RECEIVED FROM

COUNSEL FOR THE APPLICANT: Mr Williams SC with Mr Goodman

SOLICITOR FOR THE APPLICANT: Premium Advisory

COUNSEL FOR THE RESPONDENT: Mr Maiden SC

SOLICITOR FOR THE RESPONDENT: Clinch Neville Long Letherbarrow

Orders made in chambers

That upon reading the submissions on behalf of each party

IT IS ORDERED:

1. That the costs of Mr D Greta in respect of the summary dismissal application together with the costs associated with the submission for costs arising there from are reserved to be determined by the trial judge.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3446 of 2007

MR D GRETA  

Applicant

And

MS H GRETA & MS J GRETA

Respondents

REASONS FOR COSTS JUDGMENT

1. On 2 November 2007, I heard an application for summary dismissal of a substantive application brought under s 79A of the Family Law Act1975 (Cth) (“the Act”). I gave reasons for judgment on 20 November 2007.

2. I ordered that the summary dismissal application be dismissed and made provision for the parties to file written submissions in relation to costs. 

3. Before turning to the issue of costs, there has been a question raised in the various submissions about whether there is a need to amend the orders under the slip rule to make clear that the cross-vesting application of the proceedings to the Supreme Court has not been dismissed.

4. Pursuant to paragraph 2 of the orders that I made, the substantive proceedings have been adjourned to a final trial hearing.  I have otherwise dismissed all interim proceedings.  The interim proceedings included an application for summary dismissal and that the cross-vesting application issue was not ventilated.  The cross-vesting issue as a substantive proceeding is still alive and can be determined at the final trial should that be necessary.  Accordingly, I see no reason to amend the orders nor do I see any inconsistency between paragraph 1 and 2 thereof.

5. In the reasons for judgment to which I have referred, I describe the circumstances of the case as most unusual.  At paragraph 59 of my reasons, I pointed out that I was dealing with a summary dismissal application in which the applicant had to show that the respondent’s case was doomed to fail and that on the authorities to which I referred, there was at least an arguable case.

6. The application that I am now determining in chambers relates to the costs sought by the successful respondent.  His application for costs includes indemnity costs.

7. I shall not traverse the facts again because they are fully set out in the reasons that I gave on 20 November 2007.

8. The submissions of the successful respondent were signed by senior and junior counsel on 10 December 2007 and received by me that day. 

9. In those submissions, counsel referred to the fact that submissions were made by the then applicant in respect of the dismissal of the s 79A application but none concerning the dismissal of a cross-vesting application.

10. The overall submission of counsel was that the hearing of the application was unnecessary because the unsuccessful applicants ought to have consented to a course suggested by the successful respondent that, in effect, the s 79A application be dealt with in the Supreme Court of New South Wales pursuant to the cross-vesting powers of that court and that the Family Court of Australia proceedings be otherwise discontinued.

11. Counsel went on to point to the fact that the unsuccessful applicants were “wholly unsuccessful” and that their application was “hopeless”.  In their view, the application fell well short of the standard set out in the relevant authorities to which I referred in my reasons for judgment.

12. In reply, Senior Counsel for the unsuccessful applicants drew and provided submissions dated 20 December 2007 in which he pointed to the fact that the successful respondent had elected to bring the proceedings under s 79A of the Act in circumstances where there were remedies available to him in the Supreme Court of New South Wales in proceedings that he had commenced associated with the same or at least similar factual issues.

13. Senior Counsel for the unsuccessful applicants said that their summary dismissal case was not hopeless.  It was brought in circumstances where there was no direct authority of a case involving a beneficiary under a will and importantly, at a time when there were proceedings already on foot in the Supreme Court of New South Wales.

14. Of some concern was a submission relating to conduct of the successful respondent.  In my view, that issue is not relevant to the costs application but it is a matter to which I shall return. 

15. Supplementary submissions were provided by the unsuccessful applicant by their solicitor on 21 December 2007.

16. This supplementary submission related to a number of matters including the fact that the successful respondent had not particularised his application under s 79A until 30 October 2007 at which time, the summary dismissal application was already on foot.

17. Substantial amounts of work was then undertaken by counsel on both sides. 

18. Generally in response to the successful respondent’s case, the unsuccessful applicants say that the case was not wholly unsuccessful nor was it hopeless nor fell well short of the tests laid down in the summary dismissal authorities.  It is pointed out that the application was arguable and reasonable to conduct.

19. The unsuccessful applicants’ position is that the costs ought to be costs in the cause in the Family Court proceedings.

20. Dealing first with the question of indemnity costs, the Full Court in Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 said that the category of circumstances which might enliven the discretion to award indemnity costs were not closed but that the particular facts and circumstances of the case had to warrant the making of an order other than on a party and party basis. Having regard to the arguments put, I do not see this as a case where there has been some flagrant disregard for the rights of a party nor something unusual about the bringing of the case that would warrant an order for indemnity costs.

21. I turn then to the issue of the costs application itself. Section 117 of the Act requires that each party bear his or her own costs. However, if the Court is of opinion that there are circumstances that justify it doing so, the Court may make an order for costs subject to consideration of the matters set out in s 117(2A) of the Act.

22. Accordingly, the determination of any costs application is a two step process.

23. There must first be some circumstance that justifies the Court making the order. As I pointed out at the commencement of the substantive judgment, this was a most unusual case. What was unusual was the facts that gave rise to the making of the s 79A order in the first place and subsequently, the facts that led to the application under s 79A. Was this substantive application under s 79A simply unnecessary because of the Supreme Court of New South Wales proceedings? Were the unsuccessful applicants entitled to complain in a court without pleadings about the absence of particulars in the s 79A application? All of these questions remain unanswered because the task that I had to undertake was simply to determine whether or not the unsuccessful respondent’s case was doomed to fail.

24. In circumstances where I have now had the opportunity to read in part, the pleadings that were relevant, from the Supreme Court of New South Wales proceedings, there is a claim that a issue a miscarriage of justice has risen by virtue of the orders being made without notice to a potentially interested party. It is not just the fact that notice may or may not have been given to that party but that a miscarriage of justice has arisen by virtue of one of the grounds set out in s 79A.

25. Section 117(2) of the Act emphasises that there should only be a departure from the rule set out in s 117(1) if it is just. If an order for costs was made against the unsuccessful applicant and the successful respondent was ultimately unsuccessful in the substantive proceeding, the ordering of and the payment of, those costs might be seen as unjust. The converse is equally arguable. To a large degree that is the logic behind courts making orders that costs be “costs in the cause”.

26. The only time that justice would clearly permit a departure from the rule in s 117(1) in a summary dismissal application would be where it would be abundantly clear on the evidence that there was no basis at all to bring the summary dismissal application in which case, an order for costs should be contemplated.

27. This is a case in which the question of the costs should be reserved to be determined by the trial judge.  In so far as Mr D Greta is ultimately successful in the substantive application, the trial judge might contemplate that justice warranted an order for costs in those circumstances.  However, that is a matter for the trial judge.

28. The other issue about which I desire to make comment is the reference to Mr D Greta having access to and copying the court file arising out of the application and correspondence in April 2006.  The Registrar on 19 April 2006 made it clear that all parties had to be notified and their objections considered.  The letter of 5 May 2006 by Mr D Greta seems to have distracted the Registrar who on 10 May 2006 granted access to the file without the objections of the parties to the substantive proceedings being notified.  I am not acting in the capacity as a judge reviewing any decision of the Registrar but I propose to bring it to the attention of the Registry Manager that the Court needs to be vigilant about enforcing its own privacy policy.  I am not in a position to make any finding nor should I, about whether or not Mr D Greta misled the Registrar inappropriately and no doubt that will become a matter for consideration in the substantive proceedings.

I certify that the preceding Twenty Eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate

Date:  25 January 2008