Greville and Greville & Anor

[2016] FamCA 312

FAMILY COURT OF AUSTRALIA

GREVILLE & GREVILLE AND ANOR [2016] FamCA 312

FAMILY LAW – Proceedings issued inappropriately by a wife (through solicitors) where she was the subject of a VCAT Administration order – proceedings struck out.
FAMILY LAW – COSTS.

Family Law Act 1975 (Cth)

APPLICANT: Mr Greville

1^ST RESPONDENT: Ms Greville

2^ND RESPONDENT: Ms Seles

FILE NUMBER: MLC 9151 of 2014

DATE DELIVERED: 20 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT:

THE 1^ST RESPONDENT: No appearance

THE 2^ND RESPONDENT:

COUNSEL FOR THE ADMINISTRATORS OF THE ESTATE

No appearance

Ms Ainio

Orders

1. That the application initiating proceedings by Ms Greville filed 1 April 2016 and the response by Mr Greville thereto filed 14 April 2016 are both struck out.

2. That the application in a case filed on 1 April 2016 and the response thereto filed 14 April 2016 are both struck out.

3. That the wife pay the husband’s costs of the applications so struck out together with the costs of the enforcement proceedings, such costs be by agreement and failing agreement, as assessed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and solicitor appearing as counsel to attend.

2. That the enforcement application filed by the husband is adjourned to 9.00am on 5 August 2016.

3. That there be liberty to both parties to apply on short notice.

4. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

5. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

6. That Ms Seles is discharged from the proceedings.

7. That FLT Judge and B Pty Ltd are appointed as the case guardians for the wife by virtue of the order of Victoria Civil and Administrative Tribunal.

8. That there be liberty to Ms Seles to apply to have her costs fixed and determined is reserved in the event that the matter remains unresolved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Greville & Greville and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9151 of 2014

Mr Greville

Applicant

And

Ms Greville

Respondent

REASONS FOR JUDGMENT

1. Today is the return date of consolidated proceedings sensibly between Ms Greville, to whom I shall refer in these reasons as the wife, and Mr Greville, to whom I shall refer as the husband, notwithstanding they are no longer a married couple.  I set out these reasons because this particular case is messy as well as complex. 

2. Final orders were made by the court finalising all property proceedings between the husband and the wife.  In those proceedings, however, the wife had a case guardian appointed for her litigation.  A case guardian is not a party to the proceedings; he or she represents the party to the proceedings.

3. The orders provided for the payment of a lump sum to the husband by the wife and in default of payment that a real property in Suburb C be sold and the payment then be made from the proceeds along with interest.  The order was not complied with and, as a consequence, the husband brought the first of the current applications before the court today seeking enforcement. 

4. The original enforcement proceedings were brought against the case guardian.  On one view of the orders the case guardian was personally responsible for executing the various requirements of the order but, on any view, she was still only a representative of the party.

5. The parties ended up at VCAT where a formal administration order was made which left open some doubt about its extent.  That has now been clarified, by the Tribunal member indicating that his order was intended to cover all legal issues as well as financial matters that related to the wife. 

6. In the mix, however, was an application initiating proceedings brought by the wife through a firm of solicitors Rosemarie Ryan Lawyers which was filed on

   
   

   1 April 2016.  The respondent to that application was the husband and there was no reference by the wife to the fact that she had either the then apparent extant case guardian in this court or the administrator through VCAT.

7. Her application sought, in essence, that the orders made by the court on 31 August 2015 be set aside on the basis that there had been a miscarriage of justice.  It is not necessary for me to deal with the details of that save that it is now accepted by that firm of solicitors for the wife that the application should not have been issued because the wife’s affairs were under the control of the administrator.  Quite unusually, an email was sent to my associate at 5.35 pm last night indicating that Ms Ryan would attend the court and provide assistance but not appear for the wife.  That really does not matter because the administrator says that the application along with another application brought by the wife should simply be struck out.

8. The second ostensible application of the wife sought the appointment of a case guardian.  That obviously was unnecessary by virtue of the fact that the administrator had been appointed by VCAT.  Accordingly, it is only necessary for me to strike that out.  That includes therefore the initiating application and the interlocutory application, both filed on 1 April and it must follow, therefore, that the husband’s responding material to both applications can equally be struck out. 

9. That, however, has given rise to the question of the costs.  The costs sought are all inclusive and encompass not only those proceedings but also the husband’s enforcement application because he did not get his money under the August 2015 orders.

10. The application for costs by the husband is sought only against the wife but it has been suggested and Ms Ainio, on behalf of the administrator agrees she needs to get some advice as to whether or not some form of application for indemnity, either in whole or in part, should be sought against the solicitor who issued the application on behalf of the wife.  I think it makes sense to give that leave, bearing in mind that Ms Ryan is not a party to these proceedings and has not, until, presumably, now, been put on notice that the application was going to be made for costs. 

11. In relation to the costs themselves, s 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act each party shall bear their own costs unless the court is satisfied that there is justifiable reason to depart from that principle. If the court is contemplating such an order it has to take into account a number of matters, including the financial circumstance of the parties but also how they have conducted the particular litigation.

12. As I observed on the last occasion, this being the fourth time this case has been before the court, I cannot think of a better case for an order for costs than when someone has not complied with their obligations under a court order. 

13. In the circumstances it seems that it is just to make an order in favour of the husband for his costs but there is no specific amount sought at this stage and I agree with counsel for the husband that I should simply make an order that, in default of agreement, the costs be assessed. 

14. Ms Ainio, on behalf of the administrator, says that the costs order is appropriate but that it ought to be reasonable.  On that basis, I shall give the parties an opportunity to work out what is reasonable and, failing agreement, then the registrar can sort that out on a taxation basis.

15. That will also then give the administrator an opportunity to contemplate whether they pursue indemnity for the wife’s costs from someone else.  In relation to the substantive application, the administrator agrees that the final order needs to be executed and it is their usual practice to follow a certain pathway.  I think it is sensible that there be discussions as to what pragmatic steps be put in place and the court ought only enforce its orders if there is no agreement.  In this case, therefore, I shall stand the proceedings down and the parties can work that issue out but otherwise in the meantime I will make the following orders.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 April 2016.

Associate: 

Date:  5 May 2016