GULL & GULL

[2017] FamCA 424

FAMILY COURT OF AUSTRALIA

GULL & GULL [2017] FamCA 424

FAMILY LAW – application to review orders made by a Registrar – applicant husband’s application granted – respondent wife’s application dismissed.

Family Law Rules 2004 (Cth), rr 18.06(2), 18.08(1), 18.10(1), 18.10(2), ch 19

APPLICANT:   Mr Gull

RESPONDENT:  Ms Gull

FILE NUMBER: MLC 10581 of 2008

DATE DELIVERED: 16 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 6 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Emma Jeans

SOLICITOR FOR THE APPLICANT: Vernon De Gama & Associates

THE RESPONDENT: In person

Orders

1. The applicant husband be granted leave for the late filing of his Application for Review of the order of a Registrar in the Application in a Case filed 19 December 2016.

2. The orders made by Registrar Mestrovic on 12 October 2016 be discharged.

3. On or before 30 June 2017, the applicant husband file and serve an Amended Itemised Costs Account, such costs account to be limited to party/party costs of and incidental to the application of the husband contained in paragraph 1(f) of the Amended Application filed 9 May 2012.

4. In the event that the respondent requires production of file notes with respect to items in dispute such as conference and any telephone attendances, such request be limited to the timeframe referred to in paragraph 3 hereof.

5. On or before 28 July 2017, the respondent wife file and serve an Amended Notice Disputing Itemised Costs Account.

6. Paragraphs 1, 2, 3 and 5 of the respondent wife’s Response to an Application in a Case filed 7 March 2017 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gull & Gull 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 10581 of 2008

Mr Gull

Applicant

And

Ms Gull

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant husband brings an Application in a Case for review of orders made by Registrar Mestrovic on 12 October 2016. The application was made out of time and implicit in the Application in a Case is an application to extend the time fixed under the Family Law Rules 2004 (Cth) (“the Rules”) for the filing of such an application.

2. The application to extend the time and the application for review of the orders made by the Registrar are opposed by the respondent wife.

3. The orders the subject of the review were procedural orders made by the Registrar at a settlement conference (see Rule 19.28 Settlement conference Family Law Rules 2004) where both parties were self-represented.

4. The real dispute concerns the date from which the husband’s costs, as ordered by the Full Court of the Family Court on 22 February 2016, should be assessed.

5. The settlement conference was convened following an order made by the Full Court on 22 February 2016 for certain costs to be assessed pursuant to Chapter 19 of the Rules.

6. A taxation has not yet taken place.

7. The applicant and the respondent take issue with the Registrar’s interpretation of the Full Court order in her Reasons for Orders made 12 October 2016 as to the ambit of the time frame for the costs to be assessed.

8. Order 2 of the Full Court orders made 22 February 2016 is as follows:

   Paragraph 1(b) of the orders made on 8 June 2012 be set aside and in lieu it is ordered that the wife pay the husband’s costs of and incidental to the application of the husband contained in paragraph 1(f) of the Amended Application filed 9 May 2012. Such costs to be assessed pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).

9. Paragraph 1(f) of the husband’s Amended Application in a Case filed 9 May 2012 was in the following terms:

   That the Wife be directed to pay to the Husband, the Husband’s costs of this application and such other costs incurred in enforcing these orders on a solicitor client basis and that such costs be deducted from the Wife’s entitlement payable to the Wife pursuant to the orders made by Justice Mushin on 19 March 2008 and as varied by the orders made by the full court on 30 April 2009 and by these orders.

10. The orders set aside by the Full Court were cost orders made by the primary judge (Cronin J) which provided:

    (1)That paragraphs 2 and 3 of the orders made 19 March 2008 (as varied by the orders of the Full Court on 30 April 2009) be varied such that, from the wife’s cash entitlement from the funds repatriated from India to Australia, $111,435.00 be paid to the husband being made up as follows:

    …

    (a)$60,000 by way of costs;

    …

    (d)$555.00 to discharge the costs order made on 6 October 2009.

Orders subject to review

1. The orders of the Registrar made on 12 October 2016 at the settlement conference which are the subject of review are as follows:

   (1)On or before 19 December 2016 the Applicant file and serve an Amended Itemised Costs Account, such Costs Account to be limited to party/party costs arising out of the Application in a Case filed on 10 January 2011 as Amended on 9 May 2012 through to 8 June 2012.

   (2)On or before 6 February 2017 the Respondent file and serve an Amended Notice Disputing Itemised Costs Account.

   (3)In the event that the Respondent requires production of file notes with respect to items in dispute such as conference and any telephone attendances, such request be limited to the time-frame referred to in paragraph 1 hereof.

   (4)In the event that either party files a Review and/or Application in a Case with respect to limitations imposed by paragraph 1 hereof, then these orders are stayed pending the outcome of such a Review or Application.

2. In her comprehensive Reasons for Orders the Registrar expressed the view at paragraph 15:

   I fail to see how any costs prior to January 2011, save as to a few items of correspondence and taking instructions for filing, can be allowed on either taxation or preliminary assessment.

Background

1. The parties married in India in 1990.  There is a dispute about the date of separation which occurred between 2001 and 2004. There is one adult child of the marriage aged 23.

2. Proceedings commenced in this Court when the wife applied for both parenting and property orders on 23 September 2004.

3. Final orders in relation to property and financial issues were made by Mushin J on 19 March 2008.

4. The wife appealed those orders and the Full Court of this Court heard the appeal on 9 October 2008 and dismissed it on 30 April 2009 although very minor adjustments were made to the mathematical calculations of Mushin J.

5. The wife then sought special leave of the High Court of Australia.  The High Court dismissed the application because it failed to identify a question of law to be determined.

6. The wife had commenced injunctive proceedings in India in February 2005.  An order made by the High Court of Judicature in City C had the effect that money could not be removed from India from the various bank accounts of the parties.  That order was not discharged until January 2010 and by that time the High Court of Australia had rejected the last avenue of appeal by the wife.

7. Before Cronin J on 30 May 2012, the husband made an application pursuant to s 79A(1)(c) of the Family Law Act 1975 (Cth) (“The Act”) to set aside the final property orders because of the wife’s failure to carry out obligations imposed on her under the orders. The husband also sought an order for costs against the wife.

8. The wife appealed orders 1 and 2 made by Cronin J on 8 June 2008.  Before the judgment of the Full Court was delivered, the husband was directed to file and serve a detailed Bill of Costs (Annexure BG18 to the husband’s affidavit filed 24 March 2017).  An itemised Bill of Costs was filed with the Full Court on 24 February 2014.  The scope of that Itemised Bill of Costs was for the period subsequent to 30 April 2009 until 30 May 2012 relating to property matters.  However it was pursuant to a Costs Agreement between the husband and his solicitors (Annexure BG 20 to the husband’s affidavit filed 24 March 2017).

9. The background to the appeal is set out in the Reasons for Judgment of the Full Court delivered 22 February 2016.  The Full Court noted that the interactions between the parties have been characterised by high conflict and litigation.  The Full Court determined the wife’s appeal against orders 1 and 2 made by Cronin J on 8 June 2012.  The wife’s appeal was allowed in part but for the purposes of this application, it is the costs order made by the Full Court and previously outlined which is relevant. 

Documents relied upon

1. The applicant relied upon the following documents:

   ·Application in a Case filed 19 December 2016;

   ·Husband’s affidavit filed 19 December 2016;

   ·Husband’s affidavit filed 24 March 2017;

   ·Reasons for Judgment delivered by Cronin J dated 8 June 2012; and

   ·Reasons for Judgment delivered by the Full Court dated 22 February 2016.

2. The respondent relied upon the following documents:

   ·Response to an Application in a Case filed 7 March 2017;

   ·Wife’s affidavit filed 7 March 2017;

   ·Wife’s affidavit filed 31 March 2017;

   ·Response filed 24 January 2011; and

   ·Wife’s affidavit filed 24 January 2011.

Application to extend time

1. An application for review of an order of a Registrar must be made within seven days after the Registrar makes the order.[1]

   [1] Family Law Rules 2004 (Cth) r 18.08(1), Table 18.6, Item 4; r 18.06(2), Table 18.5, Item 32.

2. The application was filed approximately 2 months after the time limit specified under the Rules.

3. The applicant seeks to extend the time for the application for the filing of the review of orders on the following grounds set out in his affidavit at paragraphs 35 and 36:

   I say that the orders reviewed are dated 12 October 2016.  At the time when those orders were made I was acting in person.  I received the orders dated 12 October 2016 by an email sent to me by the Court on 24 October 2016.  I was not able to understand the orders given there being no reasons provided for the making of those orders.  Now produced to me and marked “BG-15” is a copy, of that correspondence.

   My solicitor who was previously acting on my behalf was overseas at the relevant time and returned to work on 2 November 2016.  I was able to make an appointment to see him and obtain advise [sic] only some time in mid November 2016 as he was reported to be unwell for some time on his return to work.  With the help of my previous solicitor, I was able to seek Counsels advise [sic] only some time on 9 December 2016 and have made this application for review as expeditiously as possible thereafter.

4. The respondent essentially submitted that the applicant filed his application for review two months after the orders were made and that the applicant has no relevant grounds for extension of time to file the review application.

5. Counsel for the husband pointed out that paragraph 27 of the wife’s affidavit filed 7 March 2017 states that the starting point is 9 May 2012 and not 10 January 2011 and that paragraph 3 of the wife’s Response seeks that the Bill of Costs be taxed from 9 May 2012.  Accordingly the wife can hardly oppose the husband’s application in circumstances where she is in fact also seeking a review of the decision.

Conclusion about extension of time application

1. Having regard to the fact that the husband had difficulties accessing legal advice and that the wife in her Response is also seeking a change to the procedural orders, I am satisfied that it is in the interests of justice to grant the application for the extension of time for the filing of the husband’s Application in a Case for the review of the orders.

Application for review

1. The applicant husband seeks:

   1.    That paragraph 1 of the orders of 12 October 2016 be discharged.

   2.    That the Bill of Costs filed 19 July 2016 be taxed as provided by the order of the Full Court of 22^nd February 2016.

   3.    The Respondent pay the Applicants [sic] cost of this Review.

2. However in the husband’s Case Outline, his proposals are:

   a)    To discharge the Registrar’s orders dated 12 October 2016.

   b)   That his costs (as awarded by the Full Court on 22 February 2016) be assessed from 5 May 2009, being the date on which attendances on the wife commenced with respect to complying with the Order of Mushin J dated 19 March 2008.

   c)   In the alternative to (b), the husband’s costs (as awarded by the Full Court on 22 February 2016) be assessed from 3 December 2009 when instructions were provided to the husband’s solicitors to make the applications filed 8 December 2009.

3. The respondent wife seeks:

   1.    That the orders sought by the wife in the response application filed herein be allowed;

   2.    That the orders sought by the husband in Application in a Case be dismissed;

   3.    That the Bill of Costs be taxed from 9 May 2012 as ordered by the Full Court on 22 February 2016;

   4.    That the applicant pay the Respondent’s cost [sic];

   5.    Any such Orders as the Court deems fit and proper in the Circumstances.

The relevant law

1. Under r 18.10(1) of the Rules, the Court must hear an application for review of a decision by a Judicial Registrar, Registrar or Deputy Registrar as an original hearing. In an original hearing, the Court rehears the whole matter and does not simply review the decision of the original court.

2. Rule 18.10(2) provides for the evidence which the Court may receive on an application for review.  The parties relied upon the documents outlined above.

3. The hearing proceeded by way of submissions only.

Submissions

Submissions for the husband

1. Counsel for the husband submitted at paragraphs 46 to 57 of the husband’s case outline that:

   46.The Full Court did not dissent from the findings made by Cronin J regarding the conduct of the wife in her non compliance with the 2008 Final Orders.  This much can be seen from paragraph 13 of the judgment wherein it says “There is no doubt that the wife deliberately delayed in complying with the orders of Mushin J.”

   47.It is submitted that the aspect of Cronin J’s cost order that troubled the Full Court was the arbitrary quantification of the costs not the period of time over which they should be assessed.

   48.The Full Court said the following at paragraph 40 of the judgment:

   “The quantification of the order by Cronin J, in effect, made a cost order which was partly a solicitor/client order and partly an indemnity costs order.  His Honour interpreted Mushin J’s order as a solicitor/client order although there was nothing in the order itself which would necessarily lead to that conclusion.  The individual complaints made by the wife about the bill of costs itself are to some extent irrelevant as in accordance with our earlier determination it will be necessary for there to be an assessment of costs on a party/party basis by a Registrar.”

   49.It is clear from the manner in which the husband framed his application in paragraph 1(f) that he was not only seeking costs of the application but “such other costs incurred in enforcing these orders”, being the costs he had incurred in enforcing the 2008 Final Orders of Mushin J since 2009.  The same cost order was consistently sought by the husband in his applications filed 8 December 2009, 22 June 2010, 10 January 2011 and 9 May 2012. (original emphasis)

   50.The Full Court accepted that Cronin J was entitled to make orders “cleaning up” old cost orders provided they were soundly based.  The concern the Full Court had, however, was that some of the costs claimed by the husband appeared to relate to parenting matters (see paragraph 31 of the Full Court’s judgment).

   51.The Full Court was not critical of the period that Cronin J was looking at when assessing the husband’s costs (being from 2009 to the date of the hearing) only the quantum of such costs.  This much can be seen from paragraph 38 of the Full Court’s judgment wherein the following is said:

   “However, any adjustment which we might make in relation to child matters could not properly reflect the generality of his Honour’s estimate, and the inclusion of the child component necessitates a proper assessment of costs on a party party basis by the solicitors providing an itemised account to the wife.  Should there be a dispute then an assessment would take place by a Registrar.”

   52.Further, at paragraph 57 of the judgment the Full Court also say, inter alia:

   “This again raised a situation where it is asserted that the figure that His Honour settled upon as to quantum of costs incorporated matters relating to extraneous applications to the one before him.  That is a matter which if it is established could be dealt with on assessment by a Registrar.”

   53.The order made by the Full Court was delivered after the Full Court had regard to a professionally drawn Bill of Costs filed by the husband at the direction of the Full Court.  The Full Court was fully appraised as to the period of time over which the husband was seeking his costs when revisiting the relevant cost order.

   54.As was open to Cronin J, the Full Court could have confined the period over which the husband’s costs were to be assessed.  This could arguably have been done by, for example, removing the words “the application of the husband contained in paragraph 1(f) of” from order 2.  The Full Court, however, did not do this, and granted the husband the order that he had been seeking since 2009 (save for the mode of calculation of those costs). (original emphasis)

   55.Furthermore, the Full Court’s order awarded costs to the husband “of an incidental to”[sic] the application contained in paragraph 1(f). (original emphasis)

   56.The genesis of the husband’s application of 9 May 2012 was the applications of 8 December 2009, 22 June 2010 and 10 January 2011.

   57.Notwithstanding the husband consolidating his application on 10 January 2011 (pursuant to the 14 December 2010 orders) thereby dismissing his previous applications, Mushin J specifically reserved “all questions of costs”.  The costs prior to 10 January 2011 remained very much a live issue in the proceeding, as can be seen from both Cronin J’s and the Full Court’s judgment. (original emphasis)

Submissions of the wife

1. The wife submitted that she sought to maintain the orders made by the Registrar but then sought “that the Bill of Costs be taxed from 9 May 2012 as ordered by the Full Court on 22 February 2016.”  

Conclusion

1. This review is conducted as a rehearing and there is considerable force in the submissions of counsel for the applicant.  I reject the respondent’s application that the husband’s Bill of Costs be taxed from 9 May 2012 as this was not ordered by the Full Court.

2. I accept the submissions made in the Case Outline on behalf of the husband. 

3. Order 2 of the Full Court was made after having regard to the Itemised Bill of Costs dated 21 February 2014 relating to property matters filed by the husband at the direction of the Full Court but drawn on the basis of a Costs Agreement (Annexure 12 of the husband’s affidavit filed 19 December 2016).

4. At paragraph 16 of her Reasons for Orders the Registrar refers to:

   the Bill of Costs located on the Full Court file dated 21 February 2014 which states that it is for the period subsequent to 30 April 2009 up until 30 May 2012 relating to property matters pursuant to the cost agreement entered into between the applicant and the law practice commencing with item 1 at 1 May 2009 claiming a total sum of $71,363.25 with additional items for drawing and engrossing the Bill making a total of $73,694.25.

5. However the Registrar goes on to state that :

   On the balance of probabilities, when the matter was before Justice Cronin this Bill did not exist as the date of the document is 21 February 2014 (unless there was another in taxable form) whereas the hearing before Justice Cronin concluded on 30 May 2012 and reasons for judgement were delivered on 8 June 2012.

1. The Full Court in determining the appeal discussed the costs orders under Grounds 6 and 7 and referred to the fact that the primary judge was entitled to “clean up” old costs orders and to make an order “as to costs”, as opposed to “for costs” because his Honour was concerned to avoid further litigation for the parties. 

2. However the Full Court stated at paragraph 34 that “[t]o the extent that matters relating to the child application were involved, his Honour’s order appears to have miscarried in part.”

3. At paragraph 38 the Full Court said:

   However, any adjustment which we might make in relation to child matters could not properly reflect the generality of his Honour’s estimate, and the inclusion of the child component necessitates a proper assessment of costs on a party/party basis by the solicitors providing an itemised account to the wife. Should there be a dispute then an assessment would take place by a Registrar.

4. At paragraph 40 the Full Court said:

   The quantification of the order by Cronin J, in effect, made a costs order which was partly a solicitor/client order and partly an indemnity costs order.  His honour interpreted Mushin J’s order as a solicitor/client order although there was nothing in the order itself which would necessarily lead to that conclusion. The individual complaints made by the wife about the bill of costs itself are to some extent irrelevant as in accordance with our earlier determination it will be necessary for there to be an assessment of costs on a party/party basis by a registrar. Thus, we find merit in grounds 6 and 7.

5. Order 2 of the Full Court referred to the husband’s costs of and incidental to the application of the husband contained in paragraph 1(f) of the Amended Application filed 9 May 2012. It is these costs which the Full Court ordered to be assessed pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).

6. There was no issue raised in the appeal regarding the period of time for the costs claimed in paragraph 1(f) of the husband’s Amended Application filed 9 May 2012.  

7. The issue between the parties really concerns the Registrar’s interpretation in her Reasons for Order of the scope of Order 2 made by the Full Court on 22 February 2016.

8. As this is a rehearing, I am satisfied that it is appropriate to discharge the orders of the Registrar and to make procedural orders.

9. The Full Court on 22 February 2016 made an order that the husband’s costs of and incidental to the application of the husband contained in paragraph 1(f ) of the Amended Application filed 9 May 2012 be assessed pursuant to Chapter 19 of the Family Law Rules 2004 (Cth).

10. It is a matter for the parties to satisfy the Registrar as to what items are reasonable in the light of the order made by the Full Court.

11. I propose to make an order that the applicant file and serve an Amended Itemised Costs Account, such Costs Account to be limited to party/party costs of and incidental to the application of the husband contained in paragraph 1(f) of the Amended Application filed 9 May 2012.

12. I propose to make an order that the respondent file and serve an Amended Notice Disputing Itemised Costs Account and an order that in the event that the respondent requires production of file notes with respect to items in dispute such as conference and any telephone attendances, such request be limited to the application of the husband contained in paragraph 1 (f) of the Amended Application filed 9 May 2012. 

13. I propose to dismiss paragraphs 1, 2, 3 and 5 of the respondent’s Response to the husband’s Application in a Case filed 7 March 2017.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 16 June 2017.

Associate: 

Date:  16 June 2017