Halley and Halley
[2011] FMCAfam 289
•18 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALLEY & HALLEY | [2011] FMCAfam 289 |
| FAMILY LAW – Property proceedings – disclosure of documents – costs application. |
| Family Law Act 1975, s.117 |
| Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 46 FLR 225; 28 IPR 56 |
| Applicant: | MS HALLEY |
| Respondent: | MR HALLEY |
| File Number: | MLC 10303 of 2010 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 18 January 2011 |
| Date of Last Submission: | 18 January 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 18 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | There being no appearance by or on behalf of the Applicant |
| Solicitors for the Applicant: | Hillier Quinn Law |
| Counsel for the Respondent: | Ms Hannan of Counsel |
| Solicitors for the Respondent: | Cuthberts |
ORDERS
Within 72 hours the Wife produce the following documents to the Husband’s solicitors:
(a)The Wife’s 2008 and 2010 tax returns;
(b)The Wife’s last three superannuation statements;
(c)The Wife’s bank account statements for the last 12 months;
(d)The Wife’s last three salary slips;
(e)Bank account statements for the last two years in the children’s names or in the Wife’s name on trust for the children; and
(f)Documentary proof of the Wife’s HECS debt and how much of that debt was incurred pre-relationship and how much was incurred during the relationship.
The Wife pay the costs of the Husband’s application fixed at $2065.
That the Registrar provide a copy of the court file, the reasons and correspondence to the Legal Services Ombudsman with a request that the Legal Services Ombudsman consider the conduct of the solicitor involved.
The Wife attend the conciliation conference personally on 4 February 2010 at 9.00 am at the Ballarat Law Courts Building.
The solicitors for the Husband ensure that the Wife is served with these Orders by providing a copy of these Orders to her current solicitors and to her last known address.
IT IS NOTED that publication of this judgment under the pseudonym Halley & Halley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10303 of 2010
| MS HALLEY |
Applicant
And
| MR HALLEY |
Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
This is an application for an order for disclosure of various documents central to the question of any property adjustment orders under the Family Law Act. The orders sought are as follows:
1. That within 72 hours the Wife produce the following documents to the Husband’s solicitors:
a) The Wife’s 2008 and 2010 tax returns
b) The Wife’s last three superannuation statements
c) The Wife’s bank account statements for the last 12 months
d) The Wife’s last three salary slips
e) Bank account statements for the last two years in the children’s names or in the Wife’s name on trust for the children
f) Documentary proof of the Wife’s HECS debt and how much of that debt was incurred pre relationship and how much was incurred during the relationship
2. That the Wife pay the costs of the Husband’s application on an indemnity basis.
There is no question as to the relevance of the documents that are sought. The documents appear to be the types of documents that most people would have in their folders in their own homes, and if they are not immediately within the wife’s possession, they are documents that can be easily obtained.
If there were any difficulty in obtaining the documents, one would expect that a reasonable solicitor would write to the other party’s solicitor setting out the particular difficulty, the steps that have been undertaken and a reasonable timeframe within which disclosure will be made. This approach would ordinarily mean that the other party would not make the type of application that is brought today unless there were other time pressures. The wife’s solicitor has not taken this course and it does not appear that any steps have been taken to facilitate the disclosure of those documents. Whilst some documents have recently been provided, the list remains unsatisfied.
This is not an issue that arose unexpectedly, nor something that has only been raised before in correspondence. It was the subject of orders in the Magistrates’ Court of Victoria, prior to the matter being transferred to this Court for the last Ballarat circuit (as is the practice in many circuit locations). The country solicitors (who are very focused on the practical outcomes in proceedings) often obtain directions orders on a first return date in the state Magistrates’ Court in order to start the process of gathering all of the relevant documents before the matter is transferred to this Court. Such a practice ensures that the case has taken clear shape by the first circuit and is realistically ready for a conciliation conference between the first circuit and a potential trial on the second circuit in this Court.
This is an admirable practice which should be encouraged. It is precisely what occurred in this case and a conciliation conference is scheduled on 4 February 2011. In most property cases from circuits, if reasonable preparation has been undertaken the cases settle at the conciliation conference. It appears that the husband’s solicitors have taken all reasonable steps to ensure that the matter is properly prepared to give it every chance of settling at the conciliation conference.
Settlement at a conciliation conference saves litigants considerable sums of money not only in the preparation of trial affidavits, but also in the costs of counsel’s fees and conferences. This is a process that should be strongly encouraged. In the circumstances, it is entirely appropriate that there be orders as sought in Order (1) of the respondent’s application in a case filed on 13 January 2011. Those documents should be available to the respondent’s legal advisers at a reasonable time before the conciliation conference. This timeframe ensures that the legal advisers can give him accurate advice, that his case can be prepared as best as possible, and realistic expectations advised upon before the parties negotiate at the conciliation conference.
There has been plenty of time for these documents to have been provided. The disclosure orders were first made on 6 October 2010. Even in the absence of these orders, it must have been obvious to any reasonable practitioner that these documents are crucial for the preparation of a property case not only for tendering to the Court, but also to ensure that the husband’s solicitors are in a position to be able to give him appropriate advice without running the risk of a negligence claim.
The correspondence indicates that the documents have been sought along the way. This is not an application that has been brought unexpectedly or without warning. It does not have the indicia of an application just to run up costs, rather, the indicia of frustration from the husband’s solicitors, who want to move the case forward and contain their client’s costs.
In the circumstances, having regard to s.117 of the Family Law Act, it is entirely appropriate that the applicant pay the respondent’s costs of this application. It is a financial case. The disclosure application has been entirely successful. In reality, the application would never have been necessary had the applicant provided the documents as ordered and which would ordinarily have be provided and discovered.
I am not persuaded that the circumstances are such as to fall within the general principles applicable to the ordering of indemnity costs: see Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 46 FLR 225; 28 IPR 561.
In assessing ordinary costs, I have regard to the nature of the application and the material needed to support it. Whilst it could arguably fall within stage 2 under the schedule of costs as being an application in a case or an application for a summary judgment, this particular application is more akin to stage 7, which relates to an application for enforcement of orders. Therefore the fee ought to be $745 for the husband’s solicitors. The matter has been listed this morning and counsel has appeared. It was not clear what was going to happen today. Counsel’s fee is $1320, which is within the scale fee and reasonable for counsel to be charging in this matter.
I then turn to a further matter involving the solicitors for the wife. In this case, nobody appeared for the wife. The solicitor for the wife,
Mr Graham Taylor, sent a letter on 17 January 2011 advising that the wife intended to withdraw instructions. The letter, strangely, said:
In these circumstances, we will not be attending at Melbourne tomorrow.
It is difficult to understand why a solicitor would fail in their obligation to appear before the Court on a listed application in a matter in which they are the solicitor on the record, even if it is to seek leave to withdraw from further acting. In this case, it would be too late to withdraw simply using the mechanism in the Rules, given the notice that is required under the Rules. As yet, the wife has not lodged a Notice of Change of Address for Service appointing another solicitor or herself and removing her current solicitors.
There is no explanation in the letter as to the solicitor’s failure to appear before the Court today. In these circumstances, it is difficult to determine precisely who, as between the wife and her solicitor, ought to bear the costs of the application. Given that neither have attended, I do not embark upon an inquiry in that regard.
I have considered whether or not I should order the solicitor to appear before the Court to show cause why they should not be charged with contempt for their failure earlier to appear. However, the nature of the matter does not appear to reach that level of seriousness, having regard to the modest inconvenience it has caused to the other party and the administration of justice. Whilst it is an affront to the Court, it is a matter of only modest weight in the context of this case. However, it appears to be a serious disregard of professional obligations and a matter that should be referred to the Legal Services Ombudsman.
It is clear that the husband wants to progress the matter to a resolution as soon as is reasonable. The failure of the wife or her solicitor to attend today leaves the Court with concerns about whether or not there will be attendances at the conciliation conference. It is appropriate that the conciliation conference be utilised to its maximum advantage. I will order that the wife attend the conciliation conference personally.
It is appropriate for the husband’s solicitors to ensure that the wife is served with this Order not only by providing a copy to her current solicitors, but having a copy sent to her last known address so that it comes to her attention.
I therefore make orders accordingly.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 18 January 2011
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