HARLEM & HARLEM

[2010] FamCA 144

FAMILY COURT OF AUSTRALIA

HARLEM & HARLEM [2010] FamCA 144

FAMILY LAW – WITNESSES – Fees of expert witness

APPLICANT: Ms Harlem

RESPONDENT: Mr Harlem

INTERVENOR:

FILE NUMBER: BRF 3862 of 2005

DATE DELIVERED: 29 JANUARY 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: BELL J

HEARING DATE: 8 DECEMBER 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: There was no appearance for the Applicant

COUNSEL FOR THE RESPONDENT: Mr Hackett of Counsel

SOLICITOR FOR THE RESPONDENT: Hirst & Co

SOLICITOR FOR THE INTERVENOR: Barry & Nilsson Lawyers

IT IS DECLARED:

1. The Honourable Justice Bell declares himself functus officio.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3862  of 2005

MS HARLEM

Applicant

And

MR HARLEM

Respondent

REASONS FOR JUDGMENT

1. The current application before the Court was initiated, pursuant to r 15.60, by a letter received in Chambers and dated 5 August 2009.  The correspondence, addressed to myself, was signed by Mr D of D Partners.

2. The letter summarily sought that the Court make procedural orders providing for the Husband to pay to D Partners the outstanding balance of fees associated with Mr D’s appointment in this matter as an expert witness.

3. There are a number of factors complicating this application, not least of all being the matter’s long and complex history.  

Background

1. In the initial proceedings that were before me in 2008, orders were sought that related to parenting, child support and property.  The parties to the dispute were married in September 1994 and separated in approximately October 2002.  There are two children of the marriage.

2. The matter had a five day hearing before me on 15 – 19 November 2007 for which judgment was issued on 23 May 2008.  At that time I ordered that the parties prepare draft orders, which were issued by the Court on 16 June 2008.

3. In those proceedings, Mr D, the complainant here, had been the single expert appointed by the parties, on his own account, since 2006.  However, during the first days of the trial, solicitor’s for the Husband found, on inspecting Mr D’s file, some correspondence between himself and the Wife that caused them concern.  They argued that there might be perceived bias of the single expert witness and consequently sought to have him removed.

4. I was satisfied that there may be perceived bias, but that the Husband’s objection to Mr D was merely of a technical nature.  Consequently, on 23 November 2007 Mr D was removed as a single expert, with leave given for the Wife to call Mr D as an adversarial witness.

The Appeal and New Trial

1. Both parties appealed against the orders made on 16 June 2008.  By consent, the Full Court (consisting of Coleman, May and Boland JJ), on 23 October 2008, allowed the appeal and awarded to both parties costs certificates for the costs of the appeal and the new trial.

2. The matter then came before Jordan J, who made final parenting orders by consent on 15 June 2009 and final property orders by consent on 18 August 2009.

3. Order 10 of the orders of 18 August 2009 provided that:

   “All applications be otherwise dismissed and the proceedings removed for the pending cases list.”

Application in a case of 3 October 2008

1. On 3 October 2008, prior to the hearing before the Full Court, the solicitors for the Wife filed an application in a case in this Court.

2. The application in a case sought the same relief as is sought by Mr D now.  That application, however, was withdrawn on 17 October 2008 following the receipt of evidence revealing that appeal was to be upheld by consent.  Consequently the Husband was awarded costs for that application.

3. It follows then that the issue of Mr D’s costs has not been judicially addressed.  I set out for completeness sake the body of that application in a case.

The Wife’s case

1. In it, the Wife sought leave to have the matter heard by me and sought further orders, pursuant to the slip rule or the Family Court’s inherent jurisdiction, that the Husband pay the remaining balance of Mr D’s account, along with interest that has accumulated on the unpaid amount.

2. In support of that application an affidavit was filed by Mr Adam Cooper, solicitor acting for Mr D and the Applicant Wife (in relation to the Wife his instructions related to that application only).  To the affidavit he annexes, at annexure “AKHC 2”, a copy of the transcript of proceedings which purports on its cover page to be of 16 June 2008—being the date of my final orders that have since been overturned. 

3. I note with some interest that the date recorded on each page of the transcript is that of 23 November 2007, though it seems the discussion is that which had occurred on 16 June 2008.  It is altogether likely that the date on the transcript, being the last date of trial, is simply a continuation.

4. That transcript reveals Mr D’s state of accounts as at 16 June 2008.  It seems that the Husband had already paid to D Partners a sum of just over $20,000 for his first report as a single expert.  Consent orders of 28 March 2007 provided that the Husband pay D Partners’ further costs in the first instance, with the Wife’s contribution to be determined by the trial judge.

5. The transcript further reveals that the Husband did not pay D Partners’ further costs as ordered.  Consequently, D Partners charged interest on the unpaid amount, which the Wife contended she should not have to pay given the Husband had been responsible for paying the account.

6. At that time I accepted the Wife’s submissions, and determined that the Husband should pay the interest.  This is recorded at page 8, line 23 of the transcript of proceedings annexed. 

7. Mr Cooper’s affidavit of 3 October 2008 states that in the orders that issued on 16 June 2008 no reference was made to the liability for Mr D’s fees.  The orders had issued in terms of the draft orders that had been sent to the Court following the publication of the reasons for judgment.  On the covering email it notes that the parties had both agreed to the draft orders as sent.

8. I pause to note briefly that in the same part of the transcript annexed to Mr Cooper’s affidavit, there was also mention of the party’s sharing the cost of Mr D.  Mr Cooper’s affidavit suggested that he was going to seek to rely on that statement, effectively, as judicial determination of the issue.

9. I note that there had been no submissions made in relation to the Wife’s contribution, nor any discussion about what the contribution should be prior to that statement being made.  Further, in the orders as drafted there was no mention of shared liability.  It seems a very long bow for Mr Cooper to draw, to say there I had ordered that the parties share Mr D’s costs.

10. Mr Cooper, therefore, sought to have the Husband’s liability for costs and interest (as I had referred to in Court) incorporated into those orders.

The Husband’s case

1. The Husband filed by leave a Response to an Application in a Case on 17 October 2008 when the application was before me.  The Husband sought that the Wife’s application be dismissed and the Husband’s costs of the application be paid by either the Wife, solicitors for the Wife or D Partners.

2. Two affidavits were filed in support of the Husband’s response, namely that of Ross Hirst and the husband, both filed by leave on 17 October 2008.

3. Mr Hirst’s affidavit summarily deposes to the agreement between the parties to uphold each other’s appeal and not seek costs against the other party.  Effectively, he deposes to the party’s agreement to overturn the orders of 16 June 2008.

4. The Husband deposes to, amongst other things, the payment already made to D Partners as well as the amounts and dates of subsequent accounts rendered by them. 

5. I note with interest here that the Husband paid the amount of $20,759.75 on 26 February 2006.  Mr D was not removed as a single expert until 23 November 2007.  Accounts had issued in the intervening period, arguably when Mr D was still a single expert.  No application has been made before me to enforce payment of those accounts.

6. The husband further denies any right D Partners may have to request payment from him given the removal as single expert, and deposes to an intention to bring action against them with respect to their initially representing the interests of both parties.

7. Also received from Mr Hackett, Counsel for the Husband, was an outline of argument that summarily submitted that the application was misconceived as the parties had agreed to set aside the order of 16 June 2008 and further that I was otherwise functus officio.  Mr Hackett also sought costs on an indemnity basis.

The Current Complaint

1. The current complaint was initiated through r 15.60.  Rule 15.60 states:

   Expert witness’s right to seek orders

   (1) A single expert witness may, by written request to the court, seek a procedural order to assist in carrying out the expert witness’s function.

   Note The written request may be by letter and may, for example:

   (a) ask for clarification of instructions;

   (b) relate to the questions mentioned in Division 15.5.6; or

   (c) relate to a dispute about fees.

   (2) The request must:

   (a) comply with subrule 24.01 (1); and

   (b) set out the procedural orders sought and the reason the orders are sought.

   (3) The expert witness must serve a copy of the request on each party and satisfy the court that the copy has been served.

   (4) The court may determine the request in chambers unless:

   (a) within 7 days of being served with the request, a party makes a written objection to the request being determined in chambers; or

   (b) the court decides that an oral hearing is necessary.

2. I digress briefly to note that while r 15.60 allows as single expert to bring a matter to the attention of the Court by way of letter, it is, as it always is, inappropriate to correspond directly with a judicial officer.  Notwithstanding that fact, the letter was received in Chambers and forwarded on to the Registrar for his further attention.

3. On 5 August 2009, pursuant to r 15.60(4)(a), a written objection was received by the Court from the solicitors for the Husband.  This letter is dated 5 June 2009, however such dating is presumably in error as it annexes Mr D’s letter of 5 August 2009.  No issue turns on the dating of the letter, I merely include the observation for completeness sake.  The effect of the letter was that the Husband intended to oppose the relief sought by Mr D and sought to have the matter listed for determination.

4. Matter could not be listed before me until 8 December 2009.  At that time Mr Cooper for D Partners and the Wife and Mr Hirst for the Husband appeared.

Argument for the Complainants

1. No written submissions were handed up on 8 December 2009.

2. Mr Cooper firstly submitted that Mr D has a right to bring his complaint by way of letter under r 15.60, notwithstanding the fact the rule relates to a ‘single expert witness’, which Mr D is no longer. 

3. He argues that this Court should apply rr 1.09 and dispense with a strict interpretation of the rules given the special circumstances of this case. 

4. Rule 1.09 states:

   “1.09 Procedural orders in cases of doubt or difficulty

   If the court is satisfied that:

   (a) a legislative provision does not provide a practice or procedure; or

   (b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;

   it may make such orders as it considers necessary.”

5. It was suggested by Mr Cooper that the factual matrix of this matter is such that Mr D is left without recourse in this Court, though he should be entitled to it.  Thus he should be allowed to bring a complaint under r 15.60 by virtue of r 1.09.

Argument for the Husband

1. It is the Husband’s position that this Court is functus officio and has no jurisdiction to deal with Mr D’s complaint.  He suggests that the effect of the Full Court decision is that it wipes the orders made by myself and the proceedings directions, and the matter starts afresh.

2. It was further submitted for the Husband that Mr D is not a single expert within the meaning of the rules, but really the Wife’s witness alone.  Therefore if an application were to be made for costs, it was required to be made in accordance with the statute, being r 19.08, which states an application in a case for costs must be filed within 28 days after an order has been made.  No such application has been made.

Functus Officio

1. The matter was adjourned on 8 December 2009 pending my determination on the issue of jurisdiction as it poses the first hurdle to the relief sought by Mr D.  That is whether I am functus officio.

2. The authorities relating to the principle of functus officio are considerably varied.  As a statement of general principle, it is perhaps most eloquently put by Jordan CJ in Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women (1949) SR(NSW) 300 at 303 citing Ex parte Hassell (1937) 37 SR 192 at 195:

   “When an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio, and cannot add to, amend, or detract from what he has done”.

3. This general principle was qualified by Gaudron J in FAI General Inusrance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 289:

   “A court is not functus officio whilst there remains any judicial function which may be performed in relation to the proceeding, even if it be only that of ensuring that the final order correctly records the meaning of the court.”

4. A similar factual scenario to the matter at hand is to be found in the judgment of the Full Court in B & B [2000] FamCA 1744. That matter concerned an appeal to the Full Court against a trial judges’ decision not to deal with a costs application as he was functus officio. The matter had been on appeal, and the trial judge’s orders had been varied before the costs application was listed before him. His Honour found that he did not have jurisdiction to deal with the costs application, although it had been properly brought.

5. The Full Court comprising of Holden, Coleman and Watt JJ allowed the appeal and held at [7]:

   “It is clear that his Honour was not functus officio in respect of the wife’s costs application which properly invoked the statutory powers to order costs in s 117 of the Family Law Act 1975 and that application was made within the time frame prescribed by the rules. Any limitations on a statutory power must be looked for in the statute itself and there is none in s 117 (or anywhere else in the Family Law Act 1975) which restricts or limits his Honour’s jurisdiction to hear and determine the wife’s application for the costs of the trial after the determination of an appeal and cross-appeal against the substantive orders.”

6. The distinguishing factor in that case, however, is that the appeal did not set aside the final orders in whole, as was done had here.  Nor is this a party’s claim for costs, ie. statutory power, but a person who claims to be entitled pursuant to r 1.56 which he is not in my opinion entitled to do and cannot therefore excite the statutory power of this Court.

7. That being said, the Full Court’s reasoning did not turn on the degree to which the trial judge’s decision had been overturned.  The essential finding was that the Court was not limited by statute to hear the application.

8. What has happened since “my trial” – a draft order was requested and prepared (no mention of the fees of the expert); the Order – no mention of the fees of the expert; a new trial - as I understand all matters settled.  A draft order was placed before Jordan J – no mention of the fees of the expert.  Then a “reference” by the expert to me.  How can it be said that a judge is not functus officio after that?

Rule 15.60 – Single Expert Witness

1. Rule 15.60, and indeed all of Part 15.5, gives rights and remedies to a single expert witness.  Undoubtedly, Mr D was a single expert witness until 23 November 2007.

2. Mr Cooper argues that his application should be allowed because there is no other remedy available to Mr D under the rules.  That is, that the definition of single expert witness should be expanded in these circumstances to include Mr D.  I would reject that argument.  That Mr D has no remedy in this Court does not mean he cannot find his remedies elsewhere. 

3. Rule 15.60 relates to a single expert whose fees, under r 15.47, would not be contentious.  Mr D became the Wife’s witness.  The payment of his fees, and indeed the interest owing, is certainly contentious.  If he seeks his fees, a (presumably contested) application would need to be properly brought rather than this attempt to get the matter heard through a back door approach.

4. I therefore find that the complaint before the Court has not been properly brought.  Thus, per B & B [2000] FamCA 1744, while I am not functus officio, I will not accept that Mr D’s complaint falls within r 15.60 and as such there is no costs application before me, brought under the legislation, to be determined.

5. If I am wrong in relation to my being functus officio I feel as though I have, in the above reasons, indicated that I am of the opinion that the reference by Mr D is not properly brought, and that therefore in those circumstances I am of the opinion that I could not hear the application being functus officio or if not I would have dismissed the application (B & B [2000] FamCA 1744).

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  22 February 2010