Harshani and Darnith and Anor

[2011] FamCA 560

FAMILY COURT OF AUSTRALIA

HARSHANI & DARNITH AND ANOR [2011] FamCA 560

FAMILY LAW – proceedings against the second respondent struck out

Family Law Act 1975 (Cth)

B Pty Ltd and Ors & K and Anor (2008) FLC 93-380

APPLICANT: Mr Harshani

1^st RESPONDENT: Ms Darnith

2^nd RESPONDENT: Ms E

FILE NUMBER: MLC 1556 of 2010

DATE DELIVERED: 1 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Mr K Harshani

COUNSEL FOR THE 1^st RESPONDENT: In person

SOLICITOR FOR THE 1^st

RESPONDENT:

Ms G C W Darnith

THE 2^nd RESPONDENT: In person

SOLICITOR FOR THE 2^nd

RESPONDENT:

C/- Broadmeadows Legal

ORDERS

1. That any proceedings against Ms E are struck out.

2. That all other proceedings against respondents other than the wife are struck out.

3. That the husband pay the costs of Ms E fixed in the sum of $650 by no later than 4.00pm on 1 September 2011.

4. That the extant applications of both the husband and the wife for an annulment of their marriage is adjourned for a two day hearing before me on 30 November 2011.

5. That neither party be entitled to rely upon any affidavit material thus far filed as their evidence in chief in respect of the forthcoming hearing.

6. That by 4 pm on 30 June 2011 the applicant wife file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)the affidavits of evidence in chief of all witnesses relied upon.

7. That the applicant wife pay all setting down and trial fees by 4 pm on 30 June 2011.

8. That by 4 pm on 15 July 2011 the respondent husband file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought; and

   (b)the affidavits of evidence in chief of all witnesses relied upon.

9. That by 4 pm on 29 July 2011 the applicant wife file and serve any affidavit in reply to that of the affidavits of the respondent.

10. That no party file any further material other than as provided by these orders without leave of the Court.

IT IS NOTED that publication of this judgment under the pseudonym Harshani & Darnith 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 1556 of 2010

Mr Harshani

Applicant

And

Ms Darnith

1^st Respondent

And

Ms E

2^nd Respondent

REASONS FOR JUDGMENT

1. This is an application by a lawyer, Ms E, for costs arising out of having been served with an application on 31 March 2011 in which she was quite inappropriately joined as a respondent to proceedings that relate to the declaration sought by the applicant, Mr Harshani, for an annulment of his marriage. 

2. The application does not seek any orders. In B Pty Ltd and Ors & K and Anor (2008) FLC 93-380, the Full Court discussed bringing in a third party into proceeding requires, at least, some form of cause of action to be pleaded so that the third party has some understanding of what they have to meet. That did not happen in this case.

3. On 20 May 2011,the applicant wrote to Ms E indicating that he was not going to proceed with the application against her because the matter had been referred to the Legal Services Commissioner, but no notice of discontinuance was filed.  I note in this case that Mr Harshani deposes in an affidavit to that the fact that he is a law student.  Perhaps he should have got some advice about his responsibilities. 

4. The application arises out of the fact that the solicitor who is an employee of a legal service obtained the advice of counsel and the brief was sent to counsel prior to receiving the advice of Mr Harshani that he was not going to proceed.  The costs sought are for six hours, which may be a little unusually high in a case like this, and $550 for counsel’s fees.  Mr Harshani describes himself as a student. 

5. Section 117 of the Family Law Act1975 (Cth) (“the Act”) says that each party to proceedings shall bear their own costs, unless there are circumstances that justify departure from that rule. You do not have to be a party to the marriage to be a person who can be ordered to, or seek costs.

6. In my view, having regard to the fact to the fact that there was no basis to join Ms E, and she was inconvenienced to the extent that she was not served properly with a notice of discontinuance, this is a justifiable circumstance to make an order for costs. 

7. Mr Harshani says that he is a student. Section 117(2A) says that if a court is going to make an order for costs it must consider the matters set out in that section.

8. One of those matters is the financial circumstances of each party.  I note that in this case the service for whom Ms E works is a community service.  I can take into account the fact that they are a government-funded body and, no doubt, struggling to make ends meet.  On the other hand, Mr Harshani is a student who says he is paid by Centrelink.  In my view, that is not a basis for me to ignore the fact that the other party has incurred costs. 

9. I think in these circumstances, the professional costs at six hours are probably a little high, having regard to the fact that the legal service was, no doubt, looking after its own, but I think some time has been clearly wasted that could have been more adequately used in the community, as the legal service should be doing. 

10. There is no reason in this case why I should not make an order for the payment of counsel’s fees because those were genuinely incurred and I have seen the particular fee slip for that.

ORDERS DELIVERED

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 June 2011.

Associate: 

Date:  13 July 2011