Home and Home (No 2)

[2009] FamCA 1079

FAMILY COURT OF AUSTRALIA

HOME & HOME (NO. 2) [2009] FamCA 1079

FAMILY LAW – REVIEW –  of Registrar’s Orders – Costs – Leave to Extend Time – Factors relevant the exercise of discretion to extend time – Relevance of case management principles in exercise of discretion to extend time

Family Law Act 1975 (Cth)

Aon Risk ServicesAustralia Ltd v Australian National University [2009] HCA 27
Gallo v Dawson (1990) 93 ALR 479
Marinko & Marinko (1985) FLC 91-609
MHC & Y [2006] FamCA 610
OP v HM (2002) 29 FamLR 251
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Strudwick v Baker Johnson (1996) FLC 92-683

APPLICANT: Ms Home

RESPONDENT: Mr Home

FILE NUMBER: BRF 2057 of 2004

DATE DELIVERED: 17 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 13 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Scott-Mackenzie

SOLICITOR FOR THE APPLICANT: BROWNS LAWYERS

COUNSEL FOR THE RESPONDENT: Mr Drysdale

SOLICITOR FOR THE RESPONDENT: BERCK & ASSOCIATES

Orders

1. The order of Registrar Turner made on 7 July 2009 be set aside.

2. The application by the respondent husband for an extension of time for the filing of an Itemised Costs Account and Notice Disputing Itemised Costs Accounts in respect of the order of the Honourable Justice Coleman made 14 December 2006 be dismissed.

3. The husband shall pay the wife’s costs of and incidental to the order of Registrar Turner to be agreed or, failing agreement, to be assessed.

4. The husband shall pay the wife’s costs of and incidental to this application to be agreed or, failing agreement, to be assessed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2057 of 2004

MS HOME

Applicant Wife

And

MR HOME

Respondent Husband

REASONS FOR JUDGMENT

1. Issues in relation to costs between the parties to these proceedings have been ongoing now for approaching three years.

2. On 6 December 2005, Bennett J made an order reserving the question of payment by the wife to the husband of costs referrable to the issue of the validity of a financial agreement between the parties to the trial judge, and directed that by 10 January 2006, the husband provide the wife with “a memorandum of his costs and disbursements relevant to the said costs application”.

3. Over three years later, on 7 July 2009, Registrar Turner granted the husband a further extension of time for the filing of the itemised costs account of the husband and notices disputing itemised costs accounts in respect of a further order made by Coleman J dated 14 December 2006.

4. That decision by Registrar Turner is sought to be reviewed by the wife pursuant to Rule 18.08 of the Family Law Rules 2004 (“The Rules”).

5. The Application for Review is heard de novo. There is no necessity to establish error on the part of the Registrar.

6. Section 37A(10) of the Family Law Act1975 (“The Act”) permits the Court to “… make such order or orders as it considers appropriate with respect to the matters with respect to which the powers are exercised”.

7. The power of the Court to conduct a review is found in the preceding subsection.

8. On 14 December 2006, Coleman J ordered that “the wife will pay the husband’s costs of and incidental to proceedings on 5 and 6 December 2005, 26 May 2006, and 8 June 2006, as agreed or taxed on a party/party basis”.

9. Consequent upon the order made by Coleman J, there was a requirement upon the husband (there being no agreement about costs between the parties) to serve upon the wife an itemised costs account within 28 days after the end of the case.

10. The end of the case, for the purpose of the Rules, can be seen to be 14 December 2006 when Coleman J made the orders earlier referred to. Accordingly, the husband was bound to serve the itemised costs account by 11 January 2007.

The Relevant Chronology

1. The relationship between the dates on which actions were (and were not) taken and the Rules’ requirements with respect to time, form an important part of the arguments advanced on this review. It is convenient to commence with an examination of the Rules (relevantly contained in Schedule 6 to them) and the time frames required by them.

2. The Rules provide for a process intended to have the parties resolve any outstanding issues with respect to costs.

3. The Rules also provide that upon service of the itemised costs account, the person bound to pay is entitled to dispute it by serving the requisite notice within 28 days after the account was served.

4. In the event, the husband did not serve his itemised costs account by 11 January 2007; he did so on 23 May 2007, more than four months late.

5. At that time, the husband served his itemised account in respect of the proceedings on 5/6 December 2005, but, it is to be observed, he did not do so in respect of the proceedings on 26 May 2006 and 8 June 2006.

6. Within 28 days after that, on 18 June 2007, the wife served on the husband a notice disputing that itemised costs account.

7. Subsequently, on 26 July 2007, the husband made application to the Court for an order extending the time for serving the account in respect of the 5/6 December 2005 costs. A registrar extended time to 7 October 2007. Within that timeframe, on 27 September 2007, the husband served accounts on the wife in respect of those proceedings.

8. The following day, 28 September 2007, the wife made Application to Review the decision of the Registrar.

9. On 2 October 2007, the husband served on the wife, accounts in respect of the proceedings on 26 May 2006 and 8 June 2006.

10. Justice O’Reilly heard the Application for Review, and on 1 November 2007, her Honour made orders that the Registrar’s orders be set aside and that:

    (b)The time for service by the husband on the wife of 3 itemised costs accounts in relation to the costs order made by Justice Coleman on 14 December 2006 (the 3 itemised costs accounts being for the husband’s costs of and incidental to proceedings on 5 and 6 December 2005, 26 May 2006 and 8 June 2006) is extended to 1 November 2007;

    (c)The husband to pay the wife’s costs, including Counsel’s fees, of and incidental to the husband’s Application filed on 26 July 2007, before Registrar Stevens to be assessed, if not agreed, to be set off against the costs the wife is to pay the husband pursuant to Justice Coleman’s orders made on 14 December 2006.

11. Justice O’Reilly records the fact that the husband’s initial solicitors had ceased to act on 16 February 2007 and that solicitors took over from them, commencing to act in February 2007.

12. Her Honour found, by way of explanation for the husband’s delay in serving the itemised costs account as follows:

    26.This submission [on behalf of the wife] however, overlooks the explanation provided in [the husband’s new solicitors] letter of 19 July 2007 to the wife’s solicitors … the letter first referred to the wife’s notice disputing the first itemised costs account, and then said:

    … It has now come to our attention that the account, which was prepared by [the husband’s former solicitors] did not include itemised costs accounts for the last two dates in Justice Coleman’s order.

    We note that we will be filing a further two itemised costs accounts for these two dates and seek your consent for an extension of time to have this matter listed for directions and in order for you to file any notice disputing costs in relation to these subsequent accounts [bold emphasis added by O’Reilly J].

    27.Thus, there is by [the husband’s new solicitors] in relation to the period February 2007 until 27 June 2007, that it had recently (which I would infer by her use of the word “now” in the letter dated 19 July 2007) come to her attention that the itemised costs account delivered on 21 May 2007 did not include the second and third sets of costs included in Coleman J’s order.

13. Her Honour went on to find further, in respect of the delay, that it was caused by oversight on the part of the husband’s former solicitors and the new solicitors awaiting the complete file from those earlier solicitors.

14. At this point, in light of submissions made on behalf of the wife, who is the applicant in this review, it is important to observe that, when her Honour delivered her orders and reasons on 1 November 2007 the date upon which the costs account ought to have been delivered was, by then, some ten months old (although, of course, other events had intervened in the interim). But, the applicant points out, there is, by the time of the orders of Justice O’Reilly, already delay on the part of the husband.

15. It is also to be noted that the wife incurred an obligation to file an account pursuant to sub paragraph (c) of the orders made by O’Reilly J on 1  November  2007. On 5 November 2007 the wife did so.

16. The same day the husband’s solicitors wrote to the wife’s solicitors seeking that they “… confirm you agree that the time in which we have to file these accounts in the courts is 42 days from 1 November 2007, being 13 December 2007.”

17. The husband then served the wife with his notice disputing the wife’s itemised account on 4 December 2007. It seems clear enough that this notice of dispute was in respect of the wife’s claim for costs (to be set off against the costs payable to the husband) in accordance with O’Reilly J’s order.

18. In written submissions on behalf of the applicant wife it is submitted that:-

    34(d)Had the husband served the accounts within the time fixed by rule 6.22(1) of Schedule 6 of the Family Law Rules, the wife served notices within the time fixed by rule 6.24 and the husband filed the accounts and notices within the time fixed by rule 6.25(3), the dispute in relation to costs would have been before the Court for resolution by no later than 22 March 2007, about two years five months ago.

19. Despite writing to the solicitors for the wife on 5 November 2007 nominating 13 December 2007 as their understanding of the requirement, pursuant to O’Reilly J’s order, to file his itemised accounts in respect of the original orders made by Coleman J (in respect of the three earlier proceedings), the husband did not file his itemised costs either by that date, or at all during the whole of the following year, 2008.

20. In fact, there was no relevant communication of any type between the solicitors for the parties for the whole of 2008.

21. Meanwhile, proceedings continued afoot in respect of other matters. The Court had issued a notice indicating that proceedings for directions would take place on 26 March 2009. On that date, a Registrar ordered that the parties file the relevant accounts and notices within seven days (i.e. by 2 April 2009).

22. It seems clear that the Registrar made that order to, as it were, bring the issue of costs “to a head”. But, it should be noted that, as at 26 March 2009, there was no application for an extension of time to file the accounts in respect of the original orders made by Coleman J.

23. Even if the husband was right in his expressed understanding of the date by which O’Reilly J’s orders were to be complied with, he had not complied by that date, nor had he sought an extension of time.

24. Within the time specified by the Registrar, the wife again filed her account in respect of the proceedings on 1 November 2007 and the relevant notice.

25. The husband did not comply with the Registrar’s order.

26. On 2 April 2009 (the date upon which the seven-day time period specified by the Registrar expired) the solicitors for the wife served on the solicitors for the husband a sealed copy of the account in respect of the proceedings on 1  November 2007 and a sealed copy of the notice.

27. A letter accompanied those documents. That letter asked the solicitors for the husband to confirm the date and time of the filing of the accounts in respect of the earlier proceedings referred to in the order of Justice Coleman. No reply was received to that letter.

28. Meanwhile, however, it appears that the husband was taking steps in respect of the wife’s claim for costs emanating from the order made by O’Reilly J. On 28  April 2009 the husband’s solicitors sent a preliminary assessment notice in respect of the costs of those proceedings. Proceedings for directions as a result were due to take place on 1 June 2009.

29. At that time, when the parties appeared before the Registrar, there was no application before the court on the part of the husband (or any material on his behalf) relating to the order made by Justice Coleman.

30. However, the husband applied for an order which had the effect of further extending the time for filing of the accounts in respect of those earlier proceedings.

31. The Registrar directed the parties file written submissions within ten days supporting, or arguing against, that extension. The parties did so. On 7 July 2009 Registrar Turner made the orders sought to be reviewed in this application.

Time Limits – The Rules and Their Purpose

1. The purpose of the Family Law Rules 2004 is outlined in Rule 1.04:-

   … to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

   The Rules go on to provide – relevantly as it seems to me – as follows:-

   [1.06]The court must apply these Rules to promote the main purpose, and actively manage each case by:

   (a)encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;

   (b)having regard to unresolved risks or other concerns about the welfare of a child involved;

   (c)identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;

   (d)at an early stage, identifying and matching types of cases to the most appropriate case management procedure;

   (e)setting realistic timetables, and monitoring and controlling the progress of each case;

   (f)ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;

   (g)considering whether the likely benefits of taking a step justify the cost of that step;

   (h)dealing with as many aspects of the case as possible on the same occasion;

   (i)minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and

   (j)having regard to any barriers to a party’s understanding of anything relevant to the case.

   Rule 1.07 provides:  To achieve the main purpose, the court applies these Rules in a way that:

   (a)deals with each case fairly, justly and in a timely manner;

   (b)      encourages parties to negotiate a settlement, if appropriate;

   (c)is proportionate to the issues in a case and their complexity, and the likely costs of the case;

   (d)      promotes the saving of costs;

   (e)gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and

   (f)promotes family relationships after resolution of the dispute, where possible.

2. Among the responsibilities of the parties (and their lawyers) found in rule 1.08 are obligations:-

   (g)assisting the just, timely and cost-effective disposal of cases; and …

   (l)complying with these Rules and any orders.

Extending Time – Principles and Considerations

1. There is no doubt that the court has power to extend time fixed under the Rules or by a procedural order (see Rule 1.14).

2. As submitted by the respondent husband, that Rule does not define any criteria to be taken in to account by a court when exercising the discretion to extend time. The wife submits – in my view correctly – that the Rule must be seen in the context of the other provisions of the Rules, particularly those relating to the Rules’ purpose and the manner in which the Rules ought be applied.

3. Further, it should be noted that the relevant Rules within Schedule 6 (specifically relating to costs) do not specify the carrying out of tasks “within a reasonable period of time” or any other such generality, but, rather, specify specific periods of time with which the parties are required to comply.

4. The principles relevant to the extension of time have been referred to in a number of decisions both in this jurisdiction and elsewhere.  Many were referred to by each of the parties (see eg Marinko & Marinko (1985) FLC 91-609; MHC & Y [2006] FamCA 610; Strudwick v Baker Johnson (1996) FLC 92-683; Gallo v Dawson (1990) 93 ALR 479).

5. In OP v HM (2002) 29 FamLR 251 at [19] the Full Court of this Court held:-

   The principles to be applied in determining an application for an extension of time are fairly well settled.  Whilst there is a broad discretion, the fundamental issue is whether an extension of time will enable the court to do justice between the parties.  This is normally shown by the applicant demonstrating that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on the hearing of the application, and that no hardship or injustice will be caused to the respondent which cannot be compensated by orders as to costs or otherwise … [references and citations omitted]

6. The decision just referred to, as well as the earlier decisions cited, were all decided prior to the commencement of the Rules.

7. In granting an extension at the time, O’Reilly J referred to a number of decisions, also decided prior to the introduction of the Rules. Her Honour referred specifically to the decision of the High Court in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146.

8. Dawson, Gaudron and McHugh JJ held in that case (at 154):-

   Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.

9. The decision of the High Court in Aon Risk ServicesAustralia Ltd v Australian National University [2009] HCA 27 was handed down on 5 August 2009, only a matter of days prior to the hearing of this application before me.

10. The decision was referred to by Counsel for the wife, Mr Scott-Mackenzie, who in particular, referred to the judgment of Heydon J at [133]. His Honour held:-

    … It is necessary to apply the Rules without any preconceptions derived from what was said in that case. There is a common opinion – it is far from universal, but it is common – within the judiciary and the legal profession that Queensland v J L Holdings Pty Ltd, whether it has been correctly understood or not, has had a damaging influence on the conduct of litigation.

11. In a joint judgment of the High Court in Aon Risk, above (Gummow, Hayne, Crennan, Kiefel and Bell JJ) held that an application for leave to amend a pleading should not be approached with any preconceptions about entitlement to amendment subject to the payment of costs.

12. Their Honours said, at [111]:-

    … There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

13. Although that case was concerned with amendment to a pleading (in a court of pleadings) the decision, in my respectful view, provides strong guidance to a Judge sitting at first instance in this court with respect to applications to extend time pursuant to the Rules.

1. That is made clear in my view, when regard is had to the references in the Rules earlier referred to as to their purpose, and the obligations and the responsibilities upon parties and legal practitioners working within them.

2. The court’s obligation to prevent injustice ought include those cases where requirements of the Court’s Rules might be seen to work such injustice. But, equally, as the Chief Justice made clear in Aon (above at par 6), that is not to say that “…case management considerations and questions of proper use of court resources are to be discounted or given little weight …”. 

3. In this case, what should, in fact, have been a relatively simple matter has now occupied two Registrars and three Judges of this Court.  It has involved, over a period of more than three years, a number of appearances and involved inconvenience and expense to the parties.  The hearing of this (further) review has occupied further Court time and the necessity for these reserved Reasons.

   
   
   

Extension of Time – Arguments and Conclusions

1. It is submitted on behalf of the husband that “the failure to comply with the direction of Registrar Turner, and hence the need for the order of Registrar Turner of 7  July 2009 was the confusion as to which party was responsible for the filing of the relevant documents.”

2. Essential to the submissions for the respondent husband is, then, an assertion as to confusion about his obligations.  The written submissions on his behalf go on to contend:-

   19.It is apparent that the solicitors for the husband were confused as to who was responsible for filing the Itemised Costs Accounts of husband and Notices Disputing Costs Accounts (see “JOR &”, affidavit J Rimmer).

   20.It is submitted that the ambiguity of the directions made by Registrar Turner on 26 March 2009 and the confusion as to their interpretation should [not] penalise or prejudice the husband in the pursuit of his costs pursuant to Costs Orders made by this Honourable Court.

3. Earlier in those same submissions, it is contended:-

   4.…The failure to comply with the direction of Registrar Turner, and hence the need for the order of Registrar Turner of 7 July 2009 was the confusion as to which party was responsible for the filing of the relevant documents.

   5.In support of the submission by the husband that it was the wife’s obligation to file and serve her Notices Disputing the Husband’s two Itemised Costs Account together with those Itemised Costs accounts, it is submitted it is relevant for the Court to take into account the matters discussed at the Directions Hearing 26 March 209 (sic) as set out in paragraph of 16 of the affidavit of Jennifer Rimmer, filed 11 June 2009.  Further it is submitted that it is relevant to take into account that the husband in reliance on his interpretation of the direction made by the Registrar, filed his Notice Disputing Costs together with the wife’s Itemised Costs Account dated 4 December 2007 in the Court in compliance with the direction 31 March 2009 and forwarded to the solicitors for the wife a letter dated 1 April 2009 …

4. The submissions on behalf of the husband do not answer the central difficulty which, in my view, is confronted by him.

5. There is, in my view, an insufficient explanation for the delay by him when the requirements of the Rules are looked at in the whole of the circumstances of this case.

6. I note in the Reasons for Decision given on 7 July 2009, Registrar Turner said:-

   The confusion as [to] the interpretation of Clause 6.25(3), the ambiguity of directions made by Registrar Turner on 26 March 2009 and the apparent continued lack of communication between the practitioners on this issue should not in any way penalise or prejudice the parties in the pursuit of their costs pursuant to a costs order.

7. The Registrar then goes on to refer to the well-known passage from McHugh J’s judgment in Gallo v Dawson, above.

8. I accept the submissions made by Mr Scott-Mackenzie, Counsel for the applicant wife, that “…it is appropriate and necessary to consider the totality of the delay, not just the delay since time was extended on the last occasion.” The totality of the delay is, in my view, a powerful circumstance relevant to the determination of the indulgence sought by the husband in the instant circumstances.

9. I also accept the further submissions made on behalf of the wife, that “… there is either no explanation, or no satisfactory explanation for what can only be described as inordinate delay on the part of the husband.”

10. I have earlier referred to the husband’s assertion, in correspondence, as to the date perceived by him to be the time limit for the filing of accounts and notices.  I earlier made the point that, notwithstanding the husband himself asserting that time limit, he did not comply with it.  It is submitted on behalf of the wife that in those circumstances “an explanation for the delay assumes greater significance”. I agree.

11. It might also be said, a failure to provide such an explanation concomitantly assumes greater significance.

12. I specifically accept the submissions that:-

    There is no explanation for the delay between the order of O’Reilly J and the date on which Ms Rimmer assumed the care and conduct of the proceedings on behalf of the husband, 16 February 2009.

    Ms Rimmer herself (see her affidavit, par 2) acknowledges that it was brought to her attention upon her assuming the file on behalf of the husband that the dispute about costs was outstanding.  Rather than make application to the Court for an extension of time, Ms Rimmer corresponded with the Court (see pars 4-8 of the affidavit of Ms Rimmer).

13. The written submissions on behalf of the wife proceed:-

    61.The parties appeared before Registrar Turner about two months later, on 26 March 2009.  There was no application before the Court and no material.  Notwithstanding, Registrar Turner made an order which had the effect of extending the time for filing the documents.

    62.It is to be remembered that the wife had already filed the account in respect of the proceedings on 1 November 2007 and the Notice, and had done so in accordance with Rule 6.25(3).  She did so again in accordance with the order of Registrar Turner.

    63.Ms Rimmer swears that she interpreted the order to require the husband to file the wife’s account in respect of the proceedings on 1 November 2007 and the Notice and to require the wife to file the husband’s accounts in respect of the proceedings on 5 and 6 December 2005, 26 May 2006 and 8 June 2006 and the Notices … [Footnotes referring to the evidence omitted in each case].

14. The submission goes on to assert:-

    … [This] interpretation is surprising.  In a practical sense, almost invariably, a party who serves an account and receives a Notice, and then is unable to resolve the dispute, files the account and the Notice in accordance with Rule 6.25(3).  The terms of the order “… any account that they want to be assessed by the Registrar …”, makes it clear that the parties were required to do what is usually done and that is to file their respective accounts and the Notices served in respect of each of them within the time fixed by Registrar Turner.

    64.It was not until about two months later, on 15 May 2009, that the solicitors for the husband made enquiries about the issue of preliminary assessment notices.  Registrar Turner promptly responded on 19 May 2009.  However, the response was not seen by Ms Rimmer until 2 June 2009, she being absent from her office for personal reasons.  Notwithstanding, the proceedings were relisted for directions on 1 June 2009.  Again, as mentioned earlier, there was no application before the Court and no material. [Footnotes referring to the evidence again omitted].

15. I accept all of those submissions.

16. It is asserted that “the husband is somewhat disingenuous in attempting to shift blame for the delay between 19 February 2009 and 1 June 2009 to the wife”.  The husband argues that, because neither party pursued the assessment of costs between December 2007 and February 2009, no “blame” should be attributed to one party or the other.  I disagree. 

17. I accept the submission on behalf of the wife that she has complied with the Rules in respect to the costs payable by, and to, her.  In my view it is the husband who has failed to comply with the Rules; he has provided an inadequate explanation for the delay in doing so, and it is a delay that has now spanned a considerable period of time.

18. The husband asserts that the wife did nothing to bring to the attention of the husband’s solicitor what she has asserted to be his misunderstanding of the directions.  The wife contends that there are two answers to this assertion.  First, it is said that the misunderstanding, if there was one, should have been apparent on the receipt of the email from Registrar Turner on 19 May 2009.  Secondly, the order was clear, and the wife complied with its terms.  I agree with each of those submissions.

19. For the sake of completeness I should also record that additional matters also impact upon the exercise of the discretion and point against the extension of time sought. 

20. If the issue of costs was to now proceed and be determined, it would potentially involve questions of fact about events which occurred over three and a half years ago (and, most recently, over three years ago in the case of the proceedings on 8 June 2006).

21. I consider that there is potential prejudice to the wife in prosecuting any resistance by her to the nature or quantum of any items of costs in respect of those accounts given the elapse of time and the potential for recollections to dim with that time frame.

22. For those reasons, I propose to set aside the order of Registrar Turner and to make orders in accordance with those earlier indicated at the outset of these written reasons.

Costs

1. Costs are sought of the application before Registrar Turner and the application before me.

2. The wife has been wholly successful in the proceedings before me.  The essence of the findings made by me relate to a failure of the husband to comply with the Rules of Court.  So too, central to my Reasons, is the potential for injustice to the wife resulting from that course of action.

3. It seems to me appropriate that the prima facie Rule enunciated in s 117(1) of the Act be displaced in favour of an order that the husband pay the wife’s costs of and incidental to the proceedings before Registrar Turner and the application before me.

4. I order accordingly.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  17 November 2009