Hopper and West

[2009] FamCA 142

FAMILY COURT OF AUSTRALIA

HOPPER & WEST [2009] FamCA 142

FAMILY LAW – COSTS – Oral application – Procedural orders

Family Law Act 1975 (Cth)

APPLICANT: Mr Hopper

RESPONDENT: Ms West

FILE NUMBER: CAC 284 of 2007

DATE DELIVERED: 16 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hogg

SOLICITOR FOR THE APPLICANT: Patrick Black & Associates

COUNSEL FOR THE RESPONDENT: Ms Colla

SOLICITOR FOR THE RESPONDENT: Carter & Blumer

Orders

1. That all outstanding proceedings are adjourned before me at 9.00am on 5 May 2009.

2. That the wife have leave to withdraw the unfiled application in a case and supporting affidavit which arrived at the court this day.

3. That by 4.00pm on 24 April 2009, the wife file and serve:

   (a)    an amended application for final orders setting out precisely what orders she is seeking; and

   (b)    any application for interim orders relating to the joinder of third parties and discovery.

4. That by 4.00pm on 1 May 2009, the husband file and serve

   (a)    any amended response to the final orders sought by the wife setting out precisely what orders he is seeking; and

   (b)     any response to any application for interim orders filed by the wife; and

   (c)    any interim application for orders enabling the matter to proceed on an undefended basis.

5. That the wife file and serve any affidavit material upon which she intends to rely by 4.00pm on 24 April 2009.

6. That the husband file and serve any affidavit material upon which he intends to rely by 4.00pm on 1 May 2009.

7. That all parties have leave to make an oral application to my Associate to have the hearing on 5 May 2009 conducted by telephone if it only relates to interlocutory applications.

8. That the hearing of the conciliation conference on 3 April 2009 at 2.15pm is vacated.

9. That the requirement that the parties attend a conciliation conference is waived on condition that the parties attend a mediation in Albury with a private practitioner as a mediator.

10. I certify for the attendance of counsel.

11. That my reasons for judgment this day in relation to costs be transcribed and be left on the court file.

12. That the husband’s application in a case filed 12 January 2009 be dismissed.

13. That the husband’s costs thrown away in respect of the hearings on 7 July 2008, 28 October 2008, 7 January 2009 and this day be paid by the wife and in default of agreement as to the quantum then as may be assessed.

14. That the payment of the costs by the wife be stayed until the final hearing of the property proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: CAC 284 of 2007

MR HOPPER

Applicant

And

MS WEST

Respondent

REASONS FOR JUDGMENT

1. This concerns an oral application made by counsel for the husband in relation to costs.  It has taken a fair part of today to work out what this case is really all about and I have some considerable sympathy for the registrars who have endeavoured to manage the case for the period since about May 2008.  As I have pointed out to the parties, had they in fact diligently followed the path that the registrars had set out in May 2008 the case would almost inevitably now be concluded. 

2. The application for costs is made on the basis that it is the wife's fault that the proceedings have not advanced anywhere.  The factual matrix is complicated.  It is clear that on 7 July 2008 Registrar Mestrovic made an order:

   Within 21 days the wife file and serve an amended application for final orders joining the husband's parents as parties to the proceedings, together with an affidavit setting out the grounds of her claim.

3. I digress here to note that the way in which that order was worded made it clear that all the wife had to do was to redraw her application for final orders noting the husband's parents on the application as parties to the proceedings, providing there was an affidavit setting out the grounds of the claim.  Needless to say, nothing happened.

4. A second order was made on 7 July, that within 21 days of the husband's receipt of that amended application all parties file various material.  On the same day, the registrar made an order for the exchange of documents.  The wife's counsel says that the husband has not complied, the husband's counsel says that he has.  There has been little activity from the wife's perspective so I tend to think that the husband was right.

5. On 7 July 2008 the registrar made no order for costs.  What she did do was adjourn the proceedings for a mention, and it then came back on 8 September 2008.  I stop at that point to indicate that if the parties had done everything that was required of them in July 2008 then on 8 September it is clear that the matter could have been progressing fairly rapidly.  Fundamentally, the reason why the matter could not proceed on 8 September was because the wife had taken no steps to join the husband's parents.  It seems to me, therefore, that the costs thrown away for the hearing on 7 July have to fall upon the wife.

6. On 8 September 2008 the registrar was Registrar Sikiotis.  It does not matter much what happened on that day because the registrar ordered that the wife pay the husband's costs of the day fixed in the sum of $520, and they were to be paid by 6 October.  I take it from that that the registrar was satisfied that the costs of $520 were simply thrown away by virtue of the attendance of counsel for the husband at the hearing.  It is quite clear, however, that the matter was stalled because of the fact that the wife had not filed the amended application.  On 8 September, therefore, the proceedings were adjourned to 28 October.

7. On 28 October the matter came back before Registrar Sikiotis again.  On that occasion the registrar made an order that the parties attend a conciliation conference on 7 January 2009.  She made a number of other orders, one of which was that the question of the husband's costs of the day were reserved to the conference on 7 January 2009.  The only conclusion I can draw from the fact that it was only the husband's costs of that day that were reserved is that again the wife's application in relation to joining the husband's parents had not been undertaken.

8. It seems appropriate in the circumstances, subject to some matters that I will raise in a moment, that the wife actually pay the costs thrown away for that day.  When I say "thrown away" in respect of the hearing on 7 July and 28 October I am referring to the preparation by the solicitor for the husband, including the briefing of counsel and counsel's appearance on 8 September, and the solicitor attending on 28 October, which I note was by telephone.

9. When the matter came on on 28 October, it was adjourned over to 7 January in anticipation of the conciliation conference taking place.  On 7 January the solicitor for the wife and counsel for the husband attended by telephone.  It became abundantly clear that the matter had not progressed at all, and again the only conclusion I can draw from the orders made by the registrar is that it was because of the fact that the wife had not undertaken the tasks that she was ordered to do in July 2008.  I draw that conclusion from the fact that order (1) of 7 January sets out that the husband was granted leave to file and serve by no later than 14 January an application for summary dismissal and indemnity costs order as well as filing an affidavit in support.

10. To make matters more difficult, the wife was to file any responding material to the husband's application by 4 February.  Looking at the court file, I can see that the husband filed his application within time.  What I have been handed today is a letter from the solicitors for the wife dated 13 February 2009, indicating that documents responding to the husband's application were sent to the court on 3 February.  I have noted today that documents arrived in the court's mail today, 16 February.  I am unable to ascertain why it has taken 13 days to get here, but in the end it does not matter.  That is so because the orders of Registrar Sikiotis indicated that the documents of the wife were to be filed and served by 4 February.  Even though they were sent to Melbourne for filing on the 3rd, and it sounds a little unlikely that they would get here by the 4th, there is no explanation as to why the unsealed copies were not sent until 10 days later, on 13 February 2009.  On that basis I can, again, only conclude that the wife still has not got her house in order.

11. Today, the application before me was, as foreshadowed by the husband, to have the proceedings of the wife summarily dismissed.  In discussions with counsel this morning I have made my position clear, that on the material before me there is little prospect of that application succeeding.  That is because the husband would have to show on the wife's material that her application is doomed to fail.  I have read the affidavit of the wife, albeit it only arrived today, and it makes, in my view, very little claim for the sort of proceedings that were contemplated.  There has been discussion about the prospect of a constructive trust, but on the basis of what I have read there is no material upon which I could say that the wife has an interest in the husband's parents' farm.

12. But that is not the test.  The test is whether or not her application in the proceedings would be doomed to fail.  It may very well be, based upon the very broad, sweeping and probably inadmissible statements in the affidavit that if fleshed out there was some potential claim.  It is for that reason that I indicated that I doubted very much whether the husband could establish that there was a basis for a summary dismissal. 

13. Needless to say, however, rather than simply strike out the application, the wife seeks an indulgence so that she can get her house in order for one final time.  I have been told by counsel for the wife that she acts only for the wife and cannot speak for her instructing solicitor, but it is plain from a letter that was handed to me that the solicitors for the wife indicated that they would take responsibility for some of the costs last year.  I think that it is appropriate, if in fact this malaise is attributable to the solicitor for the wife, that he be asked to show cause why he should not be responsible for some of the husband's costs which the wife will incur as a result of my order.

14. Before making any order for costs, however, I have to take into account the provisions of s 117 of the Act.  That provision starts out with the principle that in all proceedings each party bears their own costs.  The exception to that rule is that if the court is satisfied there are circumstances which justify making an order because of something that a party has done then the court can depart from the rule and make an order for costs.  Before making the costs, however, the court has to take into account the matters in s 117(2A) of the Act. 

15. The difficulty in a case like this is that I am dealing with very limited information.  Neither party seems to be flush with funds.  I am told that the wife is a pensioner and has two children who are shared between the parties on a week-about basis, and the husband is a farm worker.  That means that both parties are in a difficult position.  However, if I do not make an order for costs in the husband's favour then he misses out because he is the one who is carrying the responsibility of all these adjournments as a result of the ineptitude of the wife or her practitioners.  In those circumstances it seems to me that it is a case in which I am justified in departing from the ruling and making an order for costs, notwithstanding the impecunious financial position of the wife.

16. A couple of other matters are relevant in s 117(2A).  The first is that I am obliged to take into account the way in which the parties have conducted themselves in relation to what has generally been described as the conduct of the proceedings.  I have to say that I can only draw the conclusion that between July 2008 and now, the wife has slept on her rights and done nothing in relation to getting this case ready for trial.  We are, unfortunately, at a point in the litigation where we might very well be only just starting, if in fact there is going to be a serious application to join the husband's parents, because what follows from that is a variety of orders of an interlocutory nature, including discovery. 

17. The second matter that I am obliged to take into account is whether or not one party has been wholly unsuccessful.  The husband has not been entirely successful today in that he came along seeking a summary dismissal and has not achieved that.  However, the only person who has been wholly unsuccessful today has been the wife in the sense that she has not done what she was supposed to do, which is to join the husband’s parents, and we are still back where we were in July 2008. 

18. In those circumstances, it seems appropriate for me to make an order for costs, which are not intended as a punishment of the wife but rather compensating the husband for the fact that he has had to follow in the litigation path set by the wife.  I am also making orders today which will act as a sword of Damocles in the case, and in the event that the parties do not get their house in order then a party who has complied will be able to make an application to proceed on an undefended basis.

19. Making an order for costs, however, also places a burden on the Court to try to work out the quantum.  What I have been asked to do today is make an order for costs in favour of the husband for $13,800 plus a further $5000 for today, which includes accommodation and travel for Mr Hogg's instructing solicitor.  I do not feel comfortable about making any orders in relation to specific quantum today because in relation to the $13,800 those figures are determined on a general basis and I could not be confident that I am working within the scale set out in the schedule to the rules.  In those circumstances, the only way I can adequately deal with the matter is to make an order that in default of agreement between the parties as to the costs then they be assessed in the usual way.

20. For the avoidance of any doubt, however, I want to make it abundantly clear that the costs to be included which are to be carried by the wife are the appearance fees for counsel and his instructing solicitor today, the respective appearance by telephone, or otherwise on each of the occasions of 7 July, 8 September, 28 October and 7 January.  In respect of those that were dealt with by telephone I am only intending that the time associated with the telephone be paid by the wife or her practitioner.  In respect of those particular hearings, I also want to make it clear that I am only permitting costs in relation to the preparation for those hearings on the basis that any other work that has been done up until now will be work that may very well be part of the ultimate cause, and in the event that either party wishes to make a further application for costs subsequent to the conclusion of the proceedings those matters could be dealt with.  Again, I make it abundantly clear that what I am doing is making an order for costs thrown away as a result of what has occurred.

21. Finally, the husband through his counsel seeks an order that the costs be paid by the wife's solicitor.  Again, Ms Colla does not appear for her instructing solicitor, and I do not have any indication whether or not he feels some sense of responsibility for what has occurred.  On that basis, in the event that the wife asserts that it is not entirely her fault then she can make an application to have some or all of the costs borne by her own solicitor.  In those circumstances, I will make an order that the solicitor show cause to his own client why and if so to what extent, he ought to be responsible for the costs order I propose to make in a general way today.

22. I will also order that these reasons be transcribed and be made available to the parties.  Finally, I will make an order that in relation to the costs, payment be stayed until the final determination of the property proceedings.

I certify that the preceding Twenty Two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 March 2009