Horne & Innes (Deceased) (No 2)
[2022] FedCFamC2F 1251
Federal Circuit and Family Court of Australia
(DIVISION 2)
Horne & Innes (Deceased) (No 2) [2022] FedCFamC2F 1251
| File number(s): | BRC 4864 of 2019 |
| Judgment of: | JUDGE WILLIS |
| Date of judgment: | 15 September 2022 |
| Catchwords: | FAMILY LAW – costs multiple failed interim applications in a de facto property matter – respondent deceased –existence of a de facto relationship contested – applicant seeing to proceed in absence of two other respondents even though they are participating –seeks orders for the return of the deceased ashes - no jurisdiction to do so, seeks orders for the return of his personal items from the executor – such items do not form part of the estate – not in his control –jurisdiction in terms of the alleged de facto relationship not yet established - orders for a further mediation when the disputed facts suggest no utility in doing so – applicant to pay the costs of the respondents. |
| Legislation: | Family Law Act s 117(1)(2) |
| Division: | Division 2 Family Law |
| Number of paragraphs: | 31 |
| Date of hearing: | 31 August 2021 |
| Applicant: | Self-represented Litigant |
| Second Respondent: | Mr Hinton, Solicitor |
| DJ Hinton Lawyers | |
| Third Respondent: | Ms Farnell, Solicitor |
| Family Law Solutions |
ORDERS
| BRC 4864 of 2019 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | ||
| BETWEEN: | MR HORNE Applicant | |
| AND: | MS INNES (Deceased) | |
| AND: | MS MERRITT Second Respondent | |
| AND: | MR BAXTER AS EXECUTOR OF THE ESTATE OF THE ESTATE OF THE LATE MS INNES Third Respondent | |
order made by: | JUDGE WILLIS |
DATE OF ORDER: | 15 September 2022 |
THE COURT ORDERS:
Costs:
The Applicant is to pay the Second Respondent’s (Miss Merritt) costs of and incidental to the Application in a Case filed on 12 March 2021 fixed in the sum of $11,000, within 90 days of today’s date.
The Applicant is to pay the Third Respondent’s (Mr Baxter as Executor of the Estate of the late Ms Innes) costs of and incidental to the Application in a Case filed on 12 March 2021, fixed in the sum of $9,400, within 90 days from today’s date.
The Applicant is to file and serve an affidavit explaining his non-appearance at todays’ court event and also to confirm that he intends to further prosecute his application, by no later than 23 September 2022.
THE COURT FURTHER ORDERS:
The Third Respondent is at liberty to renew their application to be excused from further attendance in this Court in relation to the contested issues between the Applicant and Second Respondent on the understanding that the Third Respondent indicates he will abide by any further orders of the Court.
Application by the Third Respondent – Regarding Further Participation in Court Appearances
If the Applicant wishes to be heard as to why the Third Respondent ought not be excused from further participation in these proceedings (noting that the Third Respondent will abide by any Orders of the Court), then the Applicant is to file and serve written submissions fully particularising the basis of his objection, within 21 days. Thereafter unless the Court requires any further submissions, the Court will make that determination on the papers in chambers.
In the event that the Applicant fails to comply with the terms of this Order, the application will be determined on the material currently before the Court in chambers.
The matter is adjourned for mention on 24 January 2023 at 9:30am by telephone link in the Federal Circuit and Family Court of Australia in Brisbane, noting this is listed for the hearing of the foreshadowed application for security of costs in relation to the substantive matter.
TRIAL DIRECTIONS
That the Application be listed for a two (2) day trial on 3 and 4 April 2023.
The Applicant is to file and serve any affidavits of evidence in chief (prepared strictly in accordance with the Court rules as to font size, spacing, pagination, index for annexures and paragraphs numbered) or other witnesses’ affidavits of evidence in chief to be relied upon by no less than 28 days prior to the date set for hearing. All affidavit material is to be prepared pursuant to the relevant rules of evidence for property NOTING ALSO THAT there is to be one affidavit by the Applicant which should be compilation of all relevant previous affidavit evidence and any further or updated evidence.
All annexures to the affidavit are to be paginated and there is to be an index prepared listing out the respective annexure with the page number.
The Respondent is to file and serve any affidavits of evidence in chief (prepared strictly in accordance with the Court rules as to font size, spacing, pagination, index for annexures and paragraphs numbered) or other witnesses’ affidavits of evidence in chief to be relied upon by no less than 18 days prior to the date set for hearing. All affidavit material is to be prepared pursuant to the relevant rules of evidence for property NOTING ALSO THAT there is to be one affidavit by the Respondent which should be compilation of all relevant previous affidavit evidence and any further or updating evidence.
All annexures to the affidavit are to be paginated and there is to be an index prepared listing out the respective annexure with the page number.
Each party is to file and serve on each other party 3 days prior to the date set for hearing, a Case outline setting out:
(a)the final Orders sought, fully particularized;
(b)a chronology of relevant events in a table format;
(c)a list of documents intended to be relied upon at the trial;
(d)a tablet setting out all assets and liabilities; and
(e)in relation to property matters, a statement of evidence relative to the relevant contributions and issues in dispute and respective percentages referring to section 79(4) and 75(2) (or de-facto equivalent provisions).
At the commencement of the trial, the parties are to do all acts and things to provide a paginated list identifying specifically the subpoena material to be tendered and relied upon, whether that material forms part of a tender bundle or otherwise.
That the Applicant pay the hearing set down fee or file an Application for waiver to be exempt from the hearing fee no less than 28 days prior to the date fixed for hearing.
No party has leave to rely upon any material filed (this includes e-filing) outside the time provided within these directions other than with leave of the Court. The Registry is not to accept any documents for filing without leave of the Court.
NOTATION:
A.The Applicant has not appeared at today's delivery of reasons and has not contacted the Court to explain his non-appearance.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply, any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Horne & Innes (Deceased) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
This is an application for costs, flowing on from an interim application filed by the Applicant, Mr Horne on 12 March 2021. That application was heard and determined in the published reasons and judgment issued on 31 August 2021. I rely on that judgement. The Applicant was wholly unsuccessful.
Both the second respondent and the third respondent are seeking their costs of and incidental to the interim application filed by the applicant. I have had regard to all of the written submissions of the applicant including those filed later than the proscribed time, and each of the second and third respondents.
The relevant section of the Family Law Act is Section 117. Section 117 (1) states each party pay their own.
Section 117 (2) states that in considering what Order to make if any, under sub section (2) the Court shall have regard to the following noting that both parties are legally aided.
I will turn now to those considerations.
Financial circumstances of each of the parties.
I have taken account of the Financial Statement filed by the Applicant on 30 April 2019. He lists his income as $289 per week at section A of the form, and as $307 per week at section D. Most of the form consists of the answer “nil” and there are many questions just left blank such as personal expenditure. As to assets, they are listed at $8,250.00 at question 43 and $6,250 in the financial summary at Part B. Mr Horne describes himself at Part A with no fixed address and homeless.
Another Financial Statement was filed on 7 September 2021 by Mr Horne, which shows at Part B, an income of $342.00 being “job seeker” and personal expenditure of $295.00. Mr Horne lists out a Motor Vehicle 1 with no value (noting “no debt”) and personalised number. At question 40, a vehicle is listed (not previously referred to in the initial financial statement) being the Motor Vehicle 1. This is shown as having a value of $3,000. The furniture paintings and kitchen items are reduced by $2,000 to show a value of $2,900. Total assets are then shown as $5,900.00.
I am aware from what Mr Horne has told the Court that he has spent somewhere upwards of $10,000 to $15,000 on his own legal advice. Mr Horne told the Court he has a legal team consisting of very senior advisors.
The second respondent – Ms Merritt.
As to the financial circumstances of the Second Respondent Ms Merritt, who seeks her legal costs in relation to the interim application, I have noted her income of $1,640 and her expenses $2,058. Her assets including superannuation are listed at $645,101 and her liabilities as $591,000. Financial resources being the property at B Street, Suburb C listed as an interest in a trust / deceased estate at $195,000. As part of her financial circumstances the Second Respondent sets out that her legal costs prior to the interim application were over $30,610.00. Added to that following the interim hearing are further costs bringing her legal fees to around (or over) $40,000.
The Executor of the Estate – Mr Baxter
The Third Respondent, Mr Baxter, is seeking costs as the Executor of the Estate of the late Ms Innes (deceased First Respondent). Mr Baxter in his position as Executor of the Estate has incurred legal fees of $8,000 to $9,000. Mr Baxter has set out that the only asset of the Estate is the money held in the trust account of Kruger Law in the sum of $1,804.58. The liabilities are a Centrelink overpayment of $322.80 and legal costs with the administration of the estate of around $9000 and the legal fees spent on the applications of the applicant thus far. Mr Baxter has had no alternative other than to incur these costs given that the applicant has joined him to the proceedings. He wishes to be excused from being further involved in this matter. Whilst I have declined to do that at the end of the interim application, given the opposition from the Applicant who strongly opposes Mr Baxter being permitted to be excused, I said I would give the trustee the opportunity to be heard again when the matter was being set down for a final hearing. I intend to do that.
Turning to the next consideration, whether a party has been wholly unsuccessful.
The Applicant has been wholly unsuccessful in multiple interim applications as referred to in the judgment. The Applicant sought an order that the Executor return to him various personal items and gifts and property he says is solely his property. The Applicant also sought that he and the Second Respondent, Ms Merritt, pay for the return of the items to his Town D address and also that Ms Merritt participate in a second conciliation conference (where Ms Merritt pay for that). The Applicant sought for the Court to list this for a “default hearing” in the absence of the other parties which was found to be an absurd request given the other parties are all engaging in the litigation. This application had been made orally on a prior occasion and the Court explained very clearly that the parties were engaging and that it would not be listing the matter for an undefended hearing. Further it was not correct of the Applicant to say (as he firmly and repeatedly pressed) that Judge Spelleken was going to do this. The possibility that this may occur was nothing higher than a notation, (not an Order) when the Court made Orders for the Respondent to file material. There were acceptable reasons why the Applicant had not filed by the time provided for under the rules. The Court told the applicant that it would not be going back in time to make a decision that in the midst of the litigation, the Court would suddenly decide to hear the matter on an ex parte basis.
The applicant pressed for an Order for the Federal Circuit Court to Order the return of a portion of the deceased’s ashes, saying he would distribute them to her father. He argued that the jurisdiction of the Federal Circuit Court to make this determination existed as part of its property jurisdiction and that sections 33 and 6 of the Succession Act 1981 gave the Court his jurisdiction. There were a myriad of reasons put forth by the Executor as to the propositions put forth by the Applicant being wrong at law, and other matters such as the executor no longer being trustee of the ashes, that the ashes of the deceased do not form part of the estate all of which the Court accepted.
Conduct of the Parties.
As to the Applicant’s interim application, at the end of the interim application, the Applicant sought an order that he be permitted to talk to his legal team and that he would need more time to do this, to make additional submissions. During the hearing the Court indicated to the Applicant that he needed to know the provisions of Act he relied upon in launching his interim (and final) application and been in a position to answer the question posed at the interim hearing which was broadly the jurisdiction of the Court to make any interim property distribution or other orders he was seeking particularly having heard the position of the respective parties and their submissions.
The Applicant said he didn’t know he had to have that information about jurisdiction at this early stage and said that he thought that it would only be needed at the trial. He requested that he be granted time to go away and consult his solicitor who he has been seeing for some time according to the applicant and to whom he has paid some $10,000 or more for legal advice.
The Court granted the Applicant’s request so as he had more time to consult with his solicitor (who is not on the record) to provide written submissions as to the Court’s jurisdiction to make any interim orders in this matter. This indulgence meant that the other parties incurred additional expense in having to address the Applicant’s further submissions, all of which were unsuccessful.
The Applicant’s written response that the Court had jurisdiction to make property orders sought by him, did not address the issue, facts and circumstances nor the relevant jurisdiction to this matter. The Applicant’s submissions fail to acknowledge that there are contested issues in this matter and that there is a dispute as to whether there was a de-facto relationship. The same applies to the Orders that could be sought against the executor. There are a myriad of contested issues which the applicant fails to acknowledge.
The trustee indicated in his submissions through Miss Farnell that the Executor knew nothing about the Applicant’s possessions and asked that the interim application be dismissed for the reasons set out in their submissions, which was taken up by the Court.
I accept also that the Applicant’s position has been constantly changing during this litigation and this is evidenced by the number of Amended Final Applications, now being up to the Fourth Amended Application. Also noting there are a number of affidavits filed by the Applicant.
Offers – the second and third respondents have made offers, however, quite properly each has advised that as they were offers to resolve the whole matter, the Court is not aware of the basis of those offers.
Any other matter.
The Applicant asks that no order as to costs be made, and that the Court essentially defer hearing or making any Costs Orders until the final trial; in other words, when all of the contested matters are determined.
In this matter, the issues ventilated by the Applicant were all interim matters. The substantive issues will not affect the failure of the Applicant interim applications. The Court has dealt with and dismissed all of the interim orders sought. The Applicant pressed those applications knowing that there is disagreement about the fundamental facts. The Applicant pressed the Court to make an Order about the deceased’s ashes when the reality was that the Court has no jurisdiction to do so. The request for a de-fault hearing was misguided and against all understanding of procedural fairness. The facts in this matter are so polarised that the concept of another costly round of conciliation conferences was simply misguided at best. The Applicant tells me he has studied law, I think for a couple of years and not completed his degree. He told the Court he has had legal advice. I can only assume that the Applicant well knows the perils of pressing all of his interim applications.
The issues ventilated by the applicant in his interim application and the Orders sought by him are unrelated to the Court’s final determination of whether there was a de facto relationship between the applicant and the first respondent and the other orders sought by the applicant. As I have said, the issues pressed in his interim application are not affected by the outcome of the final trial. They are all stand alone issues.
I have taken account of and adopt the submissions of each of the second and third respondents.
Having considered all of these matters, I am satisfied that this is not a matter where each party should pay their own costs, nor is it appropriate to reserve the costs until the end of the litigation.
I intend to Order that the Applicant pay to the Second Respondent and Third Respondent the costs of and incidental to application in a case filed on 12 March 2021 hearing on the 31 August 2021.
As to the quantum of the costs, I have taken account of the scale and the costs to the Second Respondent. I am satisfied that the scale according to the costs in this Division is $8747.50 and does not adequately cover the costs incurred. I note the scale in Division 1 is accordingly $14,427. I intend to fix the amount of costs for the Second Respondent to $11,000.
Similarly in relation to the costs incurred by the Executor, I am not satisfied that the scale of the Division 2 costs would be sufficient in these circumstances, given the multitude of applications and its complexity I intend to fix those costs at $9,400.
The Applicant will be ordered to pay those costs within 90 days of today’s date.
Future of this Litigation.
As to the future of this litigation, the time has come to set the matter for finalisation – to set this down for a trial and/or any process to end the litigation.
I indicated in my August judgment that whilst I did not give the Executor leave to withdraw at this stage, but that I would allow the Executor to renew that application at the time that the matter was being considered for determination, rather than an interim hearing.
If Mr Baxter wishes to renew his application to be granted leave to no longer appear at the hearing, but to instead abide by the Orders of the Court, he is now able to do so and I will hear it.
| I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis . |
Associate:
Dated: 15 September 2022
0
0
0