Hunter and Hunter - [2019] FamCA 40

FAMILY COURT OF AUSTRALIA

HUNTER & HUNTER

[2019] FamCA 40

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision – where the relief sought in the husband’s Application was that service of his itemised cost account upon the wife be deemed valid pursuant to Rule 19.21 of the Family Law Rules 2004 (Cth), or in the alternative, that the time limited for service of the husband’s cost account upon the wife be extended – consideration of the phrase “after the end of the case” – where it is found that in this case “after the end of the case” is after the Full Court dismissed and disposed of the Second Respondent’s appeal.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Hunter

RESPONDENT:

Ms Hunter

FILE NUMBER:

BRC

10255

2011

DATE DELIVERED:

30 January 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

25 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk QC

SOLICITOR FOR THE APPLICANT:

Hartley Healy

COUNSEL FOR THE RESPONDENT:

Mr Alexander

SOLICITOR FOR THE RESPONDENT:

Condon Charles Lawyers

Orders

IT IS ORDERED THAT

The Application in a Case filed 31 December 2018 to review the Registrar’s decision (delivered 24 December 2018) is allowed.
Orders 1 and 2 made on 24 December 2018 are set aside.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunter & Hunter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10255 of 2011

Mr Hunter

Applicant

And

Ms Hunter

Respondent

REASONS FOR JUDGMENT

By Application in a Case filed 31 December 2018, Mr Hunter seeks to review orders 1 and 2 made by Registrar Brooks on 24 December 2018. Such orders dismissed an Application in a Case he had filed on 1 August 2018 and ordered that he pay the Respondent’s costs of and incidental to the Application on a party and party basis in an amount assessed or agreed.
The Respondent to the application, Ms Hunter, seeks that the application for review is dismissed, with an order for costs made in her favour.
The power to review a decision made by a Registrar is to be found in section 37A(9) of the Family Law Act 1975 (Cth)(the Act), which provides that a party may apply to review a Registrar’s exercise of power. According to section 37A(10), the Court may review the Registrar’s exercise of power and may make such order as it considers appropriate with regard to the matter with regard to which the power was exercised.
Part 18.2 of Chapter 18 of the Family Law Rules 2004 (Cth) (the Rules) applies in the present case: see Rule 18.07(a). Consequently, the Applicant is able to apply for review of the order by filing an Application in a Case and a copy of the order within the specified period of time after the decision was made. Here, there is no issue that Mr Hunter, the Applicant, filed the Application in a Case seeking to review within the time prescribed.
Rule 18.10(1) provides the Court must hear the Application for review of an order as an original hearing. Consequently, I must have regard to and determine Mr Hunter’s application for the relief particularised in the Application in a Case filed on 1 August 2018.

Relief sought in the Application in a Case filed 1 August 2018

Before outlining the relief Mr Hunter sought, I should record that Ms Hunter sought the dismissal of that Application and an order that he pay her costs of and incidental to the same on the standard basis.
The relief sought by Mr Hunter is as follows:
(a)pursuant to Rule 7.02 of the Rules: service of the husband’s itemised cost account on the wife on or about 11 September 2017 be deemed valid pursuant to Rule 19.21 of the Rules; or
(b)pursuant to Rule 1.14(1) and (2) of the Rules, the time for service of the husband’s itemised cost account on the wife, pursuant to Rule 19.21, be extended to 11 September 2017, or to such other date as may be fixed by the Court.
Rule 7.02 of the Rules provides that the Court may find that a document has been served or that it has been served on a particular date, even though the Rules or an order have not been complied with in relation to service.
Rule 19.21 of the Rules provides, in subrule (1), that a person entitled to party and party costs must serve an itemised costs account on the person liable to pay costs within four months after the end of the case.
Given that it is accepted that Mr Hunter served an itemised costs account on Ms Hunter on 11 September 2017, the first question to be answered is whether this was “within four months after the end of the case”.
If it was, then, as raised with the parties’ legal representatives during the course of the hearing - and as properly conceded by Counsel who appeared for Ms Hunter - there is no need for the Court to make any order extending time or providing for compliance with Rule 19.21 because, if such finding is made, the husband will be within the four months prescribed by that Rule.
If service of the itemised costs account on 11 September 2017 is not “within four months after the end of the case”, then there is a need to consider the balance of the application by which he seeks, by various means, to extend time for compliance with the same.
The phrase “after the end of the case” is not defined in the Rules.
The proceedings within which the order for costs the subject of discussion here was made involved three parties: the husband, the wife and D Pty Ltd (“DPL”). It is relevant to note that, on 5 August 2016, I made costs orders in the husband’s favour against both the wife and DPL. If this is the event that constitutes “the end of the case”, then the itemised costs account served by Mr Hunter on Ms Hunter should have been served by 5 December 2016 and, given that it was not served until 11 September 2017, he is some nine months and about six days out of time.
It is relevant to note that Ms Hunter did not appeal the costs order made on 5 August 2016. However, by Notice of Appeal filed on 2 September 2016, DPL did. That appeal was concluded when, on 17 July 2017, the Full Court of this Court dismissed that appeal and made an order that DPL pay Mr Hunter’s costs. If this event constitutes “the end of the case”, then the husband served the itemised costs account on Ms Hunter on 11 September 2017, and, thus, is within time, given that, in such a scenario, the Rules would require the same to be served upon her by mid-November 2017.
I accept that, in interpreting the phrase “after the end of the case” in Rule 19.21(1) of the Rules, I should regard the word “case” (although not defined in the Rules or the Act) to mean “a proceeding in a court of law”. I also note that the term “proceeding” is defined in section 4(1) of the Act to mean “a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding.”
It is obvious that, had the intention been for a party in whose favour a costs order was made to be required to file an itemised costs account within four months after that order was made, the Rules could easily have clearly provided for that. That they do not suggests to me that the date on which the order for costs is made is not the relevant date when interpreting the phrase “after the end of the case”, and that the making of an order for costs is not necessarily the relevant event to trigger the commencement of the time limitation contained within Rule 19.21(1).
If, therefore, “the end of the case” is not synonymous with “the making of a costs order” – as it seems to me it clearly is not necessarily – then what is it synonymous with? Does the “end of the case” contemplate the expiration of the time within which a party can appeal as of right? If so, what effect does the existence of the right to apply to extend time to appeal have?
If the “end of the case” was interpreted to mean “the end of the proceeding”, then, using the definition of “proceeding” found in the Act, that would encompass an appeal, or an application for an extension of time within which to commence an appeal, as it seems to me that these two actions fit easily within the meaning of “an incidental proceeding in the course of or in connection with a proceeding.”
It is well established that the modern approach to legal interpretation requires that the context be considered in the first instance, with “context” to be understood to be used in its wider sense and to include things like the existing state of the law and the mischief which it may be concluded that the law, or the Rule, was intended to remedy.
The context here, it seems to me, must also be assessed having regard to other aspects of the Rules. For example, Rule 1.04 of the Rules outlines that the purpose of the Rules is to ensure that each case is resolved in a just and timely manner and at a cost to the parties and the court that is reasonable in the circumstances of the case; Rule 19.01(2) provides that a party may only recover costs from another party in accordance with these Rules or an order.
It is also relevant to note that Rule 19.21(1) is within Part 19.6 – Claiming and Disputing costs – and that it is contained within Division 19.6.1, which deals with itemised costs accounts; the assessment process is particularised in those Rules which form and come within Division 19.6.2 of the Rules.
I consider that the interpretation which best achieves the purpose of the Rules, and takes into account the context within which the obligation to serve an itemised costs account arises in the present case is that which regards the phrase “after the end of the case” to mean, in this case, after the Full Court dismissed and disposed of DPL’s appeal against the costs order made in August 2016.
Consequently, I am not persuaded that the applicant, Mr Hunter, was out of time when he served the itemised costs account on the wife on 17 September 2017, that date being about only two months after the Full Court dismissed DPL’s appeal against the costs order made in August 2016.
Given this conclusion, there is no need that I make any order other than those orders which dispose of Mr Hunter’s application to review and the orders made on 24 December 2018 and orders which deal with the competing cross-applications for costs orders.
Given the joint approach by each party’s legal representatives, I express my conclusion that, if I am wrong in my determination of the manner in which the phrase “after the end of the case” is to be interpreted and it should in fact be interpreted to mean “after the date on which the costs order was made” (which here was 5 August 2016) or “after the date on which the wife could, as of right, appeal the making of that order” (which would have been within 28 days thereafter), then I record that I would have exercised the discretion to extend the time by which Mr Hunter was required to serve an itemised cost account on the wife to 17 September 2017.
I would do so for the following reasons.
I accept that the purpose of any Rule enabling a Court to extend time is to ensure that the application of the Rules themselves does not produce injustice: in the present case, the doubt about the interpretation to be accorded to the phrase “after the end of the case”, as found in Rule 19.21(1) of the Rules and the circumstances as adverted to by the husband’s solicitor (whose evidence I accept) persuades me that determining not to extend time would be productive of the very injustice sought to be avoided by the existence of the ability to extend time.
I record that neither party adduced evidence of any prejudice if their respective primary positions were unsuccessful - other than that the husband advanced that he would be precluded from recovering the sum particularised in the served itemised costs account, being the amount of $37,390.00.
I take into account and accept the explanation provided for the delay, which I summarise broadly to be, in essence, that, given the existence of the phrase “after the end of the case” and the continuation of the appeal by DPL against the August 2016 costs order, there was not thought to be urgency in the process of finalising the itemised costs account: noting that such process was commenced well within time sufficient to enable the service of the completed document upon the wife.
I also accept that, once Ms Hunter was served with the itemised costs account, on 11 September 2017, no particular point was taken in relation to the issue, nor was any suggestion advanced that it was out of time; such point appears only to have arisen after a determination by a Registrar of the Court, on about 19 February 2018, to the effect that the husband needed to apply to extend time.
I accept the evidence given by the husband’s solicitor to the effect that the Application to extend time was lodged in the Court on 30 April 2018, despite the fact that it appears to have been sealed on 1 August 2018.
In arriving at the decision I would have made had I concluded it was necessary to do so, I also take into account that, whilst there is no precondition to the exercise of the power to extend time in any case and that whilst such discretion to extend time is unfettered, it is not an automatic event. I accept, without reservation, that the discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties, and to enable the avoidance of injustice.
As I have already recounted, I am well persuaded that a decision to extend time is the decision that would enable the avoidance of injustice in the circumstances of this case. Therefore, had I arrived at a primary determination other than that which I have expressed earlier in these Reasons, I would have concluded that justice is best served by extending the time within which the husband was required to serve an itemised cost account on the wife to the date on which it was in fact served.
In arriving at that decision, I have taken into account the consequences to the parties of the grant of the extension of time, in that, as I have already adverted to, there is no particular evidence of prejudice other than Mr Hunter’s inability to recover the quantum particularised in the itemised costs account. I have also taken into account, of course, the importance to parties of having litigation finalised; however, I have accorded greater weight to the fact that the Rules themselves relevantly provide that time runs from “after the end of the case”.
I have also taken into account the decisions to which Counsel have referred me; I note that, in respect of each of those, they were cases in which there was only one Respondent: thus, I distinguish them from the circumstances which arise in the present case, which was complicated, in a sense, by the presence of two Respondents. I note that the Full Court was not called upon to accord meaning to the phrase “after the end of the case”.
For those short reasons, then, had I considered it necessary to do so, I would have made an order extending time in the manner I have outlined.

Costs

I received submissions from the legal representatives of each of the parties in relation to what orders for costs should be made in the various scenarios considered during the course of discourse.
Given that no authority has previously considered the meaning to be accorded to the phrase “after the end of the case” in Rule 19.21(1) of the Rules and the circumstances of this case, I am not persuaded that the circumstances justify the making of an order for costs against either party. Rather, I am persuaded that the appropriate order is that each party bear their own costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 January 2019.

Associate:

Date: 5 February 2019