Hurst and Werner (No. 2)

[2012] FamCA 854

FAMILY COURT OF AUSTRALIA

HURST & WERNER (NO. 2) [2012] FamCA 854

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the Wife is ill but capable of giving instructions – Where the Wife has not appeared – Where the Wife has not provided sufficient evidence to support an adjournment – Where the Husband’s costs have been reserved on at least two prior occasions – Application for adjournment dismissed

FAMILY LAW – COSTS – Where costs have increased by the Wife’s failure to appear – The Wife to pay the Husband’s costs

APPLICANT: Ms C Hurst

RESPONDENT: Mr R Werner

FILE NUMBER: CSC 119 of 2009

DATE DELIVERED: 19 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 19 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: There being no appearance by the Applicant Wife

COUNSEL FOR THE RESPONDENT: Mr Burridge of Counsel appearing for the Respondent Husband

SOLICITOR FOR THE RESPONDENT: Macdonnells Law-Cairns

Orders

IT IS ORDERED THAT:

1. The Wife’s application for an adjournment be dismissed.

1. The Wife’s Application in a Case filed on 10 August 2012 be dismissed.

1. That paragraph 1 of the Orders of 14 June 2012 be discharged.

1. The Wife pay the Husband’s costs of and incidental to the proceedings commenced by the Wife on 24 May 2010 on a party and party basis, such costs to be agreed, or failing agreement, as assessed.

1. The enforcement of the Orders as to costs be stayed pending further Order of the Court.

1. All other outstanding applications be dismissed. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hurst & Werner (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC 119 of 2009

Ms C Hurst

Applicant

And

Mr R Werner

Respondent

REASONS FOR JUDGMENT

RECORDED   :   NOT TRANSCRIBED

1. In a case such as this I am more than satisfied that the onus upon the applicant, Ms C Hurst, of a proper reason to satisfy the court to adjourn the hearing today, has not, in any way, been discharged.  Consequently, I order that the order made by myself on 14 June be executed.

RECORDED   :   NOT TRANSCRIBED

1. The matter for my concern is the question of adjournment and costs.  I have on at least two occasions reserved the applicant husband, Mr R Werner’s costs on an indemnity basis.  A person less charitable than myself may say that notwithstanding there appears to be some illness, the wife does seem to have played a fair bit of ducks and drakes with the court.  She is entitled - or she was capable, according to her medical expert psychiatrists, of giving instructions, albeit slowly (see Annexure “A” to the affidavit of Peter Glen Mylne filed 12 June 2012, being Professor W’s report 7 June 2012).

2. She appears to have given instructions to Mr Mylne on, at least, one occasion, but has not seen fit to appear here today.  The evidence upon which she seeks the adjournment consists of a letter from herself as well as a report from a medical centre, a Dr K.  The medical certificate may be of some assistance insofar as her work is concerned, but it does not indicate in any way that she is incapable of coming to court today, physically, mentally or otherwise, and consequently I am of the view that that is inadequate evidence to be successful in seeking an adjournment.

3. I dismiss such application.  So far as the questions of costs are concerned I am satisfied she should pay the costs. 

RECORDED   :   NOT TRANSCRIBED

1. The costs are sought on, in effect, two bases.  One is indemnity costs and I have reserved costs on an indemnity basis on, at least, two occasions, as I said before.  Secondly, on the so-called scale costs attributed to these matters as set out in the costs regulations.  I am of the view, taking into consideration the submissions of Burridge of counsel for the husband and his written submissions are quite clear, this is a case where she has failed totally, where the costs have been increased, alarmingly I would have thought, by her failure to appear.

2. The husband has at all times had to prosecute his action on a defended basis.  He has to come from Cairns on, at least to my knowledge, two occasions.  He has instructed Cairns solicitors who, I understand, have also come down from the north and the costs, therefore, would have been exacerbated to a great extent by the failure of the respondent to appear on all applications save for the ones which Mr Mylne appeared in.  I have no hesitation in saying costs should be paid, save that I am a bit concerned about her capacity to pay them.

3. But it appears that the interest she has in the Suburb S home would be of some assistance in her paying the costs.  Notwithstanding, I think, primarily, that the submissions of Burridge as contained in paragraph 33 of his submissions in relation to indemnity are very persuasive.  Because I am concerned about the wife’s ability to pay such costs I would not order it on that basis, ie. scale.  Insofar as the costs agreement are concerned that really is dealt with by my refusing to make the payment by way of indemnity costs. 

ORDERS DELIVERED

1. Quite a few other applications which have been brought to my attention have not proceeded and I dismiss them.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 19 September 2012

Associate: 

Date:  19 September 2012