JEFFREYS & BENSON (No.2)
[2017] FCCA 2616
•16 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFREYS & BENSON (No.2) | [2017] FCCA 2616 |
| Catchwords: COSTS – Observations in Saxton & Keenan applied. PRACTICE AND PROCEDURE – Need for proper and realistic estimates of duration of trial to be given – interruption to the orderly conduct of court business if inaccurate estimates given – costs consequences that follow when inaccurate estimates are given causing interruption to judges’ lists and delays to other litigants. |
| Legislation: Family Law Act 1975 (Cth), s.117(2)(A) |
| Cases cited: Saxton & Keenan [2016] FCCA 643 |
| Applicant: | MR JEFFREYS |
| Respondent: | MS BENSON |
| File Number: | MLC 11343 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 16 October 2017 |
| Date of Last Submission: | 16 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Burns |
| Counsel for the Respondent: | Ms L Colla |
| Solicitors for the Respondent: | Berry Family Law |
| Counsel for the Independent Children's Lawyer: | Ms V Theoharopoulos |
| Solicitors for the Independent Children's Lawyer: | Southern Family Law |
ORDERS
Pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth), the proceeding is transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that court deems appropriate.
Costs are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Jeffreys & Benson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11343 of 2016
| MR JEFFREYS |
Applicant
And
| MS BENSON |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 18 May of this year, I fixed the trial of this proceeding to start today on an estimated duration of three days.
When this matter was before me on 18 May 2017, the applicant was represented by Mr Goddard of counsel and the respondent was represented by Ms Lane of counsel, both experienced practitioners of the family law jurisdiction. As is my usual practice, I probed deeply with counsel then appearing as to the metes and bounds of the issues that were the subject of their estimate of three days and was told confidently that the case would go no longer than three days.
As is my practice, I fixed the case for trial on the accuracy of that estimated duration. In debate with counsel this morning, I was told that the estimate given on 18 May was wildly inaccurate. The new estimate appears to be nearer twice that originally given. I will come to the explanation for the discrepancy in a moment, but for present purposes, it is important to point out why the accuracy of estimates are so vital. Not only does it assist the court in the ordering of its business, but it assists the parties to know with certainty how long and therefore, at what expense, their case is likely to take.
The orderly arrangement for the fixing of cases also assists the parties to confine, in some way anyway, the emotional trauma associated with a family law proceeding. Here, I was told on 18 May that the case would go for three days, and I fixed it with that in mind. In fact, I fixed it after receiving what I was assured was a cast iron guarantee of the duration. As a result of that fixture, I ordered the rest of the year’s allocations of trials before me. I had planned to be busily engaged on this case for today, tomorrow and Wednesday of this week, turning away other cases that other equally deserving litigants might have otherwise had the benefit of having a judge determine.
There is an enormous dislocation to the due operation of court business by inaccurate estimates. That interruption is exacerbated by an estimate that is revised, almost doubling the earlier estimate.
Let me come to the present position. Today, all counsel agreed that instead of the originally forecast number of witnesses, a revised number will be called, 13 in total, and each are to be the subject of cross-examination by at least one person at the Bar table. I was told that even counsel for the ICL intends to interrogate most of the witnesses to be called.
The applicant has had a chequered history of legal representation. Today, Mr Burns appeared on a direct representation on the instructions of the applicant. Ms Colla brought to my attention that over the weekend immediately preceding today, significant affidavit material was filed. She said that as a result of that late filing of material she was denied the opportunity of obtaining instructions in respect of it, to say nothing of the incorporation of it in the orderly preparation of her case at trial. That practice is equally undesirable, as it is destined to have an adverse bearing on the conduct of the case.
At all events, the parties have persisted in their estimate of five days at least and more likely seven days. They intend to rely on the evidence of all 13 witnesses and they have told me that they do not want today to commence and be marked part-heard at the end of the third of the three allocated days for the trial. Hardly surprisingly, the parties are not keen for the case to be marked part-heard because of two reasons. First, any resumed date will be on a date well into the future and upon any such resumption, memories of the events that have already gone by will be blurred.
But most importantly the second, and in my opinion the most compelling reason, is that it prolongs the agony associated with the resolution of a family law proceeding, something that litigants know only full well and practitioners can but speculate about the trauma and impact caused to the parties who are before the court. At all events, today the estimate is something in the order of seven days. I accept that estimate without reservation, as responsible counsel have given it.
I also accept that the number of witnesses to be called is as they have said, 13 in all. One of the biggest issues for me at this time – almost midday on the allocated first day of the trial – is why this complication emerged on the first day of the trial, rather than it having been brought to my attention before now. As I observed in some fairly trenchant criticisms in a case I handed down last year, Saxton & Keenan,[1] parties who engage in disorderly conduct in the preparation of a trial are to be visited with the consequences of that, usually sounding in a costs order.
[1] [2016] FCCA 643.
I abide wholeheartedly to my observations in that case for the purposes of the present case. The problem from which I suffer in making any determination in respect of costs is that I do not have the full picture. I accept what all counsel have told me and rely most particularly on
Ms Theoharopoulos’ submissions that her client, the ICL, has been in constant contact with the parties to get an understanding of what evidence they choose to adduce and the likely duration of it.
Whatever might be the back story, the simple reality is that I have not been previously appraised of the fact that today’s case is to be expanded in the way contemplated. Self-evidently, had that information been provided to me before today, arrangements might have been made for this case to be dealt with on a different basis, or other arrangements dealt with, possibly adjourning it by consent, or obviating the need for an appearance. That has not happened.
All parties join in a concerted agreed position that this case, in its revised magnitude of duration and magnitude of evidence, is most appropriately dealt with in the Family Court of Australia. It seems to me this case cries out for urgent attention, having regard to the fact that it involves relocation issues, all central to the need for speedy determination. That urging is irresistible. I make the order for the transfer of this proceeding to the Family Court of Australia and I do so for several reasons, which will be of interest to that court.
First of all, my docket will not enable this case to be returned before me even if I started it today, any time before the middle of next year. Naturally, that is thoroughly unattractive to the parties and contrary to the best interests of justice, to say nothing of the best interests of the parties. Second, a case of seven days’ duration is probably more expeditiously dealt with by the Family Court of Australia. The burden on their dockets is significantly less than it is on the dockets of judges of this court. And lastly, it seems to me to be appropriate to invite that court to take this case whenever it can, but as urgently as it can.
Despite the comments that I debated with counsel about my preliminary views about the conduct of the parties in this case, I do not have enough information at my fingertips to make orders under 117(2)A of the Family Law Act 1975 (Cth) in respect of costs. But I will reserve the costs of today, and if anyone later seeks an order, I specifically carve out for consideration of the trial judge what is to be done with costs thrown away of today.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 27 October 2017
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