Joseph and Joseph

[2009] FamCA 1092

FAMILY COURT OF AUSTRALIA

JOSEPH & JOSEPH [2009] FamCA 1092

FAMILY LAW - EVIDENCE - Admissibility - Admissibility of affidavit
FAMILY LAW - COSTS - Circumstances justifying order

Evidence Act 1995 (Cth) Section 165
Family Law Act 1975 (Cth) Section 117

APPLICANT: Ms Joseph

RESPONDENT: Mr Joseph

FILE NUMBER: SYC 144 of 2008

DATE DELIVERED: 25 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 25 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cummings

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. The husband pay the wife’s costs assessed in the sum of $350 within one month of this day.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 144 of 2008

Ms Joseph

Applicant

And

Mr Joseph

Respondent

REASONS FOR JUDGMENT

1. In this matter the husband has filed an application dated 27 July 2009 for the purpose of an order that an affidavit made by the maternal grandfather be determined to be inadmissible pursuant to subsection 165(1)(c) of the Evidence Act.

2. This application has no chance of success because section 165 of the Evidence Act relates to trials by jury and, in addition to that, relates to the determination of admissibility by the judge who is hearing the trial. The application before me is not a part of a trial by jury and I have not been allocated this matter for final hearing. I do not know whether or not I will be the judge who hears the matter ultimately. In fact, it seems to me that Mr Cummings is of the view that the matter will be heard by a judicial registrar, rather than a judge, in any event.

3. In those circumstances, the application has no reasonable prospect of success and it should be summarily dismissed and so I shall do that.

4. In these proceedings I have just dismissed the husband’s application summarily because it has no chance of success. The wife now seeks costs of the application. Costs of $350 are sought. I cannot imagine that the wife could have incurred less than $350 in costs simply by her solicitor being required to read the application, the material in support, look up the Act in question, then for the majority of time this matter has been before me and argued, sit while the case is being dealt with. In the circumstances, I think this is a matter where the circumstances justify the Court in regarding it as such that the Court should consider an order for costs and not simply reply upon the primary principle which section 117 entrenches; that each party should bear his or her own costs.

5. The reason for me coming to this conclusion is that the husband is unrepresented and has brought an application which is based upon ignorance of the law and has been completely misconceived. Nevertheless, it was nothing short of an attempt to use legal tactics to gain a forensic advantage. It was not merely an act in compliance with the necessary requirements to prepare the matter for trial. That, in my mind, makes the matter one which warrants consideration of an order for costs.

6. In considering what order should be made I have to regard certain matters. Of course, in considering what order should be made that includes the possibility that I still might make no order as to costs.

7. The first matter that I have to consider is the financial circumstances of each of the parties to the proceedings. I do not know these but they are probably not very strong because the matter is going to be dealt with by a judicial registrar, it seems, and the husband has told me that his finances are not sufficient to get a lawyer. So I shall take that into account, but I also take into account the fact that $350 only is involved.

8. The next matter that I have to consider is whether or not in the proceedings either party is legally aided. The husband certainly is not and because these are property proceedings I can assume, and Mr Cummings has not told me otherwise, that the wife is not legally aided.

9. The next matter to be considered is the conduct of the parties to the proceedings in relation to them. This subsection really relates to procedural conduct. In my view, such conduct includes the bringing of baseless applications for tactical purposes. I will take that into account.

10. The next part that I must consider is whether the proceedings themselves were necessitated by any failure to comply with previous orders. That is not the case here.

11. The issue of whether or not a party to the proceedings has been wholly unsuccessful also must be considered. There is no doubt that in this aspect of them the husband has been wholly unsuccessful.

12. The final matter is whether or not there has been any offer in writing to settle the particular aspect of the proceedings and I have not been informed of any such offer.

13. There are no other matters which I regard as relevant.

14. I regard this as a matter where an order for costs should be made in the sum asked, which I regard as perfectly reasonable and I shall make an order for costs in terms that the husband is to pay the wife’s costs assessed at $350 by me within one month of that day.

15. I will otherwise transfer the matter, because the other aspect of the matter which is before me is no longer of relevance, to the docket of a judicial registrar for the purpose of listing it for hearing.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate: 

Date:  19 November 2009