JOYCE and NOVAK

[2024] FCWA 79

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: JOYCE and NOVAK [2024] FCWA 79

CORAM: O'BRIEN J

HEARD: 23 APRIL 2024

DELIVERED : Ex tempore

FILE NO/S: 2533 of 2018

BETWEEN: MS JOYCE

Applicant

AND

MR NOVAK

Respondent

Catchwords:

PRACTICE & PROCEDURE - application to vacate listed interim hearing and allocate a date in a limited range where preferred counsel is available - Discussion of relevant principles - where the issues involved are not of such complexity that Senior Counsel is reasonably required - where inadequate attempts have been made to brief other counsel - where the applicant is represented by a firm professing expertise in family law in any event - application dismissed with costs.

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Lawyer A
Respondent	:	Lawyer B

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B

Case(s) referred to in decision(s):

[2021] FCWA 168

[2022] FCWA 236

[2022] FCWA 236

Aon Risk Services Australia Ltd v Australian National University (2009) 239

CLR 175

Na & Tiu [2017] FamCAFC 269

Sali v SPC Ltd and Another (1993) 116 ALR 625

State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Joyce and Novak has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The matter requiring determination is the application of [Ms Joyce] ("the wife") filed on 15 April 2024. She seeks that the hearing on 6 May 2024 of the interim application of [Mr Novak] ("the husband") filed on 27 February 2024 be vacated for the singular reason that her preferred counsel is unavailable.

2She seeks further that the matter be relisted to one of a limited number of specified dates on which her preferred counsel is available to appear. No enquiry was made of the Court as to judicial availability on any of those dates; had that enquiry been made, it would have ascertained that I am not available to hear the matter on any of the dates nominated.[1]

[1] Or at least those which had not already passed by the time the application was filed.

3The nominated dates include three full days in May, plus one morning and one afternoon. No dates in June are nominated. Five full days in late July, and one additional afternoon, are nominated, with a wider range of dates in August. The earliest judicial availability even if the matter was to be reassigned to a judge who has had no prior involvement in it would be one of the nominated dates in late July. The additional possible dates noted in the hearing this morning do not alter that position.

4The application is opposed by the husband.

Background

5The relevant background is of course familiar to the parties and to their solicitors. It is necessary to summarise it only briefly to give context to what follows.

6The parties began living together in 1992, married in May 1998, and separated in late 2017 or early 2018. They have three children. The financial proceedings were commenced by the wife on 20 March 2018. Their progression towards trial has been delayed by the involvement of the husband in litigation in the Supreme Court of State A ("the TPD litigation"). That litigation arose because the husband lodged an insurance claim contending that he is totally and permanently disabled and unable to work in his profession as a [health professional]. The claim was declined by the insurer, and the husband commenced the TPD litigation in September 2022. Consent orders were made in this Court on 8 March 2022 adjourning the substantive property proceedings generally pending the outcome of that litigation, which at that time was anticipated to progress towards trial sometime this year.

7The net value of the property and superannuation available for division between the parties is, on the wife’s case, approximately $7.4 million. Of that, approximately $5.9 million is under the wife’s control, and the balance is under the husband’s control. There is a significant dispute as to the appropriate assessment of the contributions of the parties, largely because on the wife’s case significant funds were given to her during the relationship by her father and were applied both to the acquisition of assets and to the benefit of the family.[2]

Interim proceedings to date

[2] See [2022] FCWA 236, [8].

8On 13 July 2021, the husband filed an application seeking an interim payment of $1.07 million. That application was dismissed for reasons delivered on 15 September 2021[3] ("the first judgment"). He filed a second application on 21 September 2022 seeking interim orders for the alteration of property interests, primarily to meet legal fees. For reasons delivered on 4 November 2022[4] ("the second judgment") orders were made requiring the wife to pay the husband $200,000, on the basis that in the first instance she would bear any revenue consequences arising from drawing amounts from her investment portfolio to make that payment. Orders were made requiring the husband to keep the wife informed as to the progress of the TPD litigation, and further orders were made to secure any proceeds of that litigation pending further order in this Court. I incorporate the first and second judgments in these reasons.

[3] [2021] FCWA 168.

[4] [2022] FCWA 236.

9The husband filed a further application seeking an interim payment, and orders were made by consent on 3 October 2023 for the wife to cause a further payment to him of $120,000 by way of interim alteration of property interests, again on the basis that she would meet any revenue consequences in the first instance.

10On 22 February 2024, the husband’s lawyers advised that it was estimated that mediation in the TPD litigation "may take place towards the end of 2024".

Recent events

11On 27 February 2024, the husband’s further Form 2 Application was filed, and an urgent listing was sought based on the assertion that the husband was unable to work and would run out of funds within approximately 10 weeks.[5] The application seeks a payment of $25,000 to pay legal fees, a lump sum payment of $250,000 by way of interim alteration of property interests, on the same basis as previously in relation to revenue consequences. In the alternative, the husband seeks a lump sum payment of $100,000 by way of interim alteration of property interests, and spousal maintenance of $3,729 per week. Other orders for specific disclosure are sought.

[5] See correspondence accompanying the husband's Form 2 Application filed on 27 February 2024.

12On 28 February 2024, the parties were notified that the application had been listed for hearing and determination on 6 May 2024, and the wife was ordered to file responding documents by 4.00 pm on 17 April 2024.

13The same day, the wife’s lawyers ascertained that her preferred counsel was not available to appear at the listed hearing. Appropriately, they then conferred with the husband’s lawyers who told them on 5 March 2024 that while the husband would not agree to a later hearing, he would agree to an earlier hearing if the Court could accommodate it.

14On 27 March 2024, the wife’s lawyers wrote to the Court. They advised that the wife’s preferred counsel was unavailable for the listed hearing, and that "several enquiries" had been made, but the wife’s lawyers had been "unable to brief alternate Counsel". The letter advised that the solicitors for the parties had conferred, but no agreement had been reached as to an alternate listing.

15The wife’s lawyers therefore requested that the hearing on 6 May 2024 be vacated, and relisted to either 22 April 2024, 1 May 2024, 3 May 2024, or to a date between 8 to 10 May 2024 (inclusive).

16At my direction, the Principal Registrar replied the following day pointing out the obvious; that the Court will not administratively vacate a court hearing on the unilateral request of one party, and that absent agreement, a certificate of conferral and application would need to be filed.

17The wife’s lawyers then filed the application currently under consideration nearly three weeks later, on 15 April 2024. They sought an "urgent" hearing, having been aware of the issues sought to be addressed by the application since 28 February 2024. That request was able to be accommodated only because a listed trial was vacated.

The wife’s case

18The wife says that she has been represented by the same solicitors throughout the proceedings, and by her preferred counsel at all significant hearings to date. Those include the hearings the subject of the first and second judgments. She expresses her concern that other counsel "would not have the same background and understanding of [the matter]" particularly where the application listed for hearing on 6 May 2024 is "to some extent, an extension of previous applications".[6]

[6] Wife's Affidavit filed 15 April 2024 at [30].

19She says further that when the matter was first listed, "enquiries were made with two other barristers who charge similar fees [to those charged by her preferred counsel] and are experienced family law barristers", neither of whom were available.[7] That paints a somewhat narrower picture than that conveyed, whether intentionally or otherwise, by her lawyers when they first corresponded with the Court advising that "several" enquiries had been made and they had been "unable to brief alternate Counsel".[8]

[7] Ibid at [32].

[8] See correspondence from the wife's solicitors filed 27 March 2024.

20She expresses concern that there will be duplication of costs involved if other counsel needs to be instructed, given the volume of documents produced in the case to date, and the lack of familiarity with those documents that new counsel would face. In their Costs Notification filed pursuant to orders which I made on 19 April 2024, her solicitors estimate that she will incur total costs of approximately $10,000 (including counsel’s fees) if her preferred counsel appears, and an additional "$22,000+" over and above that amount if alternate counsel has to be briefed.

21Quite how that sits with the fact that fees of $18,672.50 have been paid to her preferred counsel in total to date,[9] where on the wife’s evidence that counsel has "appeared at all substantive hearings, save for two hearings in 2018 which predominantly related to children’s matters",[10] and was "briefed for and assisted in the preparation for the five-day trial listed in May 2021, which was then adjourned",[11] is not clear. The solicitors’ estimate suggests that the fees of alternate counsel to prepare for and appear at a one-hour interim hearing on 6 May 2024 will exceed the total fees charged by the wife’s preferred counsel for all of the work just described.

[9] Wife's Cost Notification Letter filed 22 April 2024.

[10] Wife's Affidavit filed 15 April 2024 at [29].

[11] Ibid.

22The wife says that she is made to feel anxious and depressed, and generally unwell, at the prospect of the interim hearing and that those effects are exacerbated by the prospect of the absence of her preferred counsel.[12] She says that she is currently seeing an unnamed mental health professional; no evidence is adduced from that person.[13]

The husband’s response

[12] Ibid [34].

[13] Ibid.

23The husband’s case is simply put. He says that he is running out of money and that both he and the children will be prejudiced if the hearing of the matter is delayed.[14] He says that the wife and her solicitors have had ample time to organise alternative counsel, if in fact briefing counsel is necessary.

Disposition

[14] As summarised in correspondence filed by the husband's solicitors on 27 February 2024; Wife's Affidavit filed 15 April 2024 at [22].

24Much is made on behalf of the wife of her professed willingness to have the scheduled hearing listed to a slightly earlier date, or a date only a few days later, to accommodate the availability of her preferred counsel without prejudice to the husband. The difficulty with that is as earlier noted. The wife is represented by a specialist family law firm, yet the basic step of making enquiries with the Court as to judicial availability before trying to reach agreement with the husband’s lawyers as to a relisting, was inexplicably not taken.

25The Court tries to accommodate the availability of counsel where it reasonably can, necessarily subject to judicial availability. Whether or not it is reasonable to extend that accommodation in a particular case is assessed in accordance with well-established principles.

26The overarching responsibility of the Court is to do justice between the parties. Where an accommodation is sought, whether in terms of an adjournment or for that matter an initial listing, the Court should consider the nature of the issues in dispute and weigh the relative prejudice to each party which would arise from either of the two possible responses to the request. Where an accommodation is sought by one party, and there is no or minimal disadvantage to the other, then as between the parties there may be no difficulty; that said, the time of the Court is a publicly funded resource and the efficient management of its overall workload, and not simply the individual case in question, is properly considered.[15]

[15] State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

27Other secondary principles must also be borne in mind. Parties are entitled to be represented in proceedings. Where they are able to do so, they are entitled to choose by whom they are represented. That does not, however, extend to a right or even a reasonable expectation that their choice of counsel creates an entitlement to have the availability of that counsel accommodated without question.[16]

[16] See Sali v SPC Ltd and Another (1993) 116 ALR 625 and Na & Tiu [2017] FamCAFC 269.

28The present application must fail for a number of reasons.

29First, as earlier noted, I am not available to hear the matter on any of the dates proposed to suit the availability of the wife’s preferred counsel. The proposition that the listing sought should nevertheless be accommodated to the detriment of other litigants by deferring or delaying hearings already scheduled, is self-evidently unacceptable.

30Second, no other judge is available to hear the matter until late July. Even were that not the case, the proposition that a judge unfamiliar with the case should undertake what would otherwise be unnecessary work to prepare it, so as to avoid counsel unfamiliar with the case having to do the same, need only be stated to be dismissed.

31Third, and fundamentally, the required comparison of prejudice as between the parties favours the husband. His application was filed in in a timely manner in February and listed for hearing to a date roughly meeting his estimate as to when his available funds would run out. The potential prejudice to him if the hearing is delayed for nearly three months as proposed is obvious.

32The prejudice to the wife if the hearing is not delayed, with no disrespect to her preferred counsel, is largely illusory.

33The wife has been represented throughout the proceedings by the same firm, which promotes itself as "Perth’s Leading Family Lawyers". She has, to date, incurred $419,600 in legal fees, of which $400,928 has been paid to or remains to be billed by her solicitors as distinct from counsel.[17] Her lawyers may accordingly be presumed to be both fully familiar with her case and competent to present it.

[17] Wife's Cost Notification Letter filed 22 April 2024.

34Even were that not so, as the wife points out in her affidavit, the husband’s application listed for hearing on 6 May 2024 is largely a repeat of applications already heard and determined for the reasons set out in the first and second judgments. The relevant law has not changed from that set out in those judgments, and the factual matrix has only changed by virtue of the passage of time. That law and those facts are not only set out in the judgments but are also addressed in the written submissions filed on behalf of the wife on 2 November 2022 and 10 September 2021. Orders are already in place for the filing of written submissions for the forthcoming hearing.

35It must also be borne in mind that what is upcoming is an interim hearing, which will be determined on the papers and without cross examination. The affidavits to be relied upon by each party have been filed. The relevant facts are uncomplicated, and the law is clear. While it is understandable that the wife would prefer to have counsel with whom she is familiar and comfortable argue the case, objectively the proper presentation of the interim argument does not require the skill set of Senior Counsel. That is particularly so when written submissions (which can be prepared with the benefit of counsel’s input if that is thought necessary) are to be filed, and oral submissions are to be time-limited pursuant to the Case Management Guidelines.

36The Form 2 Application of the wife filed on 15 April 2024 will be dismissed.

Costs

37The husband seeks his costs of the application fixed in the sum of $726. Sensibly, those costs were not increased by the preparation and filing of a Form 2A Response or affidavit, when the facts suggesting prejudice to the husband arising from the delay sought were already covered in his affidavit filed on 27 February 2024. The reasonableness of the quantum of costs claimed was appropriately conceded by counsel for the wife.

38The financial circumstances of the parties are as already briefly described earlier in these reasons, and as set out their financial statements most recently filed. A comparison of those financial circumstances does not of itself justify an order for costs, but by the same token does not mitigate against it.

39The wife’s application in question has been wholly unsuccessful. Frankly, it should never have been brought. The fundamental step of enquiring as to judicial availability should have been taken prior to the application being filed; it was not. Even were it not for that issue, the application was always lacking in merit. An order for costs is clearly justified, and the amount sought is reasonable.

40There will be a further order requiring the wife to pay the husband’s costs fixed in the sum of $726.

Orders

1.The Form 2 Application filed by the Applicant wife, MS JOYCE, on 15 April 2024 is dismissed.

2.The Applicant wife must pay the Respondent husband's costs of the said application, fixed in the sum of $ 726.

These reasons are the reasons for decision delivered on 23 April 2024, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

23 APRIL 2024