kN v Jonathon Paul WILKIE-SNOW - [2009] ACTSC 159

KN v JONATHON PAUL WILKIE-SNOW
[2009] ACTSC 159 (4 December 2009)

Jurisdiction of Courts (Cross-vesting) Act 1993
Domestic Relationships Act 1994.
Court Procedures Rules 2006

Oshlack v Richmond River Council (1998) 193 CLR 72
Brennan v McGuire [2009] ACTSC 84

No. SC 758 of 2007

Judge: Master Harper
Supreme Court of the ACT

Date: 4 December 2009

IN THE SUPREME COURT OF THE     )
  )          No. SC 758 of 2007
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:KN
Plaintiff

AND:JONATHON PAUL WILKIE-SNOW
Defendant

ORDER

Judge:  Master Harper
Date:  4 December 2009
Place:  Canberra

THE COURT ORDERS THAT:

The defendant’s costs of the application in proceeding dated 14 July 2008 be paid by the plaintiff.

The plaintiff’s oral application for transfer of the proceeding to the Family Court of Australia be dismissed.

On 10 July 2009 I ordered that the solicitors on the record for the plaintiff be restrained from continuing to act for her. I published reasons for the decision. In concluding those reasons I said that I would hear the parties as to costs.
The matter was listed before me on 11 September for submissions in relation to costs. I had the benefit of written submissions on behalf of the defendant dated 30 July 2009, written submissions on behalf of the plaintiff dated 10 September 2009 and written submissions on behalf of the defendant in reply, dated 11 September.
In brief, Mr Farrar, solicitor for the defendant, submits that his firm gave ample warning to the plaintiff’s solicitors of the fact that the application for a restraining order would be made, and the basis for it. The plaintiff chose to contest the application, and did so at considerable length. She was unsuccessful. Costs of the application should follow the event.
Senior counsel for the plaintiff provided his submissions to the defendant’s solicitor only the day before the hearing. The defendant’s solicitor did well to provide a written response by the following morning. I shall attempt to summarise the plaintiff’s submissions. I have some difficulty in following the principal submission, which seems to be based on an unexpressed premise that I decided the application incorrectly. I note that there has been no appeal from my decision, and such a submission can have no substance.
The plaintiff next submits that the costs of the application should be reserved for determination by the judicial officer who determines the principal proceeding. The plaintiff asserts that in entering an agreement, she acted under duress by the defendant. She seeks an order setting the agreement aside. Her counsel submits that it would be unfortunate for an order to be made that a victim of duress pay the costs of the party who caused the duress. Counsel further submits that the trial judge will have the benefit of all relevant evidence and will be better able than I am to decide how to exercise the discretion as to the costs of the present application.
I am not satisfied that there is any merit in this submission. The present application has been determined adversely to the plaintiff. In determining the application, I have not been asked to make any findings of fact as to the issues between the parties which arise for determination in the principal proceeding. The issue which arose on the present application was a discrete one. Nothing that happens on the hearing of the suit can affect the order I have made or the reasons for it. I am satisfied that I am in a better position to exercise the discretion as to who should bear the costs of the present application than the trial judge will be.
Counsel for the plaintiff further submits that the issue which arose for determination on the present application was one in which the public could legitimately be said to have an interest. It was said to be an evolving area of the law. Counsel referred to the decision of the High Court of Australia in Oshlack v Richmond River Council (1998) 193 CLR 72. In that case a judge at first instance in the Land and Environment Court of New South Wales had made no order as to costs against a person whose challenge to the grant of a development application by a local government authority had failed at first instance. The NSW Court of Appeal had reversed the decision and ordered the objector to pay the Council’s costs. The High Court by majority (Gaudron, Gummow and Kirby JJ, Brennan CJ and McHugh J dissenting) allowed the appeal and restored the order made at first instance. The High Court applied accepted principles as to when an appellate court should interfere with a decision of a court at first instance in exercising a discretion as to costs. To the extent that Oshlack may be seen as authority for some general proposition that costs will not necessarily follow the event in public interest litigation, it may simply be said that Oshlack was clearly a public interest case whereas the present application was an application inter partes in a dispute between two individuals. There is no question of an administrative decision by a public authority being under challenge, and no basis for seeing the plaintiff as somehow taking a stance to advance the interests of the wider community on a matter in the public domain.
In the present case, the plaintiff, in the knowledge of the arguments which would be put to the Court, elected to defend the application. She failed in that endeavour. She must be taken to have been aware of the risk she faced as to costs in making her decision. Costs should follow the event. The plaintiff will be ordered to pay the defendant’s costs of the application.
Senior counsel for the plaintiff made an oral application on 11 September for an order that the principal proceeding be transferred to the Family Court of Australia pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1993. He relied on a decision of mine, Brennan v McGuire [2009] ACTSC 84, in which I had, of the Court’s own initiative, ordered the transfer of a claim under the Domestic Relationships Act 1994. In doing so I referred to specific features of that case, and to facilities available within the Family Court which, I was satisfied, meant that the transfer was in the interests of justice. I said in the course of my reasons that it was not necessarily the case that every pending action under the Domestic Relationships Act should, in the interests of justice, be determined by the Family Court.
Senior counsel for the plaintiff has not drawn attention in his written submissions to any particular features of the present action which would assist the Court in making a decision whether or not to order a transfer. Mr Farrar in his submissions in reply in relation to costs said that the transfer application had not previously been foreshadowed and that he had first become aware of it when he read the plaintiff’s submissions. They had been received at his firm at 1.48 pm on the previous day.
In the circumstances I am not at this stage persuaded that a transfer to the Family Court is justified or required. The plaintiff’s application in that regard will be dismissed.
The Court would generally expect such an application to be made by the filing of an application in proceeding, served in accordance with the Court Procedures Rules 2006. There are times when the Court will entertain an urgent oral application but it is not suggested that there was anything urgent about the application for transfer in the present case.
I note with some concern that notwithstanding my order of 10 July 2009 the solicitors for the plaintiff remain on the record. No notice of change has been filed. There is nothing in senior counsel’s submissions of 10 September to identify any other solicitor as instructing him, nor did he announce any change in this regard on 11 September. This would give rise to a reasonable apprehension on the defendant’s part that my order has been ignored. If the plaintiff has instructed new solicitors, they should file a notice to that effect without delay. If she has not, she should file a notice that she is acting in person. If she delays in doing so, her previous solicitors should take the steps prescribed by the Rules to have their firm taken off the record, and should do so promptly.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 4 December 2009

Counsel for the plaintiff:  Mr GP Brzostowski SC
Counsel for the defendant:  Mr D Farrar
Solicitors for the defendant:  Farrar Gesini & Dunn
Date of hearing:  11 September 2009
Date of judgment:  4 December 2009