Martin & Martin & Anor (No 6)

[2014] FamCA 1204

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN AND ANOR (NO 6) [2014] FamCA 1204

FAMILY LAW – PROCESS AND PROCEDURE – Adjournment – file to be returned to the Court – Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Martin

RESPONDENT: Ms Martin

INTERVENOR: X Firm

FILE NUMBER: MLC 9829 of 2007

DATE DELIVERED: 18 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: Septimus Jones & Lee

THE RESPONDENT:	No appearance
COUNSEL FOR THE INTERVENER:	Dr Ingleby

SOLICITOR FOR THE INTERVENER: X Firm

Orders

1. That the husband’s application for interim orders and the third party’s response thereto are adjourned to the trial date which is 16 March 2015.

2. That the file held by Septimus Jones and Lee of the wife’s former solicitors be forthwith returned to the Court by those solicitors to be lodged with the subpoena under which it was produced.

3. That the costs of the third party of $3500 this day are fixed as such and reserved to the trial.

4. That the third party can uplift and replace the trial affidavit on the court file.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin and Anor (No. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9829 of 2007

Mr Martin

Applicant

And

Ms Martin

Respondent

X Firm
Intervenor

REASONS FOR JUDGMENT

1. This is an application for costs arising out of an adjournment. The costs sought are $3500, which are undoubtedly on an indemnity basis. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings in this Court each party shall bear their own costs unless there are circumstances to justify departure from that principle. If the Court is contemplating a departure, it must take into account the matters set out in s 117(2A) of the Act. The justifiable circumstances here, in my view, is that the application was listed. It was listed on an urgency basis, but the material was, to say the least, scant, if at all, and it is filled with what I would have described as inappropriate and scandalous material.

2. I appreciate that Mr Martin is not represented, but this case has been going through this Court for years.  It began in 2007.  It is in its seventh anniversary.  So, to that extent, Mr Martin ought to know better than providing that sort of material.  As a result of my indication that the matter cannot succeed on the basis of the evidence before me, he sought that the matter be stood down, got some advice, and now seeks an adjournment.  He wanted the matter to be adjourned to be heard tomorrow, or later today.  This Court does not have the resources to be able to do the sorts of things he wants to do on that basis. 

3. That’s a justifiable reason, in my view, therefore, to make an order for costs when he then seeks to put the case off.  The best opportunity that the Court will have to hear the matter is on 14 January, because of judges needing to have some time off themselves.  So, on that basis, the matter will be adjourned to 14 January. 

4. Counsel for the respondent intervener seeks costs of $3500. Whilst that probably is in excess of the scale, having regard to the nature of the matter, and the fact that this material was scandalous and inappropriately put before the Court, this is a case where an order for indemnity costs should be paid. I take into account that there are matters in s 117(2A) that need to be considered. One of them is the financial circumstances of the parties. We are talking about millions of dollars in dispute here. Whether that is indeed what the asset pool is will, no doubt, unfold, but it is hard to imagine, in circumstances where the litigation has been going for a long time, and Mr Martin is now saying that he is not able to pay his lawyers what he owes them, which is a quarter of a million dollars, it is hard for me to imagine that people are impecunious.

5. In relation to the question of conduct, I have already made by views clear about the nature of the application and the material that supported it.  On that basis it seems to me that I am entitled to conclude that it was improperly put before the Court, and I will make an order for $3500 costs. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 December 2014.

Associate: 

Date:  27 January 2015