May and Longley and Anor (No.2)

[2015] FCCA 2539

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAY & LONGLEY & ANOR (No.2) [2015] FCCA 2539

Catchwords:
FAMILY LAW – Ruling on costs.

Legislation:

Family Law Act 1975, ss.70NCB, 117, 117(2A)

Munday v Bowman (1997) FLC 92-784
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 46 FCR 225

Applicant: MS MAY

First Respondent: MR LONGLEY

Second Respondent: MS MANN

File Number: MLC 1151 of 2008

Judgment of: Judge Burchardt

Hearing date: 27 July 2015

Date of Last Submission: 7 August 2015

Delivered at: Melbourne

Delivered on: 30 September 2015

REPRESENTATION

Counsel for the Applicant: Mr J. McConvill

Solicitors for the Applicant: James McConvill & Associates

Counsel for the Respondents: Ms Mansfield

Solicitors for the Respondents: Pearce Webster Dugdales

ORDERS

1. The Applicant pay the Respondents’ costs on an indemnity basis, fixed at $15,720.50. 

   IT IS NOTED that publication of this judgment under the pseudonym May & Longley & Anor (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 1151 of 2008

MS MAY

Applicant

And

MR LONGLEY

First Respondent

MS MANN

Second Respondent

REASONS FOR JUDGMENT

1. On 18 May 2015 the applicant paternal grandmother filed a Contravention Application. It alleged two contraventions of orders made by Judge Hartnett on 13 August 2008. Those orders were made by consent. The net effect of those orders for present purposes was that the applicant’s time with [X] (“[X]”) born [in] 1998 was extremely limited. The Contravention Application was heard on 27 July 2015. For reasons to which I shall return, albeit briefly, the Contravention Application was dismissed. The respondents sought their costs, and I set a timetable for written submissions as at that time I had no information inter alia about the parties’ financial circumstances, with judgment thereafter to be on the papers. Since then the respondents have filed comprehensive written submissions. The applicant’s solicitor has written to the Court indicating that the applicant will not be filing any written submissions.

2. The Contravention Application alleged that on 4 April 2015 the respondent contravened the extant order 5 by failing to ensure that [X] was available to receive her telephone call.

3. I dismissed this contravention summarily because order 5 relevantly permitted the applicant to telephone [X] between 6.00pm - 7.00pm on Easter Sunday. The date of the alleged contravention was put at 4 April 2015, which was Easter Saturday. It was immediately obvious therefore that the respondents could not have contravened the order and I dismissed the application accordingly. As I think I observed at the time, contravention applications are quasi criminal in their character and amendments are not in my view appropriate, albeit that no application to amend, was as I recall it, pressed.

4. The other contravention allegation was said to have happened on 9 November 2012 some two and a half years before the Contravention Application was filed.  I dismissed that summarily on the footing that it was stale.  In my view a contravention of this character should not be pursued two and a half years after the event.

5. It may be noted that the material filed in response by the second respondent appears convincing on its face, and would have been highly likely in any event to have established a reasonable excuse.

6. Clearly the Court has power to make a costs order in these circumstances (section 70NCB of the Family Law Act 1975 (“the Act”)).  The respondents seek their costs fixed on an indemnity basis, or on a party-party basis if that not be acceded to.

7. It appears uncontroverted that [X] has not seen the applicant grandmother since the orders were made in 2008 and had expressed to the family report writer in that set of proceedings a lack of desire to do so. He is now almost 17 years old (and is likely  to be 17 by the time these Reasons are settled) and was clearly approaching that age at the time the application was filed. Correspondence annexed to the parties’ materials shows a very disturbing endeavour by the applicant grandmother to have him go and live with her as his primary carer notwithstanding the almost complete absence of contact in the in intervening years.

8. This is not the only concerning conduct of the applicant grandmother and her agents. Despite having been refused leave to file subpoenas on medical practitioners in the United Kingdom, and being told by Melbourne Registry staff, it would appear, that there was no jurisdiction to issue the subpoenas (see affidavit of Mr James Andrew McConvill sworn 23 July 2015, paragraphs 4 and 5), the applicant caused those practitioners to be served. Surprisingly they complied. One of the issues in the proceeding was whether inspection should be permitted. I refused such permission for obvious reasons. To proceed in this fashion was clearly an abuse of process.

9. On 30 June 2015 the solicitors for the respondents wrote to the applicant’s solicitors making a number of assertions which supported the submission that the applicant’s applications were frivolous and vexatious.  The matters set out in that letter at paragraphs numbered 1 to 6 seem effectively uncontroversial as things now stand, and I repeat what was said at paragraph 6:

   “Your client’s application for final orders for [X] to be made to leave his family, school and friends, and relocate interstate to live with his 82 year old grandmother is frankly absurd.”

10. The letter put the applicant on the clearest notice that indemnity costs would be sought in the event that the applications were dismissed.

11. I agree with the characterisation just set out above.

12. It is not necessary to say a great deal more about the character and nature of the application and the affidavit material filed with it.  It is clear that the applicant has proceeded on a wholly misconceived application which was devoid of merit and doomed to fail.

13. Against this brief introductory background I come now to the question of costs.

14. This is a case in which the Court should, in my opinion, exercise the discretion given to it by s.117 of the Act to make an award of costs. The utterly misconceived nature of the application and its woefully inadequate prospects of success, which should have been clearly understood by the applicant and her advisers, makes this so. They were put on the clearest notice by the solicitors for the respondents and should have paid far greater heed to what they were told.

15. I was concerned as to the lack of information about the parties’ finances.  The first respondent is in well paid employment as an academic in the United Kingdom but does not appear to have a substantial amount of assets in comparison with his age.  The second respondent is in reasonably well remunerated employment as a public servant in Canberra but likewise still has the costs if bringing up [X] and needs still to establish herself for her old age.

16. The applicant grandmother is some 82 years of age and has expressly disdained putting on any material as to her financial circumstances. From the materials in the file more generally, however, it is apparent that she has been able to afford to visit the United Kingdom relatively frequently, and most recently she offered to deposit $1,500 into a bank account for [X]. I note that she says in one affidavit that her estate will not now be as substantial as it might have been because of the costs of litigation, but doing the best I can on the limited information available, there does not seem to be anything that suggests that the applicant is unable to meet an order for costs.

17. The next matter to which the Court is required to have regard, pursuant to s.117(2A) is Legal Aid, which does not appear to be relevant.

18. The conduct of the applicant in relation to the proceedings has been in part outrageous. The subpoena episode in the United Kingdom speaks for itself.

19. The proceedings have not been rendered necessary by a failure of a party to comply with previous orders of the Court.  I dismissed the Contravention Application.

20. The applicant has been wholly unsuccessful in the proceedings and, in my view, this was always going to be the case.

21. Although the respondents made no offer to settle the matter, they did put the applicant on the clearest notice of their intention to pursue costs.

22. The written submissions of the respondents point to the age of [X] as a relevant consideration and the fact that he is totally estranged from the paternal grandmother.

23. In my view, this is really no more than a subset of the applicant’s failure to succeed and does not add anything to the force of the submissions made.

24. At paragraph 15 of the written submissions there is an extract of the judgment of Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84660 where Holden CJ said:

    “(a)   Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success.  In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts: see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.”

25. I accept the written submission of the respondents at paragraph 16 that:

    “It is submitted that the above summary is a reflection, inter alia, of the facts and circumstances in the case.”

26. I am also required to consider whether costs should be ordered on a party-party basis or, as the respondents seek, an indemnity basis.

27. It is not necessary to traverse again the well-known passages in the judgment of Sheppard J in Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 46 FCR 225 about indemnity costs. His Honour’s observations have been applied very many times by a number of different courts over the years. It is to be borne in mind that indemnity costs are not the usual order. They are an order made where the conduct of a party has been such as to make it inappropriate for the successful party to bear the burden of costs.

28. This is a case which, in my view, cries out for an indemnity costs order.  The applicant’s case was always hopeless and most probably should never have been brought.  The respondents are not so rich that paying costs is not a matter of any moment for them.  There is no proper basis in all the circumstances in which they should be required to do so.

29. In my view, the applicant should pay the respondent’s costs fixed at $15,720.50.  The sums claimed in the respondents’ schedule are no instance unreasonable. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  30 September 2015