Melville and Dent (No. 3)

[2009] FamCA 297

FAMILY COURT OF AUSTRALIA

MELVILLE & DENT (NO. 3) [2009] FamCA 297

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to proceed on undefended basis – Leave to husband’s former solicitors to intervene to protect their costs

Family Law Act 1975 (Cth)

Brown v Brown (2004) FamCA 1067
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tate v Tate (2000) FLC 93-047

APPLICANT: Ms Melville

RESPONDENT: Mr Dent

THIRD PARTY: Forte Family Lawyers

FILE NUMBER: MLC 3157 of 2006

DATE DELIVERED: 17 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

SOLICITOR FOR THE RESPONDENT: Ms Hall, Nevett Ford

SOLICITOR FOR THE RESPONDENT: Ms Lane, Forte Family Lawyers

Orders

1. That the hearing currently listed for 6 May 2009 be vacated.

2. That the wife have leave to proceed with her application seeking final orders on an undefended basis.

3. That the response filed by the husband on 29 September 2008 be struck out.

4. That the final hearing be fixed for 10.00am on 23 April 2009 subject to any part-heard case.

5. That the application in a case filed 2 April 2009 be otherwise dismissed.

6. That BY CONSENT OF THE WIFE, there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

7. That the solicitor for the third parties engross the minutes and deliver them by electronic transmission to my Associate this day.

8. That the husband be notified by the solicitors for the wife of these orders:

   (a)      by email transmission to his last known email address; and

   (b)      by email transmission to the New York solicitors acting for the wife on the property proceedings in the United States of America with a request that they forward these orders on to the husband’s solicitor in those proceedings.

9. That the wife’s costs of this day be reserved to the hearing on 23 April 2009.

10. That the costs of Forte Family Lawyers of this day be reserved to the hearing on 23 April 2009.

IT IS CERTIFIED:

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

2. That the reasons for judgment this day be transcribed and be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3157 of 2006

MS MELVILLE

Applicant

And

MR DENT

Respondent

And

FORTE FAMILY LAWYERS

Third Party

REASONS FOR JUDGMENT

1. There are two applications before me.  The first application was foreshadowed at the last mention of the matter some days ago when Ms Campbell, who is a partner of Forte Family Lawyers, appeared and indicated that they were no longer acting for Mr Dent and wanted to intervene in the proceedings between he and the wife obviously to protect their costs.

2. The application in a case pursuant to the orders that I made was filed on 9 April returnable this morning.  That application seeks a variety of orders, including that they have leave to intervene.  The orders otherwise relate to restraining orders in relation to both the husband and the wife about entering into matters that would finalise all property proceedings between the parties without notice to Forte Family Lawyers.

3. Ms Hall, whose firm was indicating through the relevant solicitor on the last occasion, has indicated this morning that the firm has no instructions to appear today and she does so as a matter of courtesy.  She has indicated that certain matters have been discussed with Mr Dent and in the event that they are not fulfilled by 5 o'clock on Monday night, the firm will file Notice of Ceasing to Act.  Leaving that issue aside, she obviously cannot say anything in relation to the application of Forte Family Lawyers before me this morning.

4. On that basis, and being satisfied that the application in the case has been served, I am prepared to say that there is no opposition to the orders being so made.  After some discussions between Mr Strum of counsel for the wife and Ms Lane as the solicitor acting for the third party, a minute was handed to me which I have marked as Exhibit A, and with some minor modification I will make orders in those terms which are made with the consent of the wife.

5. The second application which was foreshadowed when the hearing was before me on 2 April was that the wife would be pursuing the final property proceedings on an undefended basis.  On 2 April I ordered that the wife have leave to file an application in the case and an affidavit in support that day which was to be returnable at 9 o'clock on 17 April, which is today.

6. For reasons which puzzle me and, if anything, bemuse me, the application and affidavit was filed on 2 April, but it was fixed for hearing on 6 May which was to have been the trial date.  There can be no misapprehension on the part of Mr Dent in relation to that because, apart from anything else, he knew that he had to be here today in respect of the Forte Family Lawyers application.  His new solicitor, Ms Farrell, appeared and no doubt took details of the fact that the wife was going to make the application and that it was to be returnable before me today.  To that extent, the fact that the application was formally listed for 6 May means nothing.

7. I am satisfied that he is aware of these proceedings and has chosen not to participate.  Sadly, that is to some extent consistent with what his track record has been up until now.  Mr Dent has had a number of opportunities to participate in the proceedings and I will not retrace some of the reasons I have given on one if not two previous occasions.  But the fundamental reason why he was permitted to participate, notwithstanding his recalcitrance in the past was the fact that he was showing signs of desiring to finalise the matter and do whatever was necessary.

8. One of the things that encouraged me to ignore his recalcitrance was the fact that he said that he would be providing documents and fulfilling orders.  I am told by Mr Strum today - and the evidence seems clear from the affidavit filed on 2 April - that that has just not happened.  There is no point in me re‑canvassing all of the authorities of Tate v Tate (2000) FLC 93-047 and Brown v Brown (2004) FamCA 1067, as well as what the High Court said in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. I have done that at least once if not twice before.

9. There is no explanation as to why Mr Dent is not here today and, more importantly, there is no explanation as to why he has not complied with the fundamental discovery obligations that he has that I have previously mentioned.  Importantly, the lack of cooperation in these proceedings has been shown by the fact that yesterday Mr Dent provided a CD-ROM which Mr Strum has described as unintelligible in relation to some old corporate documents.  That is ironic, having regard to the fact that at least on a previous occasion I was told that there were boxes of documents.

10. It seems clear that Mr Dent either has no regard for his obligations and the need to have the matter heard or he makes no specific effort to try and get his own case in order.  On that basis, I can only conclude that he is not serious about pursuing the application for final orders that have been on the court's record since September 2008.  In the circumstances, the appropriate order to make is that his response filed on 29 September 2008 be struck out and that the wife have leave to proceed with her case on an undefended basis.

11. If Mr Dent - now being made aware by his current solicitors that the matter is listed, as I propose, earlier than 6 May - chooses to attend on the new return date and can somehow or another convince me that he ought to participate, having regard to all of the things I have previously said, I will contemplate that position at that time.  I will not rule out any situation at this stage, but the onus will be on Mr Dent to show that he is really serious about wanting to not only pursue his own case but to assist the court in resolving the outstanding issue between the parties.

12. There is no point in the circumstances in me leaving the hearing fixed as 6 May, having regard to the fact that Mr Dent has not complied with court orders and particularly having regard to the statement by Ms Hall on his current solicitor's firm's behalf that it is most likely that they will be filing a Notice of Ceasing to Act.

13. On that basis I can presume that the matter will take much less time than I previously anticipated and I see no reason why the matter cannot come forward to 23 April which is about two weeks ahead of what was previously scheduled and I have asked Ms Hall to notify Mr Dent accordingly if in fact they do file a Notice of Ceasing to Act.

14. In addition, I propose to make orders that just as a safety precaution, the wife serve Mr Dent with a copy of the orders that I am about to pronounce, and whilst he may have address details which might not be well known to the solicitor for the wife, they will be the best that can be made available as a back‑up to the fact that Ms Hall's firm will be letting him know as well.  He should be served through his email address, which has been used in the past.

15. There has been a dispute between the parties relating to a property in New York in the United States.  Both parties' material show that the litigation in that state has been conducted by lawyers representing each party.  Accordingly, the alternate method of service on Mr Dent is by sending a copy of these proposed orders to the solicitors acting for the wife in New York, with a request that they send a copy on to the solicitors who are acting for Mr Dent in that country.

16. The wife's application in a case filed on 2 April sought a number of other orders which related to the sale of that United States property, but having regard to the fact that I am bringing the case forward, there is little point in pursuing those matters today and counsel very sensibly has agreed that that is the better course.  I am satisfied that Mr Dent knew that the matters were on today and if he did not, that is a matter that he can take up in another place.  He has caused the wife to incur significant costs by not only the preparation of an application but also having the appearance here today, so to that extent, I will reserve the wife's costs and deal with that issue at the hearing on 23 April 2009.

17. I propose to certify it was appropriate for the lawyers to attend today and in particular, counsel.

18. The application in a case filed by Forte Family Lawyers was also something about which Mr Dent was aware and they have had to come along to court today to pursue their remedies because he has not agreed to the orders that they proposed.  In those circumstances, I propose to reserve their costs to 23 April as well.

19. In making those two reserved costs orders, I am not indicating exactly that I will make those costs orders on the day and the reason I am unable to make the orders today is that I would be required to contemplate all of the matters in s 117, but it seems pretty clear that Mr Dent shows scant regard for the procedures of the court and if he does attend on 23 April, he will need to be able to explain why it is that he was not here today and filed material and why in the circumstances the rule in s 117 that each party pay their own costs ought not to be departed from.

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  22 April 2009