Olwyn and Olwyn and Anor

[2009] FamCA 1094

FAMILY COURT OF AUSTRALIA

OLWYN & OLWYN AND ANOR [2009] FamCA 1094

FAMILY LAW – EVIDENCE
FAMILY LAW – COSTS

APPLICANT: Ms Olwyn

RESPONDENTS: Mr Olwyn and Mr Olwyn Jnr

FILE NUMBER: MLC 6414 of 2007

DATE DELIVERED: 28 April 2009

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 28 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.A. Glover

SOLICITOR FOR THE APPLICANT: V M Roccisano

COUNSEL FOR THE FIRST RESPONDENT: Mr C.C. Ham

SOLICITOR FOR THE RESPONDENT: Mirko Bagaric Lawyers

COUNSEL FOR THE SECOND RESPONDENT Mr C. Durston

SOLICITOR FOR THE SECOND RESPONDENT Rochford Lawyers

Orders

IT IS ORDERED:

1. That within forty eight (48) hours the second named respondent, Mr Olwyn Jnr, provide to each other party to the proceedings completed taxation returns including financial statements in respect of any business operated by him for the financial years ending 30 June 2005, 2006 and 2007.

2. That on or before 12.00 noon on 6 May 2009 the second named respondent, Mr Olwyn Jnr, produce to the practitioners for the husband all primary source documents involved in preparation of the financial returns and taxation returns for any business operated by him since 30 June 2004.

3. That the wife forthwith provide to the husband’s solicitors passwords for any disks provided by way of discovery in these proceedings AND IT IS NOTED that to date the wife asserts three such disks have been provided.  In the event that passwords can not be provided or, after reasonable endeavour, the practitioners for the husband are unable to open the disks then Counsel for the husband and the wife be at liberty to contact my Associate, …, to have the matter mentioned before me forthwith.

4. That by 10.00 am on Wednesday 6 May 2009 the wife produce the primary source material, such as invoices and the like, for any business operated by her from 1 February 2006 and do so in such a manner that the documents will arrive at the office of the practitioner for the husband on 6 May 2009.

5. That the time for compliance by the husband with paragraph 5 of the Order made on 13 November 2008 be extended to 4.00 pm on 20 May 2009.

6. That the time for compliance by the wife and the second named respondent with paragraph 6 of the Order made on 13 November 2008 be extended to 4.00 pm on 9 June 2009.

7. That within fourteen (14) days the second named respondent pay to the husband’s practitioner costs of and incidental to today fixed in the sum of $330.00.

8. That I reserve for consideration on the next date on which this matter is mentioned or heard the issue of the wife’s liability for a contribution to the husband’s costs of this day, fixed in the sum of $330.00.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6414 of 2007

MS OLWYN

Applicant

And

MR OLWYN AND MR D OLWYN

Respondent

REASONS FOR JUDGMENT

1. This matter has been listed for mention before me at the request of the practitioners for the husband.

2. The parties attend court. Mr Ham appears on behalf of the husband and Mr Glover appears on behalf of the wife.  Mr Durston appears on behalf of the second respondent.  The second respondent is not at court today but has been contactable by Mr Durston when required.

3. The three issues between the parties have been resolved. I have pronounced orders, largely based on the fact that they suited each of the parties, although I did not express them to be by consent. 

4. The outstanding issue is the matter of costs.  The husband claims costs of today fixed in the sum of $660 against the son and the mother.  He claims that they be jointly and severally liable for the amount of $660, although I understand he would also take an order against each of them for $330.

5. Insofar as the second-named respondent is concerned, it was ordered on 13 November 2008 that he provide amended taxation returns for a transportation business on or before 15 February 2009.  The discussion that led to that order being made is found in transcript which is on the court file.

6. On 13 November 2008 there was the following interchange between myself and Mr Durston who appeared on behalf of the second‑named respondent:-

   MR DURSTON:       At the end of the day, your Honour, we want to be relieved of any further part in this matter subject to certain assets being physically put back into the matrimonial pool is probably the easiest way of putting it.  My client doesn’t want to have to go through the financial impost of going to trial over this.  In the response and affidavit in support will be quite clearly assets identified so that the court could make an order in relation to those assets, we say, which will be returned, as it were, to the matrimonial pool and in return for that – and I’m certainly summarising it – we would seek to be relieved of further participation in this matter.

   HER HONOUR:       Do you want any money for the asset?

   MR DURSTON:       To be clear, your Honour, we’re happy to put money into the matrimonial pool.

   HER HONOUR:       I know, that’s why I’m wondering if you want any value for it because they might just say yes.  That might not say that’s it, and I can’t limit anyone up to a certain time from joining your client again to get other things. 

   MR DURSTON:       Yes, and what we would be seeking would be relief complete, so that we weren’t pursued at all in the future.  Now, that might be a rather---

   HER HONOUR:       It’s not up to me to advise you, but you tell me again – or tell me for the first time – what do you need in order to be able to complete the documents that you’re required to complete?

   MR DURSTON:       Okay.  We want to be declared the owner of a truck---

   HER HONOUR:       No---

   MR DURSTON:       Are you talking just in particulars, your Honour?

   HER HONOUR:       --- what do you want by way of material and information?

   MR DURSTON:       What we need, your Honour, is time to have the last four year’s tax returns completed anew.

   HER HONOUR:       Amended?

   MR DURSTON:       Yes, your Honour.  Now, the appointments are being made to initiate that, but how long it takes is a question for the appointed accountants.

   HER HONOUR:        Who are they?

   MR DURSTON;       [S Company] in [a western Melbourne suburb], your Honour.  There’s an appointment for 20 November.  It was earlier but because of these proceedings it’s been put back.  So once those returns have been complete we will have financials and we will then be able to see with clarity our own position.

   HER HONOUR:       When do you think returns will be completed?  Prudently it wouldn’t be until about mid-February, would it?

   MR DURSTON:       It would be prudent to take that course and to seek perhaps a further directions hearing in relation to that.

   HER HONOUR:       You would lose all of one month, wouldn’t you?  You’d either lose all of December or all of January for Christmas.

   MR DURSTON:       I think all in January, in all reality, or half of December and all of January.

   HER HONOUR:       Then he needs other accountants because you really need the tax returns lodged ---

   MR DURSTON:       But the problem is I’m guessing on his behalf which is not fair, your Honour.  The tax agent knows that we need these completed and they will be amended returns, and I have no doubt that the tax agent is going to have to inquire of previous professionals, certain matters.  So I don’t want to guess it one way or another, as far as the time is concerned.

   HER HONOUR:       You’ve heard that the husband seeks a hearing in February, and you’re not in a position to support the wife, are you, in seeking a hearing in February?

   MR DURSTON:       No, it would be imprudent of me to say that, your Honour, I would suggest.

7. I recall that all parties were at court on 13 November.

8. I am informed by Mr Durston that the reason that the second‑named respondent thought that amended returns were necessary is that his mother had prepared taxation returns for his business and he was not in a position to vouch for their accuracy.  He thought it most prudent at that point that they be redone.  However, upon producing the relevant primary source documents and financial records to his accountant and upon his accountant examining the taxation returns that had previously been lodged on behalf of the second‑named respondent, the accountant advised that the returns did not need to be amended and the second named respondent took that advice.  Unfortunately, the decision that no amended returns would be prepared was not communicated to the practitioners for the husband.  Accordingly, they have been waiting for the amended returns since 15 February 2009.  In that respect, they wrote letters to the practitioners for the second‑named respondent on 23 February, 13 March, 2 April and 13 April 2009.

9. Mr Durston is a sole practitioner and has advised me that he was involved in bushfire relief works from 5 February to 28 February 2009.  He was then indisposed due to ill health from 9 April until today.  Today is in fact his first day back at work.  During that time, he explains that his client was unable to get any advice from him and he was unable to assist his client.  I accept that is the case.  However, the husband has incurred costs that he should not have incurred.  Looking at the time lines, Mr Durston became unavailable 10 days prior to the due date for the documents to be provided.  There is then all of March 2009 during which his client could have complied or told them of his decision about confirming the existing returns.

10. It may be that it is not appropriate for the costs to be visited upon the second named respondent and, to that end, there may be some arrangement between the solicitor and the second‑named respondent.  However, I am of the view that the husband ought not be out of pocket in this instance.

11. In relation to the wife, an order was made on 3 September 2008 which required production of documents at the end of October 2008 in anticipation of a conciliation conference.  The conciliation conference occurred, notwithstanding that the documents had not been provided.  As I understand it, they were not provided by either party.

12. I have been handed a bundle of documents being correspondence from the husband's practitioners to the wife's practitioners covering the period 18 March 2009 to 23 April 2009.  I am satisfied that there was an agreement that the husband and the wife would exchange documentation with one another.  Originally it was to be exchanged and available for inspection on 17 April 2009.  That was then changed to 21 April 2009 and then it was changed to 23 April 2009.

13. To date, the husband has provided some 700 pages of documents.  I do not know whether that is a complete set of the documents that he ought to provide but I note that there has not been any complaint that the discovery he has made or the production of documents which he has made is inadequate.

14. In return, the wife has apparently provided some three taxation returns and yesterday sent a further disk of documents, which contains accounting records.  This is the third such disk that has been provided; the first two, it is said by the husband's practitioners, cannot be opened without a password.  Today, counsel sensibly resolved the issue of the password.  Anyway, the husband says that he is out of pocket because the wife has not provided the documents and it has been necessary to have the matter mentioned.

15. It was appropriate for the matter to be mentioned today.  This matter is listed for trial in late June 2009.  It is imperative that these matters be attended to promptly so that that trial date can be preserved because it is the case that the matter will start on that day based on the evidence as it then is. 

16. Mr Glover appears today.  There is no instructing solicitor.  Unfortunately in spite of what Mr Glover says is six attempts, he has been unable to contact his instructing solicitor to get instructions about what has been provided and when.  He seeks that costs be reserved.  I will reserve the issue of liability as between the husband and the wife in relation to costs but in doing so, I make it clear that it is a matter that should have been able to be argued today and a determination should have been made on it today.  Consideration of liability for costs does not get better with the effluxion of time.  Therefore any time spent on this issue subsequently will probably be the subject of a further costs application because it ought to have been dealt with today.  Mr Glover's practitioners ought to have been available and ought to have been in a position to provide Mr Glover with what instructions he requires.

17. In making orders for costs, I have regard to the matters set out in section 117(2) of the Act.  Parties to proceedings bear their own legal costs unless I am satisfied that the circumstances of the case justify me making an order that one party pay some or all of the costs of the other.  There are various matter which I may take into account in deciding whether an order for costs is justified.  Not all of them are relevant.

18. I have some limited knowledge of the financial circumstances of each of the parties.  Broadly speaking, however, I am satisfied that none of them can afford to incur legal costs unnecessarily.  I understand that no-one is in receipt of legal aid.

19. Subsection 117(2A)(c) which is most relevant factor to be considered.  It directs me to the conduct of the parties to the proceedings in relation to the proceedings, including the conduct of the parties in relation to pleadings, particulars, discovery, inspection and directions et cetera.

20. It appears to me that the wife may well not have provided documents which she has had in her possession and should have provided, but as I have said, I will examine that issue on the next date and when the wife has had an opportunity, through her solicitors, to put together her case in that respect.

21. Vis-a-vis the second‑named respondent, I am satisfied that an order for costs should be made.  He was required to provide documents, he failed to do so or to provide any adequate explanation until today.  As a result of not being advised that no amended taxation returns would be forthcoming, the husband has incurred legal costs.

22. It seems to me easiest in the circumstances to make an order that is equivalent to one-half of the costs claimed against the son.  If the wife successfully opposes the costs application with further evidence on the new date, I would not require the son to pay all of the costs of today because much of today has been associated with the actions of the wife.

23. I did not receive any submissions in relation to the quantum of costs. The quantum of costs will be as claimed.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  23 September 2009