PALLISTER & DONNELLY
[2015] FCCA 2768
•14 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PALLISTER & DONNELLY | [2015] FCCA 2768 |
| Catchwords: PRACTICE AND PROCEDURE – Directions – appointment of valuers – where parties disagree about valuers to be appointed – where one party failed to comply with a Court Order – whether an order for costs should be made against the party who failed to comply with the Order. |
| Legislation: Family Law Act 1975 (Cth), ss.90SF, 117 |
| Applicant: | MS PALLISTER |
| Respondent: | MR DONNELLY |
| File Number: | CRC 110 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 22 September 2015 |
| Date of Last Submission: | 22 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 October 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr O'Kane |
| Solicitors for the Applicant: | John R. Quinn & Co |
| Solicitor for the Respondent: | Ms Rowland |
| Solicitors for the Respondent: | Lynn & Rowland |
ORDERS
The Response to an Application in a Case filed on 21 September 2015 is dismissed.
The Applicant MS PALLISTER must comply with Order 5 made on 26 June 2015 within seven (7) days.
Within twenty-one (21) days of the date of these Orders the Applicant MS PALLISTER must file and serve a written submission setting out the reasons why she should not pay the costs of the Application in a Case filed by the Respondent MR DONNELLY on 18 August 2015.
IT IS NOTED that publication of this judgment under the pseudonym Pallister & Donnelly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 110 of 2014
| MS PALLISTER |
Applicant
And
| MR DONNELLY |
Respondent
REASONS FOR JUDGMENT
Application in a Case
This is an Application in a Case by the Respondent in the substantive Application, seeking directions about valuations of the assets that are the subject of the Applicant’s Application for property settlement. The Applicant opposes the directions sought and seeks other directions.
Background
The Applicant filed her substantive Application on 16 April 2014, seeking property orders arising out of a de facto relationship with the Respondent.
The Respondent filed a Response on 10 June 2014.
On 22 June 2015 the parties attended a mediation before Mr Theobald of Counsel. At the mediation, the parties entered into an agreement about obtaining historical valuations of three items of real estate at Property R1 and R2 and Property N, and valuations of:
a)Five items of real estate at Property R1 and R2, Property O and Property N;
b)The stock and plant and a horse float situated at Property O: and
c)A (vehicle omitted).
On 26 June 2015 the Court made Orders by consent to that effect. The Court also ordered by consent that:
4. The parties to share the cost of the valuations equally set out in order 1, 2 and 3.
5. That the respondent provide to the applicant a list of 3 valuers upon 7 days of today’s date, the applicant to pick one of those valuers within 7 days after that date.
Unfortunately, the parties have not been able to agree on the valuers to carry out the valuations and the process seems to have stalled. The Respondent is particularly anxious to move the process along, as he is ill with cancer and has a limited life expectancy.
Orders Sought
The Respondent filed his Application in a Case on 18 August 2015. In that Application he seeks the following Orders:
1. That filing and service of this Application be abridged.
2. That service of the application and Affidavit be by way of email to the Respondent De Facto wife at her current email address being (omitted)
3. That the Applicant’s Solicitor in this Application in a Case be granted leave to appear by phone.
4. That leave be given to excuse the Applicant, Mr Donnelly, from appearing.
5. That (omitted) of (omitted), be appointed as the Valuer in relation to obtaining the historical valuation of Property L in Order 1 of the Orders dated 26/6/2015.
6. That (omitted) of (omitted) be appointed as the Valuer in relation to Order 2 of the Orders dated 26/6/2015.
7. That (omitted) of (omitted) be appointed the Valuer in order to value the items as per Order 3 of the Orders dated 26/6/2015.
8. That (omitted) be appointed to value the stock as per Order 3 of the Orders dated 26/6/15.
9. That Mr P of (omitted) Valuations be appointed to value the plant and horse float and (vehicle omitted) as per Order 3 of the Orders dated 26/6/15.
10. That within 24 hours of the date of this order the Respondent De-Facto Wife pay into the Trust Account of the solicitor for the Applicant De-Facto Husband – that account being (bank account details not published) – an amount of money equating to a one-half share of the fees for the valuations in Orders 1, 2 and 3 of the Orders dated 26/6/2015 – that sum being $11,250.00.
11. Should the Respondent de-facto wife not pay such sum into the Trust account as per Order 7[1] above then the Applicant De-Facto Husband be at liberty to file without notice an Application for Contempt to be heard on an urgent basis.
12. That the Respondent De-Facto wife’s signature on the Consent Form and instruction to the Valuers listed in Orders 4,5, 6 and 7[2] to obtain valuations be dispensed with.
13. That this order shall be authority for the Valuers identified in orders 4,5,6 and 7[3] to contact the letting agent or Tenant to arrange for an inspection of the properties held in the name of the Respondent Ms Pallister to arrange for inspection of the properties held in the name of the Respondent Ms Pallister, situate at Property R1 and R2, Property O to allow the valuations to be undertaken and that the consent of the Respondent to enter the property which are held in her name or jointly with another be dispensed with.
14. That the Respondent De-Facto Wife pay the costs of and incidental to this application on an indemnity basis.
15. That the matter be listed for a one day trial at Lismore on a date convenient to the court within 8 weeks of the date of these orders.
[1] sic
[2] sic
[3] sic
The Application was returnable on 22 September 2015 at 9:30 am. The Application is supported by an affidavit of the Respondent sworn or affirmed on 12 August 2015.
The Applicant filed a Response to the Application in a Case the afternoon before. In the Response she seeks the following Orders:
1. That the final hearing of this matter be expedited.
2. That the matter be adjourned to 2015 at 10:00 am for final hearing (estimate 3 days).
3. If any real estate assets of the parties or the valuation of the (vehicle omitted) are not agreed within 10 days the respondent Ms Pallister shall within a further 10 days provide the applicant Mr Donnelly with a list of three valuers and the applicant[4] Ms Pallister shall choose one of those valuers within 10 days after that.
[4] sic
4. The parties to share the cost of the valuations equally.
The balance of the orders sought, 5 through to 11 inclusive, relate to trial directions which are not relevant to the issue upon which the Court is required to decide.
The Response is supported by an affidavit of the Applicant sworn 21 September 2015, in which she deposes:
1. I am the Respondent in the Application in a Case filed on 18 August 2015.
2. I ask the Court to dismiss the Application in a Case of the Applicant in these proceedings and to make orders in the following terms:
(Here follows a recitation of Orders 1 to 11 inclusive set out in the Response).[5]
[5] Affidavit of Ms Pallister 21.9.2015 at paragraphs [1] and [2]
Suffice it to say that the affidavit is uninformative and entirely unhelpful.
The Respondent’s Contentions
The substantive Respondent, Mr Donnelly, deposed that on 1 July 2015 he had his solicitors forward two letters to Ms Pallister’s then solicitors, Slater & Gordon Lawyers at (omitted). Copies of those letters are annexed to his affidavit.
In the first of the two letters, Mr Donnelly provided the names of four residential and commercial valuers in the (omitted) and (omitted) area. In the second, he provided the name of (omitted) Brokers, the only broker that he said was able to value the boat.
On 3 July 2015, Mr Donnelly’s solicitors wrote to Slater & Gordon, saying:
We refer to the above matter and have been advised by our client that rather than spend further funds on a valuation of the boat, our client is happy to accept the agreed valuation at mediation.[6]
[6] Affidavit of Mr Donnelly 12.8.2015 Annexure “D3”
No reply was received to any of those letters and on 12 July 2015 Mr Donnelly received a text message from Ms Pallister that said:
Please be advised I am no longer using Slater and Gordon as my lawyer this was as from last Monday 6th July your lawyer will be notified ASAP as to whom I will be using so be aware I haven’t and will not be agreeing to your valuers or paying half the fees.[7]
[7] Ibid Annexure “D4”
Mr Donnelly’s solicitors then wrote to Slater & Gordon on 13 July 2015, after a telephone conversation with a person at that firm. A copy of the letter to Slater & Gordon is annexed to Mr Donnelly’s affidavit. Relevantly, the letter says:
Your office has confirmed that you have issued a Notice of Withdrawal in that regard.
Notwithstanding the above, your client was to advise by 7 July 2015 she accepted in relation to the valuations ordered in the Orders of 26 June 2015.
We provided that list to your firm on 1 July 2015.
It appears that Ms Pallister is now intending to breach the Orders made and we advise that should we not have agreement and a commitment to fulfil the terms of the Orders dated 26 June 2015 by close of business Wednesday 15 July 2015, we will be filing an urgent application to be heard on an ex parte basis in order that your client comply with the Orders.
We will be seeking costs on an indemnity basis in that regard[8].
[8] Affidavit of Mr Donnelly 12.8.2015 Annexure “D5”
On 15 July Ms Pallister forwarded an email to Mr Donnelly’s solicitors, a copy of which is annexed to his affidavit. In that email she said, relevantly:
As you know, Slater & Gordon will be withdrawing from the proceeding.
Within the next few days I will have selected new solicitors to represent me.
…
My new solicitors will advise me urgently in relation to the orders dated 26 June 2015.
Would you be good enough to allow me a reasonable opportunity to obtain that advice and agree in the meantime not to take the step outlined by you in your letter with respect to filing an urgent application on an ex parte basis. Can I suggest a period of two weeks?[9]
[9] Ibid Annexure “D6”
Mr Donnelly deposed that he instructed his solicitors to forward an email to Ms Pallister, a copy of which is annexed to his affidavit. The email said, relevantly:
We advise that should we not have from you by 4.00 pm Monday 20 July 2015 your unconditional consent to adhere to the orders and your nomination of valuers we will without further notice to you file the application foreshadowed in our correspondence dated 13 July 2015.[10]
[10] Bid Annexure “D8”
Mr Donnelly deposed that Ms Pallister replied by email on the afternoon of 20 July 2015, a copy of which is annexed to his affidavit. The email said, relevantly:
I am in the process of instructing a solicitor. They should be in a position to discuss the case, having briefly read the documents tomorrow. After this has occurred they will be in a position to deal with the valuation issues. I do not wish to proceed without representation which is reasonable in the circumstances.
I have not taken an undue length of time to seek alternate counsel and am not intentionally delaying the matter. Given these matters the Court is unlikely to consider any order for costs if your client instructs you to put on a further unnecessary application. If such an application is filed I will discuss with my solicitors the appropriateness of seeking my costs
As stated once I have confirmed the instructions of my solicitors they will be in tough further. I anticipate that will be this week.[11]
[11] Affidavit of Mr Donnelly 12.8.2015 Annexure “D9”
Mr Donnelly deposed:
That time frame has now passed. We have heard nothing from Ms Pallister.[12]
[12] Ibid at paragraph [15]
Consideration
Ms Pallister’s former solicitors, Slater & Gordon, filed a Notice of Withdrawal as Lawyer on 17 July 2015. Ms Pallister’s current solicitors did not file any documents until the afternoon of 21 September 2015. This is an unacceptable delay.
On 26 June 2015 the Court made Orders by consent setting out the way that the parties were to obtain the necessary valuations so that the Application could proceed to a final hearing.
What those Orders required was that Mr Donnelly should provide a list of valuers to Ms Pallister within seven days after the Orders were made. He did so on 1 July, five days later.
What then should have happened was that within a further seven days Ms Pallister should have picked one of those valuers to carry out the valuations. She should have done so by 8 July, seven days after she was provided with the list. She did not do so. She is in breach of the Order.
For some reason, Ms Pallister parted company with her then lawyers, Slater & Gordon, on 6 July, according to her email. The fact that she was without legal representation from that date until, apparently, 21 September, is entirely irrelevant to the question of whether or not she should have complied with the Order of the Court.
What she has done, however, after a lengthy delay, is to instruct her current solicitors to seek directions that are entirely different to the orders to which she consented and which were ordered by the Court.
The proposed Orders in her Response appear to have been drafted without reference to the already existing Orders and the affidavit in support is technically an affidavit but provides no information whatsoever about her reasons for seeking these entirely different Orders. It is, with respect, a worthless document.
Ms Pallister’s proposed Order no. 3 either contains a typographical error or is otherwise entirely nonsensical. It says:
If any real estate assets of the parties or the valuation of the (vehicle omitted) are not agreed within 10 days the respondent Ms Pallister shall within a further 10 days provide the applicant Mr Donnelly with a list of 3 valuers and the applicant Ms Pallister shall choose one of those valuers within 10 days after that.
The fact that this proposed order is repeated verbatim in Ms Pallister’s affidavit does not add to its credibility at all and merely supports the view that the documents were prepared at the last moment and not subject to any check. The proposed order as it stands allows a period of 10 days for the parties to come to an agreement and, if no agreement is reached, Ms Pallister would provide Mr Donnelly with a list of 3 valuers. Ten days later, she would then pick one of those valuers. It is hard to see the point of that proposed order. Surely, if the order were seriously drafted, it would make some provision for Mr Donnelly to pick one of those three valuers within a short period of time, but in the wording of the proposed order Mr Donnelly would not have any say whatsoever.
In any event, there is already an order in force, with which Mr Donnelly has complied. It should be followed.
Conclusions
Ms Pallister appears to have been most dilatory in taking steps to obtain the necessary valuations to enable this matter to be set down for hearing. As the Applicant, she has the carriage of the matter, and it is surprising that she has delayed in such a way in getting the matter ready for hearing. Mr Donnelly has speculated that Ms Pallister’s delay is deliberate in order to gain some advantage from his failing health. The evidence does not allow the Court to make any finding of that nature.
An Order was made by this Court on 26 June 2015 that Mr Donnelly, the Respondent to the property Application, should provide a list of three valuers to the substantive Applicant and then, within a further period of seven days, Ms Pallister should choose one of the three nominated valuers.
The substantive Applicant, Ms Pallister has not complied with an Order of this Court but has instead attempted to bring about some other outcome. She must comply with the Order within seven days.
Her Response will be dismissed.
Costs
The conduct of the matter of the substantive Applicant in relation to the proceedings has been most unsatisfactory. She has failed to comply with a previous Order of the Court. These are matters which the Court would consider under s.117(2A) of the Family Law Act 1975 (Cth). Mr Donnelly has sought an order for costs in his Application in a Case.
The Applicant Ms Pallister will be given twenty-one days to file and serve a written submission as to why she should not pay Mr Donnelly’s costs of this Application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 14 October 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Procedural Fairness
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Remedies
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Appeal
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