PALMER and MR NORMAN as Case Guardian for MS STEPHEN-PALMER

[2022] FCWA 113

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

LOCATION: PERTH

CITATION: PALMER and MR NORMAN as Case Guardian for MS STEPHEN-PALMER [2022] FCWA 113

CORAM: O'BRIEN J

HEARD: 26 MAY 2022

DELIVERED : Ex tempore

PUBLISHED : 4 NOVEMBER 2022

FILE NO/S: [Redacted]

BETWEEN: MR PALMER

Applicant

AND

MR NORMAN as Case Guardian for MS STEPHEN-PALMER

Respondent

Catchwords:

PRACTICE AND PROCEDURE - Where the wife applies for leave to proceed undefended, the husband having failed to comply with orders for the filing of a response to her initiating application and supporting documents - Where the delay on the part of the husband is lengthy and not satisfactorily explained - Where the wife concedes that the husband should be given a further short opportunity to comply with the orders but seeks a self-executing order if he does not - Where the solicitors for the parties have engaged in unhelpful and unproductive correspondence rather than talking to each other - Orders made but costs reserved.

Legislation:

Family Law Act 1975 (Cth)
Family Court Rules 2021 (WA)
Legal Profession Conduct Rules 2010 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms A
Respondent	:	Mr B

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm B

Case(s) referred to in decision(s):

A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd (2009) 25 VR 189

Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) & Anor [2007] WASCA 67

Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Palmer and Stephen-Palmer has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The matter for determination is the application in a case filed by the Case Guardian for [Ms Stephen-Palmer] ("the wife") on 22 April 2022, in which he sought leave to proceed with the wife’s amended response filed 11 January 2022 on an undefended basis. By that amended response, the wife had commenced proceedings for alteration of property interests, the long-running and difficult parenting proceedings between the parties having concluded.

2[In] February 2022, at a hearing at which both the wife and the husband [Mr Palmer] ("the husband") were represented, I made orders requiring the husband to file and serve a reply, affidavit and financial statement by the close of registry on 28 March 2022. Both parties were ordered to file and serve an undertaking as to disclosure, annexing the relevant list of documents, by the same date. Those orders were made with the input of both counsel, including as to the appropriate timeframe for compliance.

3On the strength of those orders, and at the request of those representing both parties, a conciliation conference was listed to take place [in June 2022], with additional time allowed for that conference bearing in mind the role of the Case Guardian. Orders were also made for the filing of necessary documents to facilitate the conference.

4The husband has not filed his reply, affidavit or financial statement. Neither party has filed an undertaking as to disclosure. The husband has not filed a response to the application in a case; rather, after the close of registry yesterday a minute of proposed orders was filed on his behalf seeking an extension to the close of registry on 6 June 2022 of the time within which he is to file his reply, affidavit and financial statement, and an extension of the time within which each party is to file documents for the assistance of the registrar conducting the conciliation conference.

5Curiously, no reference was made in that minute to an extension of time for compliance with the existing order for the filing of formal undertakings as to disclosure; rather, it was proposed that by 13 June 2022 "and to the extent not already done so" (sic) the parties "exchange disclosure" in accordance with the Family Court Rules 2021 (WA). By inference, the husband proposed in his minute that the parties be excused from compliance with the order already made. When that matter was raised with counsel for the husband this morning, she confirmed that while that impression may reasonably have been given, that was not the intent.

6It was otherwise proposed that the application in a case be listed for the first available date after 28 August 2022, and that the husband respond to it 14 days prior to that hearing. Quite why such an order was sought was beyond me on reading the minute and was made no clearer at the hearing this morning.

7At the hearing this morning, counsel confirmed that, in response to that minute, the wife rejects the orders proposed and maintains the application to proceed undefended, while acknowledging that it would be appropriate for the husband to be given a further short period in which to comply with the existing orders.

The evidence

8The wife relied on the affidavit of her Case Guardian filed with the application in a case. That affidavit set out an unedifying and unhelpful sequence of correspondence between the solicitors representing the parties.

9The husband’s documents were due to be filed on 28 March 2022. Both parties’ undertakings as to disclosure were due to be filed and served by the same day.

10The wife’s lawyers wrote to the husband’s lawyers on 30 March 2022 noting that the husband’s responding documents had not been received and enquiring as to when they might be expected.

11The husband’s lawyers responded by letter the following day, apologising for the delay, stating that it had "taken longer than anticipated" to obtain the husband’s instructions due to his work and travel commitments, but that the lawyer was "in the process" of preparing the documents which would be forwarded "as soon as possible". The letter advised that the husband’s lawyer was "in the process of collating" the husband’s disclosure documents, which would also be forwarded "shortly" and enquired as to when the wife’s lawyers anticipated being in a position to provide her disclosure.

12The husband still did not file his documents. The wife’s lawyers wrote a further letter on 12 April 2022 (the Tuesday before Easter) advising that if the husband failed to file his documents "by the end of the week" an application to proceed on an undefended basis would be made. The letter also asked that the husband’s lawyers "advise when the writer can confer with a lawyer from your office about this issue over the phone". Quite why that enquiry was made in correspondence rather than by telephone is not explained.

13The husband’s lawyers responded by correspondence the same day, noting their earlier letter, repeating that they were "in the process of preparing" the husband’s documents, reminding the wife’s lawyers that the husband works abroad, and again expressing the hope that the documents would be filed within 14 days.

14The letter went on to express the view that as the conciliation conference was listed for 20 June 2022, there was no prejudice to the wife arising from the delay, and "no merit in unnecessarily wasting the court’s time by making any applications to extend the filing date".

15The husband’s lawyers then suggested that if the wife filed her foreshadowed application she would not "do so with clean hands" having filed earlier documents "one week late" and not having herself complied with the order requiring an undertaking as to disclosure. The reference to "clean hands" in respect of late filing of earlier documents is nonsensical; the reference to the wife’s failure to file her undertaking as to disclosure is simplistic. The parameters for compliance with the duty of disclosure are defined by the matters in issue in the proceedings; in circumstances where the husband had not filed his responding documents, no definition of the issues in the proceedings was possible.

16The wife’s lawyers sent a further email to the husband’s lawyers on 22 April 2022 confirming that they had "contacted [the office of those lawyers that day] as a courtesy to advise" that the present application in a case would be filed. The email confirmed that the administrative assistant spoken to at the office of the husband’s lawyers had advised that the solicitor with the conduct of the matter was not available at the time the call was made.

17The application was filed the same day.

18As required, the application was accompanied by a certificate of conferral signed by the lawyers for the wife. The correspondence just outlined was certified as having been exchanged, and it was also certified that there had been "telephone conferral between the lawyers on 21 April 2022".

19As there was no reference to such telephone conferral in the affidavit filed in support of the application, I queried that with counsel for the wife this morning. Counsel confirmed that in fact telephone conferral took place on that date.

Conclusion and orders

20The failure of the husband to comply with the orders made on 28 February 2022 is self-evidently unacceptable. The wife and those advising her rightly complain about that non-compliance, and about the unhelpful responses received to their enquiries.

21That said, the sequence of events just outlined does no credit to the solicitors representing either party.

22In all litigation, lawyers have a duty to give "sufficient consideration in preparing or presenting their case as to how they might best assist the court in the use of its limited resources",[1] and to do all they reasonably can to ensure that proceedings are conducted in a timely and cost-efficient way.[2] Proper personal conferral between lawyers is a critical feature of the proper conduct of litigation.[3] Correspondence, no matter how voluminous or frequent, is no adequate substitute for parties and their lawyers actually talking to each other. The benefit to the parties of that approach, which frankly only reflects the basics of sound practice by lawyers in any event, is obvious.

[1] A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd (2009) 25 VR 189, [15].

[2] Family Court Rules 2021 (WA) r 5, r 8; Legal Profession Conduct Rules 2010 (WA) r 36(1); Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349, [30].

[3] Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) & Anor [2007] WASCA 67.

23On the material before me, it was not until 21 April 2022, the day before the application in a case was filed, that any attempt at telephone conferral occurred. The chain of correspondence which commenced with a perfectly appropriate polite enquiry on the part of the solicitors for the wife soon descended into a pointless exchange which achieved nothing, and likely incurred expense for both parties. Why on earth neither lawyer considered it appropriate at an early stage to pick up the telephone and speak to their counterpart eludes me.

24All that said, the approach now proposed by the husband in the minute filed late yesterday gives insufficient regard both to his failure to comply with orders to date, and to the existing order requiring formal undertakings as to disclosure prior to the conciliation conference. While the fact that such an order has already been made, and the parties have had ample time to comply with it, is frankly the end of the matter the husband’s proposal also neglects another obvious point. The wife is a person under a disability. The litigation is being conducted on her behalf by a Case Guardian. The Case Guardian has clear duties,[4] including if seeking a consent order (which presumably is the hope of the parties in pressing for an early conciliation conference), filing an affidavit setting out the facts relied upon to satisfy the court that the order proposed is in the wife’s best interests. It cannot reasonably be expected that a Case Guardian would, in the discharge of those duties, readily acquiesce to an informal approach to disclosure.

[4] Family Court Rules 2021 (WA) r 109.

25I propose to briefly extend the time for filing of the husband’s documents. So that there can be no complaint on his part as to the consequences of any further non-compliance, that extension will be to the date proposed by his solicitors in the minute filed on his behalf yesterday.

26The wife sought the costs of her application in the sum of $1,000. Given the matters already referred to in these reasons, I do not propose to order costs at this stage. That said, given that the starting point for the unfortunate sequence of events outlined was the failure of the husband to comply with orders, the wife’s costs will be reserved and the application for them may be revisited if thought appropriate by those advising her.

Orders

27There will be the following orders:

1.The time within which the Applicant, [Mr Palmer], is to file and serve his Form 1B reply, affidavit, Form 13 Financial Statement and undertaking as to disclosure pursuant to the orders of 28 February 2022 be and is hereby extended to no later than the close of Registry on 6 June 2022.

2.In the event that the Applicant files his documents in compliance with the immediately preceding order, the Respondent, [Mr Norman] as Case Guardian for the wife [Ms Stephen‑Palmer], must file and serve her undertaking as to disclosure pursuant to the orders of 28 February 2022 by no later than the close of Registry on 10 June 2022.

3.In the event that the Applicant files his documents in compliance with the order contained in paragraph 1 of these orders, the time for compliance by the parties with the orders contained in paragraphs 6 and 7 of the orders of 28 February 2022 be and is hereby extended to the close of Registry on 15 June 2022.

4.In the event that the Applicant fails to file his documents in compliance with the order contained in paragraph 1, the Respondent have leave to proceed with her amended Form 1A response filed 11 January 2022 on an undefended basis and:

(a)the requirement for a Conciliation Conference pursuant to s 79(9) of the Family Law Act 1975 (Cth) is dispensed with;

(b)the Conciliation Conference listed [in] June 2022 is vacated; and

(c)orders 4 to 7 inclusive of the orders made on 28 February 2022 are discharged.

5.The Form 2 application filed by the Respondent on 22 April 2022 be and is hereby dismissed other than in relation to the question of costs.

6.The Respondent’s costs of the said application be and are hereby reserved.

These reasons are the reasons for decision delivered on

26 May 2022, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

GA

Associate to the Judge

1 JUNE 2022