PENCIOUS & PENCIOUS

[2013] FamCA 645

FAMILY COURT OF AUSTRALIA

PENCIOUS & PENCIOUS [2013] FamCA 645

FAMILY LAW – Practice and procedure

Family Law Act 1975 (Cth)

Burrell v The Queen [2008] HCA 34; [2008] 238 CLR 218 per Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ
Noetel v Quealey [2005] FamCA 677; (2005) FLC 93-230

APPLICANT: Mr Pencious

RESPONDENT: Ms Pencious

FILE NUMBER: MLC 11069 of 2008

DATE DELIVERED: 29 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 August 2013

IN CHAMBERS

SOLICITOR FOR THE APPLICANT: Altona Legal

SOLICITOR FOR THE RESPONDENT: Adrian Abrahams Family Lawyers

Orders

1. That Registrar Kaur provide to each of the practitioners in this matter, a copy of the reasons this day for these orders.

2. That each of the husband and wife (if so advised) by 4 pm on 10 September 2013 file with Registrar Kaur a brief submission as to what issue (if any) concerns them as to the approach to be taken by the registrar in assessment of costs arising out of the orders made on 5 April 2012.

3. That Registrar Kaur refer any such submission to Justice Cronin and whether or not any submission is received, the question raised by her on 27 August 2013 under rule 19.33 of the Family Law Rules 2014 be determined in chambers by Justice Cronin.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Pencious has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11069  of 2008

Mr Pencious

Applicant

And

Ms Pencious

Respondent

REASONS FOR JUDGMENT

1. On 5 April 2012, I made an order for costs against the husband. That order provided that failing agreement between the parties, the costs be assessed by the Registrar.

2. By a letter dated 27 August 2013, the Registrar wrote to me saying that a “question” had been raised by the legal practitioner for the husband as to the scope of the order. I have inferred from the letter that the “question” is whether the order relates only to the hearing days (in total six) or includes the various things that go towards proceedings relating to the hearing days.

3. The distinction between the two positions lies in the fact that this was a discrete hearing albeit over six days in the midst of disputed parenting and property proceedings between the husband and the wife. The six days’ hearing concerned whether the wife could continue to engage the legal practitioner she had for the parenting and property matter. The reference to proceedings was to that discrete proceeding involving the legal practitioner and not the parenting and property case.

4. In my reasons for judgment, I said:

   ·I would order that the husband pay the wife’s costs in a sum to be agreed and failing agreement, as assessed;

   ·In this case, the parenting and property substantive disputes remain unresolved but that was not what I was determining.  The hearing before me ranged over eight days.  It involved the husband seeking an order restraining the wife’s lawyer from acting in the substantive proceedings;

   ·Counsel for the husband suggested that the final determination of any costs order should be left until the property proceedings were concluded because at that stage, the parties would know their financial positions.  I do not accept that is appropriate having regard to the amount of money that the wife has expended on what has been significant litigation.  The issue has been determined and subsequent financial proceedings will have little impact because of what I have said above.

5. There was also an application for costs by the Independent Children’s Lawyer and I observed that the costs sought only related to the hearing itself. I said:

   (t)here is not only a justification for an order for costs but I note that the only costs sought relate to counsel’s appearance which are fixed at $10,947.  Having regard to the fact that this is a sum sought for a hearing that went for six days, it could hardly be said to be unreasonable in circumstances where the husband was represented by senior counsel. 

6. Rule 19.33 of the Family Law Rules 2004 is a rule created by the judges of the Court. It empowers the registrar to do a number of things on a costs assessment hearing, one of which is to refer to the court any question arising from the assessment. I am not entirely sure that this referral arises from the assessment hearing itself or indeed, in anticipation of it. To the extent that that matters, I would propose to deal with it anyway under rule 1.09.

7. I was not referred to any correspondence from the legal practitioners so I propose to give the parties, if they are so advised, 10 days from the date of the orders I shall now make to file and serve any written submission on the point.

8. To the extent that the order is silent and requires clarification, it may be that the “slip rule” applies. That provision is available for the correction of accidental errors or omissions but not for substantive matters arising out of the proceedings, particularly one which requires the exercise of an independent discretion (see Burrell v The Queen [2008] HCA 34; [2008] 238 CLR 218 per Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ). Their Honours said:

   [21]The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip  or omission, whether under a specific rule  of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.

9. The High Court went on to discuss procedural fairness but observed that once a court announces its decision, any further hearing was exceptional. Their Honours said that to hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into therule and that step should not be taken.

10. Similar things were said about the slip rule in Noetel v Quealey [2005] FamCA 677; (2005) FLC 93-230, where the Full Court held:

    62.      The slip rule is a well-settled common-law convention which allows for an error arising from an accidental slip or omission or an ambiguity or infelicity of expression not of substantive significance to be corrected at any time by a judge by further order. (my emphasis)

11. The Court should determine whether its order reflects its intention but here I am a little unsure what the husband’s legal practitioner is saying. Is it suggested that for the registrar to assess the costs on the whole of the discrete proceedings is a substantive change to my orders or, is there some doubt as to the meaning of the orders requiring the expression of the intention of the Court in respect of its order?

12. To avoid further controversy, I shall provide an opportunity for both parties to write a brief submission as to what their concern is about. I will then direct the registrar responsible for the costs assessment to complete the task based on an answer that I will give.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 August 2013.

Associate:

Date:  29 August 2013