Pencious & Searle (No. 2)
[2016] FamCAFC 151
•4 August 2016
FAMILY COURT OF AUSTRALIA
| PENCIOUS & SEARLE (NO. 2) | [2016] FamCAFC 151 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – where the husband appeals orders striking out a subpoena and notice to produce – where the husband appeals the dismissal of his oral application for an injunction restraining the wife’s counsel from further appearing for her in the proceedings – appeal dismissed – order for costs. |
| Family Law Act 1975 (Cth) ss 94AA, 102QB(2)(b), 117 Family Law Rules 2004 (Cth) |
| Hatton v Attorney-General of the Commonwealth of Australia and Ors (2000) FLC 93-038 Jess and Ors & Jess and Ors (2014) FLC 93-620 Kallinicos and Anor v Hunt and Ors (2005) 64 NSWLR 561 McMillan & McMillan (2000) FLC 93-048 Medlow & Medlow (2016) FLC 93-692 National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 Osferatu & Osferatu (2015) FLC 93-666 Pencious & Searle [2015] FamCA 504 Pencious & Searle (No. 2) [2015] FamCA 608 Searle & Pencious [2016] FamCA 135 |
| APPELLANT: | Mr Pencious |
| RESPONDENT: | Ms Searle |
| FILE NUMBER: | MLC | 11069 | of | 2008 |
| FIRST APPEAL NUMBER: | SOA | 40 | of | 2015 |
| SECOND APPEAL NUMBER: | SOA | 45 | of | 2015 |
| DATE DELIVERED: | 4 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Aldridge and Kent JJ |
| HEARING DATE: HEARING DATE: APPLICATION THAT BRYANT CJ BE DISQUALIFIED – LAST WRITTEN SUBMISSIONS: | 29 February 2016 29 April 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENTS DATE: | 22 May 2015 |
| LOWER COURT MNC: | [2015] FamCA 504 [2015] FamCA 608 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person by telephone |
| COUNSEL FOR THE RESPONDENT: | Mr Smith |
| SOLICITOR FOR THE RESPONDENT: | Tasiopoulos Lambros & Co |
Orders
In Appeal SOA 40 of 2015, the husband’s application for leave to appeal is dismissed.
In Appeal SOA 45 of 2015, the appeal is dismissed.
The husband pay the wife’s costs of and incidental to the appeals to be assessed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious &Searle (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 40 of 2015; SOA 45 of 2015
File Number: MLC 11069 of 2008
| Mr Pencious |
Appellant
And
| Ms Searle |
Respondent
REASONS FOR JUDGMENT
Before the Court are two appeals, SOA 40 of 2015 and SOA 45 of 2015, brought by Mr Pencious (“the husband”) against orders made by Macmillan J on 22 May 2015. Her Honour delivered two judgments on that date: Pencious & Searle [2015] FamCA 504 (“the first judgment”); Pencious & Searle (No. 2) [2015] FamCA 608 (“the second judgment”). By SOA 40 of 2015, the husband appeals against two orders striking out a subpoena and a notice to produce issued by the husband. By SOA 45 of 2015 the husband appeals against an order dismissing his oral application for an injunction restraining the wife’s counsel, Mr Wood, from acting in the proceedings. Both appeals are opposed by Ms Searle (“the wife”).
Overview of the history of the proceedings
There is a long history to this matter, with a number of proceedings having been filed. Before we turn to consider the appeals before us, it is important to provide some background to give context to the task before us. At the heart of the matter lies the concluded substantive proceedings for property settlement which were heard before Benjamin J in 2013 and resulted in final orders being made on 28 May 2013.
The parenting proceedings concluded when orders by consent were made on 22 May 2011. The property proceedings were heard over nine days. On 14 August 2013 Benjamin J ordered that the husband pay the costs of third parties in relation to the proceedings and made other orders relating to security for costs. The husband appealed both the substantive property orders and the orders for costs. On 10 September 2014 the Full Court dismissed both appeals and the husband filed an application for special leave to appeal to the High Court. The High Court dismissed that application on 5 March 2015.
Prior to the final hearing before Benjamin J in 2013, a number of interlocutory applications were brought by the husband and have given rise to subsequent proceedings, including the current ones.
By order of 20 July 2010, Cronin J dismissed the husband’s application to join the wife’s parents to the property settlement proceedings between the parties and seeking an injunction against the wife’s parents requiring them to pay money into trust which the husband could then access to meet his legal costs. Cronin J also dismissed the responses filed by the wife and her parents, save as to costs. On 9 September 2010 Cronin J ordered by consent that the husband was to pay the wife’s costs fixed in the sum of $9,000. The husband did not file a notice of appeal against those orders within the time allowed in the Family Law Rules 2004 (Cth) (“the Rules”).
On 28 February 2012 Cronin J dismissed an application by the husband to restrain the wife’s solicitor and his legal firm from further acting for the wife. On 5 April 2012 Cronin J made an order that the husband pay the wife’s costs of the application dismissed on 28 February 2012. The husband filed a notice of appeal against the dismissal of his application, but as a result of failing to file appeal books the appeal was deemed abandoned. The husband subsequently sought reinstatement of that notice of appeal but Strickland J dismissed that application on 13 January 2015. The husband sought special leave to appeal that decision in the High Court but special leave was refused on 13 May 2015.
It would be reasonable to think, given the final hearing took place before Benjamin J in 2013 and that the two interlocutory decisions by Cronin J in 2012 had been the subject of unsuccessful attempts to appeal, including an application for special leave to the High Court, that the matter would be at an end. Regrettably, that was far from the case.
In 2015 the husband commenced a number of proceedings relating to various interlocutory orders, all of which had been subsumed by the substantive proceedings determined by Benjamin J in 2013.
On 8 January 2015 the husband filed an application in an appeal seeking an extension of time to file a notice of appeal against the orders made by Cronin J on 20 July 2010 and 9 September 2010 (SOA 3 of 2015). As set out above those orders dismissed the husband’s application to join the wife’s parents to the property proceedings and required the husband to pay the wife’s costs fixed at $9,000, an order made by consent. Together with a number of other procedural applications, that matter came before Strickland J on 6 May 2015. Strickland J dismissed the husband’s application in an appeal seeking an extension of time to file a notice of appeal and reasons for that decision were handed down on 26 February 2016. At [19] of his reasons for judgment his Honour said:
19.As to the merits of the proposed appeal, and bearing in mind that leave to appeal was required against the orders of 20 July 2010, it is plain that an appeal would be futile. The proceedings in which those orders were made were concluded by the final orders of Benjamin J on 28 May 2013, and the issue the subject of the orders made by his Honour, namely as to the joinder of the parents, became irrelevant as a result of those final orders.
The second matter dealt with by Strickland J (SOA 5 of 2015) was also an application to extend time to file a notice of appeal, this time against the orders made by Cronin J on 5 April 2012 requiring the husband to pay the wife’s costs on an indemnity basis arising from the dismissal on 28 February 2012 of his application seeking to restrain the wife’s solicitors from acting for her. In fact the husband had filed a notice of appeal against the orders of 28 February 2012 but, as a result of failing to file the appeal books, the appeal was deemed abandoned. He subsequently sought reinstatement of that notice of appeal but it was dismissed on 13 January 2015 and special leave to appeal to the High Court was refused.
Strickland J dismissed the SOA 5 of 2015 application on what would appear to be entirely orthodox grounds. It might be useful, however, to explain, as his Honour did, the gravamen of the husband’s complaints because they highlight, as will become apparent in this appeal, their lack of relevance to any application before the Court. Clearly, the husband does not comprehend that point as Strickland J explains:
32.… the complaint he makes is not directed per se to the costs orders, and the reasons for judgment relating to those orders, but to the dismissal of his application to restrain the wife’s solicitor from acting for her. He claims that information came to light subsequently that he says “raise[d] serious issues in relation to the conduct of the trial, the evidence given by the Wife’s legal representatives during the course of the trial and the Court’s process to ensure that justice was afforded to [him]”. Specifically the husband in his draft Notice of Appeal says that “[t]he Legal Practitioners for the wife gave misleading evidence at trial … resulting in his Honour exercising his discretion wrongfully on the facts and the evidence and which resulted in Judgement [sic] which has caused a miscarriage of Justice to the Husband”.
33.The husband’s argument is that if that is the case, then his application should not have been dismissed, and there would not have been any costs orders made against him.
In dealing with this argument, Strickland J said:
34.However, the insurmountable difficulty for the husband in pursuing the application before the court now, is that his attempts to raise these issues previously have been unsuccessful, and the substantive proceedings have concluded. For example, the claims of the husband were very much the subject of his application to reinstate his Notice of Appeal against the dismissal of his application to restrain the wife’s solicitor from acting further, and they were found wanting. In those circumstances it is not open to the husband to pursue those claims via a challenge to the costs orders, even if he was able to persuade the court to grant an extension of time. …
His Honour accordingly dismissed the husband’s application for an extension of time to file a notice of appeal in SOA 5 of 2015. Some of the husband’s grounds and submissions relating to the orders currently under appeal cover the same ground and accordingly attract the same difficulty for him.
The third application before Strickland J was SOA 24 of 2012 and was an application in an appeal seeking to review the decision of the appeal registrar to refuse to accept an application filed by the husband insofar as it sought an extension of time to appeal against the orders made by Cronin J on 28 February 2012. Strickland J reviewed that matter by way of a hearing de novo. As stated above, the husband had previously filed an appeal against those orders which was deemed abandoned because he failed to file appeal books and a previous application to reinstate the appeal was dismissed by Strickland J in January 2015.
Strickland J dismissed the application and in doing so his Honour cited from his reasons for judgment of 13 January 2015 which, again in the context of our consideration of the appeals presently before us, are worth repeating:
28.Before leaving the merits of the appeal it is necessary for me to say something about the futility of the appeal. The interlocutory order the subject of the appeal was made in the context of parenting proceedings which were completed by consent orders made on 22 May 2011, noting as well that at the time of the hearing of this application the children of the marriage were respectively aged 20 years and 17 years.
29.There had been property settlement proceedings, but they were concluded by orders made on 23 [sic] May 2013. There was an appeal by the husband against those orders, but that appeal has been dismissed. Accordingly, as I understand it, the only issue still to be determined finally is that of costs. Thus, it is readily apparent that this appeal is futile, and that is regardless of any merit in the appeal; it can go nowhere as presently constituted.
At this point, that application has been disposed of. Hence to summarise:
·The appeal against Cronin J’s order of 20 July 2010 dismissing the application to join the wife’s parents was the subject of an application to extend the time to appeal. That application was dismissed by Strickland J on 26 February 2016.
·Cronin J’s order for payment by the husband of costs of $9,000 made on 9 September 2010 was the subject of an application for extension of time to appeal. That application to extend time was dismissed by Strickland J on 26 February 2016.
·The husband’s application for reinstatement of his notice of appeal against Cronin J’s order of 28 February 2012 dismissing the husband’s application to restrain the wife’s legal practitioner from further acting was dismissed by Strickland J on 13 January 2015 and the High Court refused special leave to appeal on 13 May 2015.
The final matter dealt with by Strickland J was an application by the wife in appeal SOA 24 of 2012 for costs on an indemnity basis in relation to an application by the husband to reinstate the notice of appeal filed against the orders of 28 February 2012. Before Strickland J, the wife’s counsel indicated that indemnity costs were no longer sought and instead sought fixed costs in the sum of $20,000 on a party/party basis. Strickland J ordered that the husband pay the wife’s costs but provided for the wife’s costs to be assessed in default of agreement.
It is thus the case that the substantive proceedings for parenting and property orders were concluded in 2011 and 2013 respectively, the parenting orders by consent and the property orders by determination by Benjamin J. The subsequent attempts by the husband to appeal interlocutory orders made prior to 2013 have been unsuccessful.
Appeals under consideration (SOA 40 of 2015 and SOA 45 of 2015)
The foregoing gives some context to the appeals that are now before us. For a more detailed description of each of the applications and appeals, see the reasons for judgment of Macmillan J in Searle & Pencious [2016] FamCA 135.
Undaunted by the matters that we have set out in [18], the husband filed an application on 24 March 2015 in which he sought a stay of the orders of Cronin J made 5 April 2012 (indemnity costs order) and orders with respect to the assessment of costs pursuant to those orders. The assessment of costs is currently ongoing before a Registrar of the Family Court.
No doubt in response to this further application, the wife brought an application in a case filed 24 April 2015 seeking a vexatious proceedings order restraining the husband from filing any application or document in either the Family Court or the Federal Circuit Court without having first obtained an order permitting him to do so.
The hearing of the matter before Macmillan J commenced on 5 May 2015. It was adjourned part-heard for further hearing on 22 May 2015 and was thereafter adjourned part-heard for hearing on 20 August 2015.
That was the only substantive proceeding before the Court at that time (apart from the ongoing assessment of costs).
On 17 March 2015, prior to the commencement of the hearing, the husband issued a subpoena to the wife for her to produce a letter dated 15 October 2010 sent by her then solicitors, Adrian Abrahams Family Lawyers, to the wife’s counsel, Mr Wood. On 17 April 2015 the husband filed a notice to produce seeking the production of the same letter. At the hearing on 5 May 2015 the wife applied to have both the subpoena and the notice to produce struck out. At the same time the husband made an oral application seeking an injunction to restrain Mr Wood from appearing on behalf of the wife. The two matters are fundamentally interconnected.
On 22 May 2015 Macmillan J made orders striking out the husband’s subpoena and his notice to produce (the first judgment). Her Honour also dismissed the husband’s oral application for an injunction (the second judgment) and proceeded to commence the hearing of the wife’s application for a vexatious proceedings order. Judgment in relation to that application was handed down on 7 March 2016 and an order was made pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) prohibiting the husband from instituting proceedings under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding.
Prior to the further hearing of the matter on 20 August 2015, the husband filed notices of appeal in relation to the orders striking out his subpoena and notice to produce, as well as the dismissal of his oral application for an injunction. Those appeals (SOA 40 of 2015 and SOA 45 of 2015) are before us for consideration. Notwithstanding the filing of the appeals, Macmillan J continued with the part-heard matter and dismissed an application by the husband to have the matter adjourned pending the outcome of the appeals to this Court and his application for special leave to appeal to the High Court against orders made by Strickland J, the subject of his Honour’s reasons for judgment published on 26 February 2016.
Upon the recommencement of the part-heard hearing on 20 August 2015 the husband made an oral application for Macmillan J to disqualify herself from hearing the matter. Her Honour dismissed that application on 8 October 2015. The husband has also filed an appeal against that order (SOA 70 of 2015) but that appeal is yet to be the subject of procedural orders and has not yet been listed.
The connectedness for the husband of the application to have Mr Wood restrained from appearing on behalf of the wife and the subpoena and notice to produce can be gleaned from Macmillan J’s reasons for judgment of 22 May 2015 in relation to the application to restrain him from appearing for the wife (the second judgment). Her Honour there said:
3.At the commencement of the proceedings before me on 5 May 2015 the husband made an oral application to have Mr Woods [sic][1] of Counsel, who appeared on behalf of the wife that day, restrained from appearing on behalf of the wife. In support of that application he sought the release of a letter produced pursuant to the subpoena to the wife which he said was relevant to his application to restrain Mr Woods from appearing on the wife’s behalf. The letter in question was a letter from the wife’s then solicitors Adrian Abrahams Family Lawyers to Mr Woods. As I said in my reasons delivered this day, I found it difficult to glean the basis of the husband’s case with respect to the apparent relevance of the letter to his application that Mr Woods be restrained from appearing on behalf of the wife. What the husband appeared to be saying at the hearing on 5 May 2015 was that Mr Woods might be a witness in future proceedings and therefore should be restrained from acting. I ultimately found that as there were no proceedings before the Court in relation to which Mr Woods might be required to give evidence, the letter could, on that basis, have no apparent relevance to an issue in dispute and I struck out the subpoena for the production of that letter.
4.I similarly have some difficulty gleaning the basis upon which the husband now submits that Mr Woods should be restrained from acting. He seems to have changed the focus of his case from the possibility of Mr Woods being a witness to the fact that there has been a breach of his confidentiality and that on that basis Mr Woods is privy to information he should not have and should not be acting. The husband has reiterated his case that the letter in question should be part of the evidence not just with respect to his application to restrain Mr Woods from acting but with respect to his Application in a Case filed 24 March 2014 and his Applications in an Appeal and what he suggests might be criminal proceedings related to the information contained in that letter.
5.What the husband did not articulate was that even if there had been a breach of his confidentiality, how that might be relevant for the purposes of these proceedings and Mr Woods appearing on behalf of the wife in these proceedings. The husband did not direct me to any evidence that would suggest that the wife has at any time relied upon the information contained in the letter in question.
6.It is hard to see how in circumstances where the husband, not Mr Woods, whose client opposed the release of the letter in question for inspection let alone it being part of the evidence in the case, seeks to adduce that evidence also complains, somewhat disingenuously in those circumstances, about the breach of his confidentiality and Mr Woods being privy to the information contained in the letter.
7.It is also the case that whilst the husband may have a legitimate complaint against his solicitors, if they had in fact disclosed confidential information pertaining to the husband to the wife’s solicitors, the husband relies upon the affidavit of [Mr DS] in which he denies that he said what the husband alleges he may have said in that letter. The husband on the one hand relies upon evidence denying the validity of what has been said and on the other seeks to rely upon the fact that somehow Mr Woods is tainted by that information because it was confidential information. Arguably if [Mr DS’] evidence is accepted, there has been no breach of the husband’s confidentiality because the information contained in the letter is not true.
8.Notwithstanding that I had struck out the subpoena, and therefore the letter is not part of the evidence before me, on the husband’s case the letter should be in evidence and it would be a miscarriage of justice for it not to be in evidence, not just with respect to this particular aspect of the cases but generally, including with respect to what he says may be a criminal offence, and it follows that any counsel appearing in this matter would be privy to the information contained in the letter. It is difficult to see what complaint the husband could have against Mr Woods or how any injustice could be done to the husband in those circumstances if Mr Woods does appear on behalf of the wife. If his complaint is that Mr Woods is privy to that confidential information, on that basis any counsel appearing on behalf of the wife who reads the contents of that letter upon which the husband seeks to rely will be similarly tainted.
9.Even if the letter in question were part of the evidence, and the information contained in the letter were true, the husband has not demonstrated how he would suffer an injustice if Mr Woods were to act on the wife’s behalf because he may have read the letter in question. Counsel for the wife submitted that the way in which the husband now purports to put his case demonstrates his lack of bona fides. I tend to agree. In my view the husband has not demonstrated any reason why the Court should restrain Mr Woods from appearing on behalf of the wife and I propose to dismiss the husband’s oral application.
[1] Her Honour mistakenly refers to Mr Wood as Mr Woods in the second judgment of 22 May 2015.
Appeal SOA 40 of 2015
This appeal is against Orders 1 and 2 of the orders made on 22 May 2015 in the first judgment. Order 1 struck out the husband’s subpoena to produce the letter from the wife’s solicitors to Mr Wood of counsel dated 15 October 2010. Order 2 struck out the husband’s notice to produce the same letter.
As the orders are interlocutory in nature leave to appeal has been sought. In Medlow & Medlow (2016) FLC 93-692 at 81,086 (“Medlow”) the Full Court held that the test to be applied in applications for leave to appeal pursuant to
s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (see also Jess and Ors & Jess and Ors (2014) FLC 93-620).
Discussion
In order to determine the relevance of the letter to the husband’s application to disqualify the wife’s counsel from acting, Macmillan J read the letter in question, by agreement. It was also agreed by the husband and the wife’s counsel on appeal that this Full Court bench should also read the letter.
In his amended notice of appeal filed 26 June 2015, in addition to setting out 19 paragraphs of his application for leave to appeal, the husband relies upon 17 grounds of appeal. We do not intend to set them out as they appear in the notice of appeal. They are generally discursive in nature and do not assert any cogent ground to establish error on the part of the primary judge.
In his oral submissions, the husband spent some time in seeking to explain the injustice he perceived had occurred in all of the concluded proceedings arising from the wife’s solicitors and counsel being aware of the allegations contained in the letter. Relevantly, the husband conceded that the letter had not been part of the evidence upon which any previous decision had been made. However, as would be clear, the husband’s focus upon how the letter might have changed the course of the previous proceedings, or part of them, is entirely misconceived. The only extant proceeding to which the introduction of the letter could be relevant is his oral application to the primary judge to have the wife’s counsel disqualified from taking further part in the proceedings. This issue is raised by the second appeal under consideration and will be discussed further below (SOA 45 of 2015).
In the first judgment, in relation to the primary judge’s decision to strike out the husband’s subpoena, her Honour said:
12.That there may be proceedings in the future in relation to which
Mr Wood of counsel might be required to give evidence is speculative to say the least. There are presently no proceedings before the Court in relation to which Mr Wood of counsel might be required to give evidence and on that basis it cannot be said that the letter has apparent relevance to any issue in dispute. On that basis the subpoena is an abuse of process and I propose to strike it out. Although the wife also objected to the subpoena on the grounds of privilege as I have found that the subpoena has not [sic] apparent relevance I do not need to decide that point.
The Family Court has the power to set aside a subpoena (Hatton v Attorney-General of the Commonwealth of Australia and Ors (2000) FLC 93-038) (“Hatton”).
The party issuing the subpoena must be able to demonstrate the documents have apparent relevance to the issues before the court (see National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372).
The Full Court in Hatton said:
59.Further, given that there are at the present time no pleadings in this Court, the only way in which apparent relevance of the subpoenaed material to the … proceedings could be established was by reference to the affidavit material filed in those proceedings. …
The husband has not advanced any argument before us as to why her Honour’s decision and order to strike out the subpoena is in error. Indeed, we agree with her Honour that there is simply no present proceeding which could give the letter any relevance.
Accordingly, her Honour’s decision is not attended by sufficient doubt to warrant it being reconsidered by the Full Court and no substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow) and we would refuse leave to appeal.
The husband also sought leave to appeal an order striking out his notice to produce. As outlined above that notice also sought production of the letter. The primary judge was “satisfied that the notice to produce is similarly an abuse of process and should be struck out” (at [13] of the first judgment). For the same reasons as we have given in relation to the subpoena, we would not grant leave to appeal in relation to her Honour’s striking out of the notice to produce.
Appeal SOA 45 of 2015
By this appeal, the husband asserts error in Macmillan J’s dismissal of his oral application to restrain Mr Wood of counsel appearing on behalf of the wife.
The order made by her Honour refusing to restrain the wife’s counsel from further acting is a final order and does not require leave to appeal (Osferatu & Osferatu (2015) FLC 93-666 at [58] to [64] (“Osferatu”); McMillan & McMillan (2000) FLC 93-048).
The basis for the application apparently arises from Mr Wood having seen the letter in question. Before Macmillan J on 5 May 2015 the husband asserted Mr Wood ought to be restrained from appearing on the basis that he was likely to be called as a witness in future proceedings.
As Brereton J held in Kallinicos and Anor v Hunt and Ors (2005) 64 NSWLR 561:
87.It is generally undesirable for a practitioner who is aware that he is likely to be called as witness, other than in relation to formal or non-contentious issues, to continue to act.
However, as Macmillan J correctly held in the second judgment at [3], there was no application before the Court to which Mr Wood could be a witness. He could not provide any relevant evidence as to the current applications before the Court, nor has he demonstrated to us that any evidence in relation to the letter (to the extent that it could be found to be admissible) could be relevant to the extant applications before the Family Court or the Full Court. Furthermore, we agree with the trial judge [transcript 5.5.15, p 35 lines 35–6] that even if
Mr Wood were to be called as a witness, such evidence would be formal and non-contentious and it would appear his only role in the potential proceedings would be to confirm the receipt of the letter or otherwise.
On 22 May 2015 the husband then submitted Mr Wood might be prevented from appearing on the basis that he received confidential information through the letter. No evidence of any kind has been brought to suggest that there was any confidential information of any kind in the letter. Indeed, the husband deposes in his affidavit filed 1 April 2015 at [17] that: “[t]he written statements made by the Wife’s former legal representative are malicious and blatantly untrue.” The husband’s former solicitor also filed an affidavit on 1 April 2015 in which he denied telephoning the wife’s solicitor or making the allegations attributed to him. Thus, there is no description of any confidential information which might prejudice the husband.
It is also important to bear in mind that the only proceedings before the Court were the ongoing assessment of costs and the proceedings before the primary judge under the vexatious proceedings provisions. As her Honour rightly indicated, the onus was on the husband to establish that the wife’s counsel was in possession of confidential information and that there was a risk that the relevant confidential information would be disclosed (Osferatu). It was not apparent to her Honour, as it was similarly not to us, how the material could be said to be relevant to any current proceedings or to whom it might be disclosed disadvantageously to the husband. Accordingly, we can find no error in her Honour’s decision to dismiss the husband’s application for an injunction preventing Mr Wood from acting for the wife, and the appeal should therefore be dismissed.
Costs
Counsel for the wife submitted that the husband should pay the wife’s costs in the event that these appeals were unsuccessful and informed us that the wife was not in receipt of legal aid and was funding the proceedings herself.
The husband submitted that, if unsuccessful, he should not have to pay the wife’s costs.
The law in relation to costs is governed by s 117 of the Act. The starting position is that in proceedings under the Act, parties ordinarily bear their own costs (s 117(1)) and unlike other jurisdictions, costs do not automatically follow the event. However, the Court may depart from the usual rule if it is satisfied there are circumstances which justify an order for costs. Section 117(2A) sets out a list of criteria which the Court may consider in determining whether there are circumstances justifying an order for costs. One of those factors is that one party was wholly unsuccessful (s 117(2A)(e)). In our view, the husband has been wholly unsuccessful and it is appropriate to make an order for costs in favour of the wife.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Aldridge & Kent JJ) delivered on 4 August 2016.
Associate:
Date: 4 August 2016
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