Percival & Percival
[2008] FamCAFC 83
•20 June 2008
FAMILY COURT OF AUSTRALIA
| PERCIVAL & PERCIVAL | [2008] FamCAFC 83 |
| FAMILY LAW - APPEAL – COSTS – Where trial Judge reviewed a Registrar’s decision ordering the wife pay the husband’s costs of $96.50 for the husband’s solicitor’s attendance of a subsequently adjourned conciliation conference – Where the wife had not consented to an adjournment of the conference until late in the afternoon before the scheduled date for the conference - Where trial Judge dismissed the review application and ordered that the wife pay the costs of the review hearing of $771.60 – Whether the proceedings were affected by bias or a lack of procedural fairness – Where transcript not provided and claims could not be evaluated – Whether trial Judge erred in failing to deal with wife’s application because it was not supported by an affidavit – Where the trial Judge had carefully considered the evidence and dismissed the wife’s review application for cogent reasons – No appealable error by the trial Judge - Whether trial Judge erred in upholding the Registrar’s original costs order when the wife asserted the husband had time to vacate the conciliation conference – Where the wife’s notification was received after the close of business hours and there was insufficient time from commencement of business the next day to the scheduled 11.00 am conciliation conference to administratively adjourn the conference – Where the wife’s failure to notify the husband’s solicitors of her consent to adjournment in a timely manner caused expenditure and likely to cause unnecessary disruption and inconvenience to the Court and other litigants – No error by trial Judge - Whether the husband’s solicitor improperly acted on the wife’s behalf – Where the husband’s solicitor was fulfilling her role as an officer of the Court in assisting the trial Judge, and was not attempting to improperly represent the wife – No error by trial Judge – Appeal dismissed. FAMILY LAW - COSTS – Where the husband sought indemnity costs – Where circumstances did not warrant indemnity costs – Where the wife was wholly unsuccessful – The wife to pay the husband’s costs on a party and party basis in the fixed sum of $2,530.10. Family Law Act 1975 - s 117(1) State of Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146 | ||
| APPELLANT: | Ms Percival | |
| RESPONDENT: | Mr Percival |
| FILE NUMBER: | MLF | 3297 | of | 2006 |
| APPEAL NUMBER: | SA | 89 | of | 2007 |
| DATE DELIVERED: | 20 June 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Finn, Warnick and Boland JJ |
| HEARING DATE: | 7 May 2008 |
LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 August 2007 |
| LOWER COURT MNC: | [2007] FamCA 1093 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Ms Percival appeared in person with an interpreter |
| SOLICITOR FOR THE RESPONDENT: | Ms Jenkins, Holding Redlich |
Orders
That the wife’s appeal against the orders of the Honourable Justice Guest made 31 August 2007 is dismissed.
That the wife pay the husband’s costs in the sum of $2,531.10 within 28 days of this order.
IT IS NOTED that publication of this judgment under the pseudonym Percival & Percival is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 89 of 2007
File Number: MLF 3297 of 2006
| Ms Percival |
Appellant
And
| Mr Percival |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Percival (“the wife”) by Notice of Appeal filed on 27 September 2007 appeals orders made by Guest J on 31 August 2008. The appeal is resisted by Mr Percival (“the husband”).
The trial Judge made his orders at the conclusion of hearing a review of a decision made by a Registrar who had ordered that the wife pay the husband’s costs in the sum of $96.50. Those costs were incurred by the husband’s solicitor attending a conciliation conference because the wife had not consented to an adjournment of the conference until late in the afternoon before the scheduled date for the conference. The trial Judge dismissed the review application, and ordered that the wife pay the costs of the hearing before him in the sum of $771.60.
At the hearing of the appeal the wife sought to adduce further evidence. The wife, who was self represented before the trial Judge, and before us, sought to rely on her application filed 18 April 2008 to which she annexed a number of emails, and to her affidavit sworn 17 April 2008. No real opposition was raised by the husband’s solicitor to this material and we granted leave to the wife to rely on her application and affidavit. We will discuss the further evidence in the course of these reasons.
It was clear from the wife’s submissions to us that she has a number of issues or complaints about the conduct of the litigation between the parties. Those issues include:
· the wife’s assertion that the parties reached an informal agreement about property settlement, and the husband has not adhered to that agreement;
· that the parties have not attended voluntary mediation outside the Court to endeavour to resolve their dispute;
· that the husband should have been ordered to pay her expenses incurred when the conciliation conference was adjourned because he had failed to provide necessary documents for the conference to proceed;
· the failure of the husband’s solicitors to engage in pre-action procedures precluded an entitlement to fees; and
· that the husband’s lawyer improperly acted on the wife’s behalf.
We understand that the wife is aggrieved and upset because of the matters we have just identified. However, with respect to the wife, they are not matters which are relevant to this appeal. We acknowledge her last identified complaint may appear associated with the appeal, but as we will shortly discuss, the complaint is without merit.
Background
The relevant background appears in the appeal book, as corrected by the Appeal Registrar to conform with orders made at the procedural hearing for the appeal, supplemented by a document entitled “Summary of Events”, provided by the husband’s solicitor, which summary was before the trial Judge.
It appears that property proceedings between the husband and the wife were commenced in the Court, and on 22 January 2007 a Case Assessment Conference was listed before Registrar Marrone. The wife did not attend Court on that day, and the matter was adjourned to a procedural hearing list on 14 February 2007. The husband’s costs were reserved. On Sunday, 21 January 2007 the wife forwarded an email to the husband’s solicitors advising “I am still sick. I can not attend tomorrows [sic] Case Assessment Conference as I have emailed to you on the 18 Jan 2007…”
On 14 February 2007 the parties attended a procedural hearing conducted by Registrar Kaur. The wife was ordered to file material in response to the husband’s application, and to provide financial documents for a conciliation conference which was appointed to occur on 23 April 2007.
On 23 April 2007 the wife did not attend the conciliation conference scheduled that day before Registrar Hunt. The Registrar made an order that the wife pay the husband’s costs fixed in the sum of $192.90.
The wife filed an application to review Registrar Kaur’s decision, which review was heard by Dessau J on 10 May 2007 who dismissed the wife’s application, and ordered she pay the husband’s costs fixed at two hours at scale. Her Honour adjourned the conciliation conference to 7 June 2007.
On 11 May 2007 the husband’s solicitors wrote to the Court advising that:
· the husband was not present in Court when Dessau J fixed the date for the adjourned conciliation conference; and
· the husband would be overseas on 7 June 2007 (the conciliation conference adjourned date).
The solicitors requested that the conciliation conference be adjourned until on or after 19 June 2007. The solicitors provided a copy of their letter to the wife. Also on 11 May 2007 the husband’s solicitors wrote directly to the wife. The solicitors referred to the conciliation conference as follows:
Conciliation Conference date
Our client has advised that he will not be able to attend a Conciliation Conference on 7 June 2007 as he will be overseas returning on 12 June 2007. The Conciliation Conference will therefore need to be changed.
We enclose a letter we have sent to the Family Court asking for the Conciliation Conference date to be moved to a date on or after 19 June 2007. Please sign and date the enclosed letter and fax it to the Family Court confirming your consent to the date being changed.
[original emphasis]
The solicitors also referred to a recommendation made by Dessau J to the wife that she engage a lawyer to assist her in the proceedings, and noted that the wife had indicated she would obtain legal representation.
On 16 May 2007 the wife sent an email to the husband’s solicitors advising that she was going overseas, and would be absent from Australia between 11 June 2007 and 12 July 2007. The husband’s solicitors replied to the wife’s email the same day, and asked for her consent to the adjournment of the conciliation conference. The solicitors advised on receipt of the wife’s consent they would notify the Court and “ask them to set a new date for the Conciliation Conference”.
On 22 May 2007 the solicitors sent a further email to the wife again seeking her consent to adjourning the conciliation conference. The solicitors noted:
…If you do not contact the Court and agree to adjourn the Conference, we will have to attend on 7 June 2007 and ask the Court to allocate a new date on or after 19 July 2007. If we are forced to attend Court on 7 June 2007 we will be asking the Court to make an order that you pay our client’s costs of us attending on the day.
On the evening prior to the scheduled conciliation conference at 5.58 pm, 6.05 pm and 6.17 pm the wife forwarded emails to the husband’s solicitors. In her email forwarded at 6.17 pm the wife said “Please cancel tomorrow [sic] Conciliation Conference because [the husband] in [sic] overseas…”
On 7 June 2007 at 11.00 am the wife and the husband’s solicitor attended at the scheduled conciliation conference before Registrar Marrone. The conciliation conference was adjourned to 30 July 2007 at 2.15 pm, and the wife was ordered to pay the husband’s costs fixed in the sum of $96.50 such payment to be made within sixty days.
On 6 July 2007 the wife filed an application to review Registrar Marrone’s orders of 7 June 2007, and that application came before the trial Judge on 31 August 2007.
On 13 July 2007 the husband’s solicitors wrote to the wife referring to her application to review Registrar’s Marrone’s orders. The solicitors said:
Your Form 2 Application filed 6 July 2007
We refer to the Form 2 Application seeking to review the decision of Registrar Marrone on 7 June 2007. The Application is listed for hearing on 31 August 2007 at 10.00 am.
Your Form 2 Application discloses no reason why the Orders of 7 June 2007 should be reviewed or altered. If you do not withdraw your Form 2 Application by 9 August 2007our client will be forced to file and serve a Form 2A Response seeking Orders that your Application be dismissed and that you pay his legal cost [sic] associated with responding to the Application and appearing on 31 August 2007.
…
Recommendation for legal advice
You have advised on numerous occasions that you have obtained or will obtain legal advice. At Court on 10 May 2007 you advised that you had visited 2 lawyers. At Court on 10 May 2007 Her Honour Justice Dessau recommended that you obtain legal advice. At Court on 7 June 2007 you advised that you have spoken to 3 or 4 lawyers.
We again strongly recommend that you engage a lawyer who specialises in family law matters to advise and represent you. [original emphasis]
The wife’s application for review was listed before the trial Judge on 31 August 2007. She did not appear when the matter was called on, and his Honour commenced to deliver ex tempore reasons. However, some time later (about 10.40 am according to his Honour’s estimate and at about 10.20 am according to the wife’s estimate) she arrived at Court whereupon his Honour proceeded to recommence the hearing.
As we have already noted the wife represented herself at the hearing of the appeal. She was assisted by an interpreter, but for the most part addressed us in English, although we informed the wife that she could speak through the interpreter if she wished to do so.
It will be convenient to refer further to the course of the proceedings before the trial Judge and also to his reasons for the orders which he made as part of our consideration of the wife’s complaints as they emerge from her grounds of appeal or submissions to us.
Grounds of appeal
It appears that the wife did not have the benefit of legal assistance in drawing her grounds of appeal. We now reproduce the grounds of appeal as set out in the wife’s Notice of Appeal:
1.In Paragraph 3, The [sic] Judge erred in the Family Law Act. The Judge dismissed the case because the Form 2 Application was not accompanied by an affidavit. The front page of the Form 2 clearly states you must file an Affidavit with application unless it is an application to review the decision of a Judicial Registrar (see attachment 1, front page of Application in a Case).
2.In Paragraph 4, the Judge advised the husband had file [sic] the Response From2 [sic]. The Judge could not show the signature of the husband. The Judge was rude to the wife and stoped [sic] the wife’s request to see a signature of the husband.
3.In Paragraph 6, the Judge blamed the wife with no apologies. He stated that the wife was 40 minutes late, when it was only 20 minutes.
4.In Paragraph 10 & 11, the Judge missed a lot of points, that the registrars Kaur, Marrone and husband’s lawyer had breached the Act by accusing the wife of hiding the husband’s financial information. The husband’s lawyer has been cheating in the court to get an order on 23 April 2007. On 10 May 2007, the Judge Dessau dismissed the case because the From [sic] 2 Application did not accompany affidavit which was the same reason as Judge Guest.
5.The Judge erred in section 13B of the Family Law Amendment Act 2006.
6.The Judge has been breaching the Equal Opportunity Act. His decision purely relies on the husband’s lawyer [sic] ‘assistance’ as he states on [sic] his decision. The Judge has a bias on the wife.
7.The Judge erred in the Family Law Act; he is frivolous to list the husband’s lawyer’s letters. He is manipulating the facts. He simply used his power to bully the wife to pay all the costs.
8.The Judge refused to take any documents from the wife; he just asked security to assist the wife to leave the courtroom.
9.The judge argued when the wife suggested that the husband’s lawyer should cancel the court hearing on 7 June 2007. The husband’s lawyer had 6 hours for the next day to cancel the court hearing.
10.The Judge and the husband’s lawyer are trying to obtain the husband’s information from the wife, which is contravening with the laws.
11.The Judge only gossiped about the wife, and how the wife apparently “did not respect the court”. The Judge could not see himself abuses the court.
12.The Judge states that the wife is talking nonsense about asking the Judge to refer the case to the State & Federal Government. If the Judge Guest refers our case to the Government, he won’t make the mistakes as he states on [sic] his decision in paragraph 3. [original emphasis]
We note that grounds 3, 6, 7, 8, 9, 11 and 12 appear to assert either bias by the trial Judge, and/or a lack of procedural fairness. We were not able to properly consider these grounds as the wife, despite being ordered to do so by Kay J on 12 December 2007, did not include transcript of the hearing before Guest J in the appeal book.
We also take this opportunity to record that although the wife did not have the benefit of an interpreter before Guest J she did not seek to pursue any ground of appeal on that basis before us.
We propose to deal with the wife’s grounds of appeal as argued orally before us. We will first examine her complaint that the trial Judge failed to deal with her application because it was not supported by an affidavit. We will thereafter examine the wife’s complaint that the costs order should not have been upheld in circumstances where she asserted the husband’s lawyers had “6 hours for the next day to cancel the court hearing” on 7 June 2007. Finally, for completeness, we will deal with the wife’s assertion that the husband’s solicitor purported improperly to act on her behalf.
Ground relating to asserted error by trial Judge failing to properly consider wife’s review application because the application was not accompanied by an affidavit
In ground 1 the wife asserted that the trial Judge had in error dismissed her application because she had failed to file an affidavit in support of that application.
In paragraph 3 of his ex tempore reasons the trial Judge recorded:
The Form 2 Application itself is not accompanied by an affidavit. However, be that as it may, with the wife preparing the document in person, she annexed to her Application a two-page document headed “Review of the Registrar’s Decision”. For the purpose of these proceedings I have regard to that document which, frankly, appears to miss the point.
The procedure for filing a review of a decision of a Registrar or Judicial Registrar is set out in the Family Law Rules 2004 (“the rules”). Rule 2.02 deals with the documents to be filed to support various applications which may be made to the Court. Item 7 provides that for an Application in a Case other than an application seeking review of a decision by a Registrar or Judicial Registrar shall be supported by filing of an affidavit. [our emphasis]
Rule 18.08 sets out the procedure to seek review of an order. It provides as follows:
A party may apply for a review of an order mentioned in an item of Table 18.6 by filing an Application in a Case and a copy of the order appealed from in the filing registry within the time mentioned in the item.
Note Chapter 5 sets out the procedure for filing an application in a case. The application for review will be listed for hearing by a Judge within 28 days after the date of filing of the application.
Rule 18.10 deals with the power of the Court on hearing a review application, which hearing is a hearing de novo. Rule 18.10.2 (a) and (b) provide that the Court may receive as evidence any affidavit or exhibit tendered in the first hearing, or any further affidavit of exhibit.
His Honour’s reasons were given orally at the conclusions of the hearing. It is not clear to us whether his Honour was referring in paragraph 3 of his reasons to the fact the wife had not sought to put further affidavit material before the Court, although we accept consistent with the wife’s assertion, it appears his Honour mistakenly thought the rules required an affidavit to be filed in support of the review application.
However, it is clear from reading the trial Judge’s reasons as a whole that he considered the wife’s application for review, and the orders sought therein, and did not dismiss the application on the basis that no affidavit had been filed by the wife. An examination of his Honour’s reasons demonstrates he had careful regard to the chronology of events which had occurred in the litigation up to that time. In particular, his Honour paid careful attention to the correspondence from the husband’s solicitors to the wife dated 11 May 2007 particulars of which we have set out above, and which became exhibits A and B before him (paragraph 13). His Honour also had regard to the wife’s email to the husband’s solicitors of 16 May 2007 noting her impending absence overseas.
His Honour then recorded the relevant part of the husband’s solicitors’ letter seeking the wife’s consent to the adjournment of the conciliation conference (paragraph 14) and then extracted the relevant portion of the husband’s solicitors’ letter of 22 May 2007 (which we also have set out above) in which the solicitors notified the wife in the event they were required to attend Court on 7 June 2006 they would seek an order that she pay the husband’s costs of such attendance.
The trial Judge also carefully considered the emails from the wife to the husband’s solicitors, sent after office hours the evening before the scheduled conciliation conference. His Honour explained:
Some two weeks passed, and on 6 June 2007 at 5.58 pm, at 6.05 pm and further at 6.19 pm the wife emailed Ms Jenkins advising her to cancel the “reconciliation conference because [the husband] cannot attend”. She said that she had faxed a Notice of Appeal which I assume to be from the decision of Dessau J. That email was directed to “Kelly” at 5.58 pm. At 6.05 pm, a further email is addressed then to Ms Jenkins, requesting she cancel the “conciliation conference”. She advised again she had faxed a Notice of Appeal to the court. Finally at 6.18 pm, another email was forwarded from the wife to Ms Jenkins seeking “to cancel” the Conciliation Conference. That, of course, was too late. The court had closed. Some two weeks had passed in the meantime and there was no way that the conference could have been cancelled as requested. (paragraph 16)
His Honour’s conclusions as to why the review application should be dismissed are set out in paragraph 22 of his reasons. His Honour said:
The Form 2 Application in a Case brought by the wife is utterly without merit. She is the mistress of her own misfortune. The order for costs was modest. She failed to heed what I regard as professional courtesy advanced by Ms Jenkins and in so doing is the source of the situation that brought the husband to the court this day in circumstances where, with good commonsense and plain objectivity, the hearing could have been avoided.
The extracts from his Honour’s reasons demonstrate that he dismissed the wife’s review application for cogent reasons, and we discern no appealable error by the trial Judge which arises by reason of his comments in paragraph 3 of his reasons for judgment.
Assertion that the trial Judge was in error in finding that the wife had not provided notice sufficient to enable the conference to be cancelled administratively
Before us the wife maintained that there was sufficient time from her three notifications after 5.00 pm the day before the scheduled conference, to cancel the conference, which she asserted was to take place at 2.15 pm.
Contained in the appeal book, but unnumbered by the wife, is a copy of the bench sheet for the conciliation conference on 7 June 2007. The bench sheet discloses the conference was scheduled for 11.00 am, not 2.15pm as asserted by the wife.
As noted by the trial Judge, the wife was afforded a number of opportunities by the husband’s solicitors to consent to an adjournment of the conference in a timely manner including the provision in their letter of 11 May 2007 of a letter addressed to the Court which only required the wife’s signature and delivery to the Court. The wife was also put on notice in the solicitors’ email of 22 May 2007 that, in the event the solicitors were required to attend Court on 7 June 2007, they would seek costs on behalf of their client.
We are satisfied that it was well open to the trial Judge to find there was insufficient time from the commencement of business on 7 June 2007 (the wife’s notification having only been received after the close of business hours on 6 June 2007) until 11.00 am to seek to adjourn the conference administratively. The wife’s failure to notify the husband’s solicitors of her consent in a timely manner caused not only expenditure on the husband’s behalf, but is likely to have resulted in unnecessary disruption and inconvenience to the Court and other litigants (see State of Queensland v JL Holdings Pty Ltd (1996) 189 CLR 146 per Kirby J at 170-171). We find no merit in this ground.
Assertion that the trial Judge permitted the husband’s solicitor to improperly represent the wife
In his reasons the trial Judge explained that the wife’s submissions were difficult to understand, and that Ms Jenkins (the husband’s solicitor) “helpfully assisted in explaining that which was being advanced by the wife”
(paragraph 7). As we have already noted, the wife failed to provide transcript of the hearing before the trial Judge and consequently did not take us to any material which could support this ground. Notwithstanding that fact, we discern that from his Honour’s reasons that, as before us, Ms Jenkins was endeavouring in her role as an officer of the Court to assist the trial Judge, and was not in any sense seeking improperly to represent the wife.
Conclusions
At the commencement of these reasons we set out what we understood to be the major complaints of the wife, and recorded that those complaints were not, and could not be, proper grounds of appeal in this appeal.
However we are satisfied that such matters which were advanced by the wife and which can be regarded as recognisable or competent grounds of appeal do not demonstrate any appealable error by the trial Judge, and consequently the appeal must be dismissed.
Costs
At the conclusion of the appeal we sought submissions from the parties in respect of the costs of the appeal. In the event that the appeal was dismissed, the husband’s solicitor sought that the wife pay the husband’s costs of and incidental to the appeal on an indemnity basis.
In support of that application she referred to the history of the litigation, and that notice had been given to the wife requesting she withdraw the review as being without merit. She provided us with a schedule of costs incurred and sought costs at the rate of $407.00 per hour ($370.00 per hour plus GST) as being appropriate for an accredited family law specialist. No costs agreement between the husband and his solicitors was provided to us so that we could be satisfied that the rate submitted as reasonable was the rate being charged to the husband (see LGM & CAM [2008] FamCAFC 1 at 95 and r 19.08(3) of the rules.)
We are not satisfied that this is a case of an exceptional nature such that an indemnity costs order should be made.
Neither party sought to provide any information to us as to the parties’ respective financial circumstances, or made any submission that they lacked capacity to meet a costs order. As the wife has been wholly unsuccessful in this appeal we are satisfied that circumstance of itself warrants departure from s 117(1) of the Family Law Act 1975. We further take into account that the husband’s solicitors afforded the wife the opportunity to withdraw the appeal, noting that the grounds were without merit. The schedule provided to us, although not itemised, appears to set out necessary work involved in the appeal. We are satisfied, based on the hours claimed in the schedule, and the amount allowed for a solicitor appearing as counsel at the hearing (r 19.51), calculated in accordance with the Family Law Rules 2004, that the wife should pay the husband’s costs on a party and party basis in the fixed sum of $2,530.10.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: