Police and Tannard

[2009] FamCA 583

FAMILY COURT OF AUSTRALIA

POLICE & TANNARD [2009] FamCA 583

FAMILY LAW – INTERIM – Subpoena – Interlocutory Proceedings – Costs Order

Family Law Act 1975 (Cth)

APPLICANT: MS POLICE

RESPONDENT: MR TANNARD

FILE NUMBER: MLC 3053 of 2008

DATE DELIVERED: 24 JUNE 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 24 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SPICER

SOLICITOR FOR THE APPLICANT: McKEAN & PARK

COUNSEL FOR THE RESPONDENT: MR MAPLESTONE

SOLICITOR FOR THE RESPONDENT: MICHAEL L. MAPLESTONE

Orders

IT IS ORDERED:

1. THAT the wife’s application in a case seeking interim orders filed 7 April 2008 be dismissed.

2. THAT the application for final orders filed 7 April 2008 be adjourned to Registrar Riddiford in his directions hearing list on 24 July 2009 at 11.00 a.m.

3. THAT the documents produced to the court by the National Australia Bank, in folder marked “A2” be delivered to the Subpoenas Clerk, Family Court, Melbourne Registry for safe keeping and be made available for inspection and copying by the solicitors for the husband and wife.

4. THAT the documents produced to the court by Hounslow & Associates, Lawyers of Melbourne, and being the solicitors acting for the wife in her personal injury proceedings be likewise delivered to the Subpoenas Clerk, Family Court, Melbourne Registry and be made available for inspection and copying by the solicitors for the husband and wife.

5. THAT the extempore reasons for judgment in respect of the receipt of and release of the National Australia Bank subpoenas be transcribed, be placed upon the Court file and be made available to the parties, and with the solicitor for the husband to forward a copy thereof to the solicitors for the National Australia Bank as soon as they are received.

6. THAT of and incidental to the application in a case filed by the wife, the wife pay or cause to be paid to the husband costs fixed in the sum of $7,000, such costs to be paid upon the settlement, resolution or determination of the s79 proceedings in this matter.

7. THAT the order for costs previously reserved by Cronin J be discharged.

8. THAT the extempore reasons for judgment on issues of costs be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife and solicitor appearing as counsel for the husband.

IT IS NOTED that publication of this judgment under the pseudonym Police v Tannard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3053 of 2008

MS POLICE

Applicant

And

MR TANNARD

Respondent

REASONS FOR JUDGMENT

1. In the matter of Police & Tannard there is an interlocutory issue before the court.  Mr Spicer of counsel appears for the wife who is in court.  Mr Maplestone, solicitor, appears for the husband who is not in court.

2. An issue has arisen in respect of documents to be produced pursuant to a subpoena issued by the husband's solicitors directed to the National Australia Bank.  Mr Harris, solicitor, from the firm Sparke Helmore appears on behalf of National Australia Bank.

3. It appears that over the recent past the wife has instituted proceedings against National Australia Bank in the Federal Administrative Appeals Tribunal in case number … of 2007.  Those proceedings have concluded and the result was a payment of moneys to the wife.

4. Pursuant to subpoena, the husband's solicitor sought production of the entire NAB file, inclusive of all correspondence, documents, medical reports and financial settlement terms.  Mr Harris attended at court today and brought with him photocopies of all documents within the file.  Those documents were divided by him and in accordance with instructions from his principal on the basis of documents that could properly be shown without objection to the solicitors for the husband and otherwise a bundle of documents pursuant to which objection would be taken on their release, primarily on the basis of alleged legal professional privilege.

5. I facilitated the matter to be discussed between parties and the matter was stood down for that purpose.  As a result there is agreement that certain documents can now be produced to the court and in a bundle marked Exhibit “A2”.  These documents do not fall under any claim for any form of privilege. 

6. The legal practitioners for the husband have accepted this outcome and do not seek release or disclosure of documents within a bundle, Exhibit “A1”, which is to be retained by solicitors on behalf of the National Australia Bank.

7. I have now received an affidavit sworn by Mr Harris identifying the division of documents and on that basis I accept the National Australia Bank and/or related solicitors' documents encompassed within bundle “A2”.

DISCUSSION

1. I have earlier dealt with the issue of the National Australia Bank subpoena and I will shortly pronounce orders as to that matter.  The remaining matter before the court is the various issues contained within the wife's application in the case filed 7 April 2008.  In that document the wife sought orders for the husband to make payments in respect of the Westpac mortgage and other outgoings on her property at W, spousal maintenance in the sum of $500 a week, security costs in the sum of $30,000 in respect of her legal proceedings and otherwise payments in relation to a Westpac mortgage in the sum of $215,000 plus interest as are itemised in that application.

2. By response filed 18 April 2008 the husband sought the dismissal of the many and varied matters sought by the wife.  Each party filed an initial affidavit which I have read in support of that outcome.

3. The position today is that Mr Spicer of counsel appears for the wife, who is in court.  Mr Maplestone, solicitor, appear for the husband, who is not in court.  The application before me is that the wife be permitted to withdraw, or otherwise her application in a case filed 7 April 2008 be dismissed.

4. The reality is that she now does not seek any of those interim orders. What that means is that the application for final orders which was filed on that same day, 7 April 2008, remains before the court and the orders now sought pursuant to section 79 of the Family Law Act are final orders which are not as yet itemised or properly detailed.  That application for final orders will remain alive and is the basis for the ongoing property contest between the parties.

5. I will dismiss the wife's application in the case and the issue arising is a costs application on behalf of the husband.  First I clearly distinguish that Mr Maplestone who appears for the husband indicated that a costs order was appropriate though in the course of argument that position of the husband varied somewhat in that what is now sought is that the costs of the husband of this hearing before me, and of other earlier hearings, be reserved to the trial judge.

6. On behalf of the wife, Mr Spicer's initial position was that costs be reserved at this hearing and other earlier hearings or proceedings to the trial judge.  Thus it would seem in the primary positions adopted by legal practitioners at the conclusion of this interlocutory hearing each of them are simply seeking the reservation of costs of and incidental to the interim application to the trial judge whenever that may be.

7. I give due weight and reflect upon those requests but I do not regard that as appropriate or in the interests of justice or in accord with section 117 of the Family Law Act 1975.  In that regard this is a discretionary matter and I carefully evaluate and reflect upon and exercise my discretion to further examine the matters before me.

8. I am aware from submissions over the course of the period of one hour approximately and from the file that there have been various appearances in this matter.  In particular I am instructed that there was a conciliation conference conducted to endeavour to resolve all financial matters.  I do not have regard to any costs of and associated with that financial conciliation conference in any determination of costs today.  It may have been wholly unsuccessful, it may have been not properly prepared, but that was not an event upon which I would base any costs order.

9. This matter was before me on 28 May 2008.  I made certain orders by consent and significantly I did not reserve the costs of either Mr Ham of counsel for the wife or Ms Colla of counsel for the husband on that day.

10. Thereafter the matter was before the court for a divorce and otherwise for various adjournments and ultimately came before Cronin J on 4 May 2009.  On that occasion Dr Ingleby appeared for the wife and Mr Wood of counsel appeared for the husband.  Significantly orders were made by consent on that day and costs were generally reserved.  I therefore have before me one specific reservation of costs from that contested judicial duty list hearing.

11. The submissions from counsel today and the introduction of the file of the wife's other solicitors, Hounslow and Associates in respect of a personal injury claim, are generally before me, though as yet the court is not aware of and presumably there is a limited knowledge with both solicitors of documents that will be released but have not yet been formally released and which are with the subpoenas clerk.  Otherwise the background to my determination of this costs issue is the release of the National Australia file by orders earlier made and an understanding that the wife has resolved at least almost completely a personal injury claim against the National Australia Bank.

12. Much of the issue of costs has related to submissions about the wife's proper and timely disclosure to court of that action and/or the alleged settlement sum of $167,398 or thereabouts that she is to receive from National Australia Bank.

13. I have carefully read the wife's affidavit of 30 April 2009 and in particular paragraph 17 thereto and its annexures.  It is clear that the wife at that time and prior to the hearing before Cronin J did advise of the compensation claim against National Australia Bank and by the record of the Administrative Appeals Tribunal it is clear that agreement was reached and that outcome was acceptable to the parties and to the tribunal and terms of agreement were lodged with the tribunal.

14. The earlier email from the personal injury solicitor to the wife's matrimonial solicitor is carefully drawn and states that the wife has, "effectively not received any compensation".  Clearly solicitors and/or others are being very careful in disclosure but I do read into that affidavit that there is disclosure of a claim the quantum of which was perhaps inappropriately withheld.

15. I understand that the wife is yet to receive moneys.  Indeed there does seem a curious argument that the release document as between National Australia Bank and the wife is yet to be executed and that payment sum is a gross amount and will be subject to many deductions therefrom.  Again the court has no knowledge of those matters.

16. The settlement of the National Australia Bank claim and/or the receipt of moneys by the wife now or hereafter perhaps explains substantially the reason for the withdrawal of an application in a case relating as it does to spousal maintenance, security for costs, and/or other payments.

17. There is, running astride the National Bank claim of the wife, the larger financial picture in this case.  True it is that I do not fully understand all of the financial assets in this case.  I have looked to the form 13 financial statement.  The wife has a modest Centrelink pension.  The husband has a more substantial gross income of some $2210 a week but that income is negated by his alleged expenses of $3059 per week.

18. Hereafter there must be due and proper examination of all financial aspects of this case, inclusive of income and expenditure.  I do not further investigate those issues today.

19. I also understand that via a corporate structure, B Company Pty Ltd, the husband holds a franchise for two financial organisation.  Those matters have been addressed by counsel before me but I do not know and do not buy into any issue of valuation or the adequacy of valuation of those matters by a single expert witness Mr M.  I leave all those matters to the preparation of the hearing, the final property resolution and/or to the trial judge, whomever that may be.

20. I have had submissions as to the timetable of disclosure between matrimonial solicitors and the withdrawal as intended of this interim application.  I understand there were letters of 9 June and 11 June and then corresponding issues raised by Mr Maplestone on behalf of the husband.

21. Generally as to the costs issue I do not have before me a detailed bill of costs.  Mr Maplestone has advised that his client's costs are in the order of $25,000 on a solicitor client basis.  He has indicated to the court that $15,000 is an appropriate payment of costs.

22. On the interim application I do clearly understand that the husband has and will have to pay his costs, likewise the wife has and will have to pay her costs of and associated with this application now to be discharged by my order.

23. There are other matters that have been put in respect of the wider financial investigation of this matter by both practitioners.  I do understand that I could simply reserve all costs questions and that would enable more research to be taken into the boxes of subpoenaed documents which now sit in my court.

24. It would enable further affidavits to be filed by counsel previously in the case and/or solicitors of and involved in the case.  It would enable the husband and wife to file more affidavits, but all of that is at an ongoing cost. 

25. It would enable a detailed bill of taxation to be prepared and for there to be more particular argument on an item by item basis of all of the costs of and associated with the estimated $25,000 so far expended by the husband.

26. I give due and balanced consideration to all of those matters and in particular to the issue of reservation of costs to another day and to another judge.  Ultimately I do not regard that outcome as just or appropriate.

27. Under section 117 of the Family Law Act and subject to the further subsections thereof each party to proceedings shall bear his or her own costs.  Subsection (2) provides that if the court is of the opinion that there are circumstances that justify it in so doing, the court may make such order as to costs as it considers just. 

28. In considering what orders should be made the court in determining any costs order that is in all of the circumstances just may have regard to the various factors identified in subparagraph (2A) of section 117. Neither party is legally aided. My understanding of the financial circumstances of the parties arise from their recently filed financial statements, both as to the income, assets and liabilities and that does give a foundation for determining a just and equitable costs order, if appropriate.

29. I am aware of the conduct of the interim proceedings.  I am certainly aware of the issues surrounding subpoenas and what parties have looked to obtain by way of financial and other information from the other.

30. I have due regard to the outcome of the proceedings which might be said to wholly unsuccessful as against the wife, given that she has instructed solicitors to withdraw that interim application and thus I reflect and evaluation subparagraph (e) thereof.

31. I have considered other relevant matters as have been outlined by counsel.  In essence the matters of priority for my consideration are those contained within subparagraph (a), (c) and (e) of that particular subsection.

32. I duly reflect upon and exercise my discretion on the basis to which the court has been informed and my endeavouring to do justice to all parties.

33. I have asked Mr Maplestone as to the fees charged earlier by counsel and I understand that Mr Wood's fee was 1800 dollars and Ms Colla's fee was 2200 dollars.  I again particularly observe that I did not reserve costs when the matter was before me on 28 May 2008 and I was then dealing with the interim application.

34. The other aspect of costs is that of solicitors and in case Mr Maplestone had the carriage of the matter for his client and there have been some reasonable costs no doubt incurred by him in acting for his client on the interim application.

35. In summary, I do not regard it as being appropriate or just to simply reserve costs to another day.  That will involve the parties in greater expenditure.  The trial judge may not be in a better position to determine the interim costs than I can this day.

36. I am satisfied that there should be a payment of some costs.  In the circumstances as I have outlined the timetable of the financial settlement with the National Australia Bank, the careful disclosure, or partial disclosure to the court of certain financial matters, the fact that the wife was always aware of her dealings with both solicitors and the progress of each of the actions. 

37. There has been a level of costs expended that may otherwise have been avoided.  I do not know and do not seek to debate the matters that were addressed to Cronin J by experienced counsel.  It may have been the matter was adjourned for a more lengthy investigation and evaluation of financial aspects of the case or otherwise simply on the basis of Mr Wood's request to cross‑examine the wife on the psychological material. 

38. I have considered those matters but ultimately they are not essential to my determination of interim matters.  I intend to make an order for costs and to fix costs that, in the exercise of my discretion, I regard as balanced, reasonable and just.

39. I will stay the order of those costs pending the outcome of the financial and property proceedings before the court.  The alternative was to stay the costs pending receipt by the wife of compensation moneys from National Australia Bank but I declined to make that order.

40. I intend to fix costs in the sum of $7,000. I do so as a general assessment of what is just bearing in mind the level of expenditure that Mr Maplestone has claimed and/or that I regard as appropriate and/or I regard as subject to the various financial factors and considerations within subsection (2A) of section 117.

41. As I said I will stay that cost order of $7000 until the settlement or conclusion of the form 1 property application remaining before the court.  I will have these reasons transcribed, placed upon the court file and made available to all parties who of course will be advised of their rights of appeal.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: