Purtle and Purtle and Anor (No 2)

[2018] FamCA 895

FAMILY COURT OF AUSTRALIA

PURTLE & PURTLE & ANOR (NO. 2) [2018] FamCA 895

FAMILY LAW – COSTS – Circumstances justifying an order – Where each party seeks costs following an interim application – Whether to make an order for costs.

Family Law Act 1975 (Cth) ss 117, 117(1), 117(2), 117(2A)

APPLICANT: Ms Purtle

1st RESPONDENT: Mr Purtle

2nd RESPONDENT: Mr C Purtle

FILE NUMBER: ADC 4737 of 2016

DATE DELIVERED: 7 November 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 29 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bullock

SOLICITOR FOR THE APPLICANT: Howe Jenkin

COUNSEL FOR THE 1ST RESPONDENT: Mr Norcock

SOLICITOR FOR THE 1ST RESPONDENT: Westley Di Giorgio Norcock

COUNSEL FOR THE 2ND RESPONDENT: Mr Blyth

SOLICITOR FOR THE 2ND RESPONDENT: Townsends Solicitors

Orders

1. That all interim applications for costs be dismissed.

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 Purtle & Purtle and Anor 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).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4737 of 2016

Ms Purtle

Applicant

And

Mr Purtle
First Respondent

And

Mr C Purtle
Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Consequent of orders made on 27 July 2018 that Mr C Purtle (“the second respondent”) do give further and better discovery of documents that have been or are in her possession or control, Ms Purtle (“the wife”) filed an Application on 10 August 2018 seeking an order that the second respondent pay the wife’s costs of and incidental to the Application filed 14 February 2018.

2. The second respondent filed an Application on 16 August 2018 seeking that the wife pay the second respondent’s costs incidental to the Application filed 14 February 2018 and the costs of the second respondent’s Application filed 23 April 2018.

3. I rely upon the history as set out in my Judgment delivered 27 July 2018.

4. Whilst the order did not identify a category of documents other than that they be relevant to an issue in the proceedings, it is not controversial that the wife considered that there were likely to be more documents that provided support for the Application for a Centrelink Pension which is Annexure “HP12” to the Affidavit of the second respondent filed 13 April 2018.

5. The focus on the Centrelink application is considered relevant because of the representations that appear in the document that disavow that either the second respondent or her late husband have money on loan to any other person or organisation.

6. There has been a history of discovery and disclosure of relevant documents save that the Centrelink application was not previously disclosed until it appeared as an annexure to the affidavit.

7. Following the orders being made, correspondence passed between the solicitors for the parties which outlined the wife’s claim for costs arising out of what she considered to be a successful application for discovery. The second respondent opposed the wife’s claim and by letter dated 6 August 2018 reaffirmed the second respondent’s contention that no further documents exist.

8. At this state the wife does not present evidence to suggest otherwise although it may well be an anticipated topic in cross examination.

9. It is argued on behalf of the wife that she has been wholly successful in her application and on that basis it follows that a costs order should be made.

10. Counsel for the second respondent concedes that the application was successful but contends that the orders made by the Court were ultimately unnecessary in circumstances where at all material times the position of the second respondent was that no further documents exist that are relevant to an issue in the proceedings.

11. If it is now accepted in the absence of evidence to the contrary, full and frank disclosure has taken place, then the previous assertion made on behalf of the second respondent should have been accepted irrespective of the wife’s contrary belief.

12. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that subject to sub-s (2), each party shall bear his or her own costs.

13. Section 117(2) of the Act provides the circumstances where the Court may make an order as to costs and in considering what order, if any, should be made, the Court shall have regard to the matters raised in s 117(2A).

14. The wife argues that the financial circumstances of each of the parties to the proceedings is parlous, but her position is further exacerbated by her care of her two children.

15. In addition, the pool of property that may be available for division is limited and the costs of litigation may well render any success a pyrrhic outcome.

16. I do not consider that the wife’s assessment of the financial status and circumstances of the parties to be inaccurate. It is likely that the second respondent may well be struggling with the costs of the litigation.

17. The wife relies upon s 117(2A)(c) and (e) to support her application. She contends that the second respondent should have disclosed the Centrelink application prior to it appearing as an annexure to her affidavit given that it was received by Centrelink on 11 April 2014. The belated disclosure of the document when the relevance of the contents were readily apparent fuelled the wife’s suspicion that there was likely to be more documents in existence.

18. The application was brought and the wife received the order that she sought, thereby supporting her contention that she has been wholly successful.

19. Counsel for the second respondent submits that whilst successful, the application was unnecessary in that no further documents were in existence and therefore discoverable.

CONCLUSION

1. Relevant to application for costs are my remarks in [37] of the Judgment delivered 27 July 2018:-

   If after the second respondent has reflected on whether there are any further documents that are both available and discoverable, there are none, then the matter can be disposed of by her simple confirmation in writing that there is nothing further to discover. Whilst the further step may appear unnecessary in circumstances where the second respondent has asserted that there are no further documents available, there is little prejudice caused to her by her further consideration of the matter, particularly given the contents of the Centrelink application.

2. I am not in a position to find that the manner in which the second respondent disclosed the Centrelink application was in and of itself sufficient to engender the position adopted by the wife namely, that there is likely to be further documents relevant to the issues in the proceedings.

3. The order for discovery had the advantage of requiring the second respondent to focus on the need to provide full and frank disclosure and in the absence of any explanation, any further discovery may well be inadmissible or support a significant costs order.

4. For the present, the second respondent maintains that there are no further discoverable documents.

5. Section 117(2A)(g) enables the Court to consider such other matters as may be relevant.

6. In the absence of the Court finding that the second respondent deliberately did not disclose the Centrelink application thereby lending weight to the wife’s belief that more documents may well be available, the outcome is to support the second respondent’s earlier position that no further documents exist.

7. The order made may be seen as an attempt by the Court to assist the parties in highlighting a need for litigants to be vigilant as to the obligation to make full and frank disclosure and to crystalize the evidentiary parameters of the second respondent’s case.

8. I do not consider that circumstances justify the making of a costs order and as such I consider that each party should bear their own separate costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 7 November 2018

Associate: 

Date:  7 November 2018