R Pty Ltd Atf the Fletcher Trust and Jones & Anor (No 2)

[2016] FamCA 1058

FAMILY COURT OF AUSTRALIA

R PTY LTD ATF THE FLETCHER TRUST & JONES AND ANOR (NO 2) [2016] FamCA 1058

FAMILY LAW – COSTS - Between parties – Where the application to disclose documents filed in Family Court proceedings in another court was granted –Where the conduct of the respondents in pressing for particularisation of documents to be disclosed does not warrant an award of costs against them – Application dismissed

Family Law Act 1975 (Cth) s 117(2)
Family Law Rules 2004 (Cth) r 37A(b)

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another(2005) 33 Fam LR 123

APPLICANT: R Pty Ltd atf the Fletcher Trust

FIRST RESPONDENT: Mr Jones

SECOND RESPONDENT: P Pty Ltd CAN … as trustee for Jones Trust

FILE NUMBER: BRC 3721 of 2011

DATE DELIVERED: 9 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: Written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hackett

SOLICITOR FOR THE APPLICANT: Hawthorn Cuppaidge & Badgery

COUNSEL FOR THE RESPONDENT: Mr Williams

SOLICITOR FOR THE RESPONDENT: Barry.Nilsson

Orders

1. The application for costs made by the applicant is 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 R Pty Ltd atf the Fletcher Trust & Jones and Anor (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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3721 of 2011

R Pty Ltd atf the Fletcher Trust

Applicant

And

Mr Jones

First Respondent

And

P Pty Ltd CAN … as trustee for Jones Trust

Second Respondent

REASONS FOR JUDGMENT

1. On 4 November 2016 I delivered judgment in an application concerning all parties seeking permission to use documents, produced in earlier Family Court proceedings, for the purposes of recently commenced Supreme Court proceedings. I granted the applicant leave to make an oral application for costs arising out of that proceeding and made an Order for the filing of written submissions. Those submissions have now been provided.

Brief background

1. The original Family Court proceedings were concerned with a division of property between a de facto couple, Ms  (“Ms Fletcher”) and Mr Jones (“Mr Jones”). During those proceedings, Ms Fletcher died and her then husband, Mr Cook (“Mr Cook”) was substituted as a party in Ms Fletcher’s stead.

2. Prior to her death Ms Fletcher had been the trustee and principal beneficiary of the Fletcher Trust (“FT”). Mr Jones was the sole director and shareholder of R Pty Ltd as trustee for the Jones Trust.

3. Ms Fletcher and Mr Jones also had interests in numerous other entities. The Family Court proceedings were settled but the Order envisaged, by notation, that any dispute relating to the assets of FT would be resolved outside the jurisdiction of the Family Court.

4. The nub of the dispute before me related to the extent to which documents needed to be identified in any Order granting permission to use them for the purpose of proceedings in another court.

5. I found inter alia, that in the particular circumstances of the case, given the significant commonality in the subject matter and interrelationship between the parties and relevant entities, a general description of the documents would suffice and an Order was made permitting the parties to disclose documents pursuant to Rule 37A(b) of the Family Law Rules 2004 (Cth) (“the Rules”) and relieving the parties of their implied undertaking not to use the documents.

Applicant’s submissions

1. The applicant seeks a costs order in the following terms:

   The respondents pay the applicant’s costs of and incidental to the application after 22 July 2016 and excluding the appearance of a solicitor on 31 October 2016, to be assessed. Certify for senior and junior counsel.

2. The significance of the 22 July 2016 is that it is the date of filing of the application and supporting affidavit and it is uncontentious that an application was in any event necessary in order for the parties to seek permission to use the documents in Supreme Court proceedings.

3. The gravamen of the applicant’s submission is that given the respondents also sought leave to use particular documents it was unreasonable of the respondents to press for the applicant to particularise the documents it sought to use when informed that the applicant wished to be able to use all documents. Reference is made to the various Rules of Court enjoining the Court to ensure that cases are resolved in a just and timely manner and requiring the parties and their lawyers to ensure that any orders sought are reasonable in the circumstances.[1]

4. Reference is made to three authorities, Lenova & Lenova (Costs)[2]; Broxham & Broxham (No 2)[3] and In the marriage of PJ and V Pennisi[4] in support of the proposition that rejection of an offer of settlement can be a powerful argument in favour of an award for costs. The offer relied upon in this case is the proposal for a joint approach to the Court in support of each party being able to use all documents identified whether particularised on not.

   [1] Reference is made to Rules 1.04, 1.06, 1.07 and 1.08 of the Family Law Rules 2004 and Rule 5 of the Uniform Civil Procedure Rules (Qld)

   [2] [2011] FamCAFC 141at [13]

   [3] [2012] FamCA 1085 at [18]

   [4] (1997) 22 Fam LR 249

Respondents’ submissions

1. The respondents oppose the application for costs and submit that the circumstances do not justify a departure from the general principle that each party should bear their own costs.

2. In particular, it is argued that an application was necessary regardless of any agreed joint approach. That concession is made by the applicant.

3. The gravamen of the respondents’ resistance to a costs order rests on the submission that their approach was in accordance with established legal principle but ultimately distinguished by me in the particular circumstances of the case. In addition, until the morning of the hearing, the applicant also sought to use documents in further proceedings not yet commenced or foreshadowed. It is argued that the late abandonment of that part of the application renders the position of the respondents reasonable of itself.

How costs applications are determined

1. Unlike civil disputes in many other jurisdictions costs do not follow the event. The basic principle in considering costs applications in this jurisdiction is that each party is to bear their own costs[5] but s 117(2) of the Family Law Act 1975 (Cth) (“the Act”) grants the Court discretion to award costs in circumstances that justify such a decision and the quantum of any costs award must be a just amount.

   [5] S 117(1) Family Law Act 1975 (Cth)

2. When considering what, if any, costs order is made the Court must have regard to a number of factors as set out in s 117(2A) but no one factor has more weight than any other nor is it necessary for more than one factor to be present.[6]

   [6] see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another(2005) 33 FamLR 123 at 130

3. The factors to which the Court must have regard, where relevant, are as follows:

   (a) the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g) such other matters as the court considers relevant.

Discussion

1. There is no issue about either party’s ability to meet a costs order.

2. The main argument in support of a costs order rests with what is said to be the unreasonable conduct of the respondents in not approaching the Court with a joint position when asked by the applicant to do so and thereafter pressing for particulars of documents when advised that all documents were required. The approach is relied upon as an offer.

3. Each party has succeeded in obtaining permission to use the documents sought by them.

4. In my view the conduct of the respondents in the circumstances of this case, do not warrant an Order for costs against them. While I took the view that to require the applicant to particularise every document was not warranted, it was a matter requiring me to distinguish authorities suggesting the contrary. Further, the applicant abandoned part of their application only on the morning of the hearing.

5. Accordingly, I find no circumstance justifying a costs Order and the application will be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 9 December 2016.

Associate: 

Date:  9 December 2016