RIMAC & RIMAC
[2020] FamCA 675
•18 August 2020
FAMILY COURT OF AUSTRALIA
| RIMAC & RIMAC | [2020] FamCA 675 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the matter was set down for an undefended hearing – Where the Respondent husband emailed the Court, the day before the hearing, seeking that the matter be adjourned on the basis that he was unable to undertake necessary preparations for the hearing and would not be able to appear at the hearing as a result of health issues – Where the adjournment was opposed by the Applicant wife – Where the husband’s brother appeared on the Respondent husband’s behalf with leave of the Court – Whether the Court should grant the adjournment – Whether the Court, if the adjournment is granted, should impose conditions – Whether costs should be awarded on an indemnity basis – Consideration given, if the proceedings are adjourned, to what orders should be made to progress the matter – Adjournment granted – Orders made for indemnity costs in a fixed sum to be paid by the Respondent husband – Orders made for future directions. |
| Family Law Act 1975 (Cth) s 117 Protected Estates Act 1983 (NSW) Family Law Rules 2004 (Cth) r 1.04, 12.13, 19.18 |
| Beach Petroleum NL v Johnson (1995) 57 FCR 119 Rasic & Rasic [2019] FamCAFC 11 Stoian & Flemming (Costs) [2014] FamCA 944 |
| APPLICANT: | Ms Rimac |
| RESPONDENT: | Mr Rimac |
| FILE NUMBER: | SYC | 1540 | of | 2014 |
| DATE DELIVERED: | 18 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 12 August 2020; 13 August 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr M Taylor of Hughes & Taylor |
| NO APPEARANCE BY THE RESPONDENT. |
| WITH LEAVE, THE RESPONDENT’S BROTHER APPEARING ON HIS BEHALF. |
Orders made on 12 August 2020:
These proceedings are adjourned for further hearing over three (3) days commencing on 24 November 2020 at 10.00am, with the fourth day, being 27 November 2020, also reserved if required.
The Respondent husband pay the costs of the Applicant wife, of and incidental to costs thrown away as a result of the adjournment Application, in the sum of $4,400, including GST, within 28 days of the date of these Orders.
Within 28 days of the date of these Orders, the Respondent husband file and serve an Affidavit explaining the reasons for his non-attendance at the hearing listed today and tomorrow, attaching a medical report from either or both Dr F or Dr G explaining:
(a) The reason for his attendance at K Hospital on 2 July 2020;
(b)The treatment provided by K Hospital and the treatment that has been provided subsequently;
(c)The prognosis of the Respondent husband and, in particular, whether it is the case, in the opinion of those medical officers, that he was not capable of adequately conducting or giving adequate instructions for the conduct of the case today, 12 August 2020 and 13 August 2020; and
(d)The prognosis of the medical officer(s) in respect to the future ability of the Respondent husband to conduct litigation in the Family Court of Australia or give adequate instructions for the conduct of his case in this Court in the future, including the hearing dates that have been set for three (3) days commencing 24 November 2020.
In the event of the Respondent husband seeking orders for the case listed on 24 November 2020 to proceed on a defended basis, he must, within 28 days of the date of these Orders, file an appropriate Application in a Case seeking to set aside the Orders made by this Court on 9 April 2020, together with a supporting Affidavit setting out the reasons why he contends that such an order should be made.
Within seven (7) days of the date of these Orders, the Respondent husband file and serve an updated Notice of Address for Service setting out any email or contact address which may be used to contact him.
In the event of the Respondent husband failing to file and serve an updated Notice of Address for Service, all further Notices served upon him by the solicitor for the Applicant wife or the Court shall be served upon the address details, including the email address, provided in his existing Notice of Address for Service filed on 5 November 2018.
This matter is listed for further directions at 9.30am on 24 September 2020 by video hearing via Microsoft Teams.
Judgment is reserved.
THE COURT NOTES THAT:
A.At the directions hearing on 24 September 2020, the parties are advised that orders made by the Court may include the following possible orders:
I. Confirming that the matters will proceed on an undefended basis for three days commencing 24 November 2020;
II. In the event that the Respondent husband files an Application to set aside the Orders made on 9 April 2020, orders for a timetable for the parties to file additional Affidavit material and to comply with their obligations of disclosure; and
III. Depending on the content of medical evidence attached to the Affidavit filed by the Respondent husband in accordance with Order 3, an order for the appointment of a litigation Case Guardian to represent the interests of the Respondent husband.
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 Rimac & Rimac 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 SYDNEY |
FILE NUMBER: SYC 1540 of 2014
| Ms Rimac |
Applicant
And
| Mr Rimac |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an Application for an adjournment of the hearing of the Application for final property orders filed on 29 May 2015 by Ms Rimac (“the wife”). In that Application, the wife seeks orders for the adjustment of the property interests between her and Mr Rimac (“the husband”). The parties were married for a period of 11 years and have been litigating this matter for five (5) years.
The hearing was to proceed on 12 August 2020 and 13 August 2020 on an undefended basis as ordered on 9 April 2020. Orders were made for the case to proceed on an undefended basis on that day, pursuant to r 12.13 of the Family Law Rules 2004 (Cth) (“the Rules”), as a result of the husband not appearing at that Court event which had been listed on that day as a consequence of the husband also not appearing at an earlier Callover on 2 March 2020.
Early in the afternoon on 11 August 2020, the husband sent, directly to my Chambers, an email advising the Court that he had been unable to undertake necessary preparations for the hearing and would not be able to appear at the hearing as a result of health issues, including the fact that he had been admitted to the K Hospital in the period between 2 July 2020 and 5 July 2020 after suffering a seizure.
The husband did not attend the online hearing of this matter but instead was represented by his brother who was given leave to appear for the purpose of making the adjournment Application on behalf of his brother. He was assisted by an interpreter.
Background
In 1946, the wife was born in Town H. She is currently aged 74 years. The wife goes by the name Ms Rimac, however, was born Ms L.
In 1957, the husband was born in Town H. He is currently aged 63 years.
In late 1999/early 2000, the parties met.
In 2001, the parties married.
In 2004, as noted in the decision of Aldridge J in respect to an appeal concerning an issue that has previously arisen in these proceedings,[1] the parties were involved in a serious motor vehicle accident. Both parties were significantly injured. The husband suffered a severe traumatic head injury and remained in rehabilitation until mid-2004.
[1] [2019] FamCAFC 11
In June 2006, the husband settled his proceedings for personal injury in the District Court of New South Wales, receiving compensation of $3,750,000, cost of funds management of $639,860 and agreed costs of $150,000. A management order was made under the Protected Estates Act 1983 (NSW) and the Protective Commissioner (later called the NSW Trustee & Guardian) was appointed as the husband’s financial manager.
The wife disputes the husband’s contentions that the parties separated in December 2003 and contends that the parties separated on a final basis on 25 March 2011.
In 2014, the parties were divorced.
On 23 December 2014, after a three (3) day hearing which had occurred earlier that year, a judge of the Supreme Court revoked the management order.
The wife commenced these proceedings on 29 May 2015.
Evidence
Wife’s case ready to proceed
The wife was in a position for her case to proceed to final hearing on 12 August 2020 and had filed and served upon the husband the following:
a)Initiating Application filed 29 May 2015;
b)Short Minute of Order filed 7 August 2020;
c)Affidavit of the wife filed 21 July 2020;
d)Financial Statement filed 29 May 2015;
e)Financial Statement filed 2 October 2018;
f)Financial Statement filed 20 July 2020;
g)Financial Questionnaire filed 12 August 2016;
h)Balance Sheet filed 19 August 2016;
i)Updated Balance Sheet provided to the Court by email on 10 August 2020;
j)Undertaking as to Disclosure filed 7 August 2020;
k)Tender Bundle of exhibits including supplementary Tender Bundle of exhibits;
l)Written summary of argument provided to the Court by email on 7 August 2020; and
m)Chronology provided to the Court by email on 7 August 2020.
Adjournment Application
In respect to the adjournment Application, the wife relied upon the following:
a)Affidavit of Mr M Taylor, the legal practitioner representing the wife, filed 11 August 2020.
The husband relied upon the following:
a)Letter sent to the Court on 11 August 2020 attaching documents of his current medical circumstances (marked ‘Exhibit A’ in the proceedings).
Issues
The three (3) issues to determine in these proceedings are:
a) should the proceedings, listed for hearing on 12 and 13 August 2020, be adjourned; and, if so
b) on what conditions; and
c) if the proceedings are adjourned, the orders that are required for the further progress of this matter.
Should the proceedings be adjourned
On behalf of the husband, it was argued that the proceedings should be adjourned in light of medical evidence provided to the Court, and not to the wife, by the husband by email directly to my Chambers on 11 August 2020. It was contended that the medical evidence establishes that the husband has been unable to attend to preparing his case or to appear in these proceedings. The substance of that medical evidence was summarised in the submissions by the solicitor for the wife, which I set out immediately below.
The wife submitted that, having regard to the history of this matter, the Court should decline the Application to adjourn the proceedings. In that respect, it was noted that the wife contends the parties separated on 25 March 2011 and that they were divorced on 13 May 2014. The wife commenced these proceedings on 29 May 2015 and, in 2015 and 2016, a Registrar of the Court made a number of case management orders, many of which were ignored or only partially complied with by the husband. This resulted in several costs orders being awarded against him.
The matter was first allocated to the pool of matters awaiting allocation of a hearing date on 25 August 2016.
The husband has engaged a number of different firms of solicitors to act on his behalf, however, on 5 November 2018, he filed a Notice of Address for Service in which he provided an email address and a residential address at Suburb M in New South Wales.
The solicitor for the wife referred to his Affidavit dated 11 August 2020 which, in my view, accurately sets out attempts that he has made to notify the husband of these proceedings.
In that Affidavit, reference is made to the fact that a notice of Callover was provided to the parties on 18 February 2020. The solicitor for the wife acknowledges that that notice was not received by the husband as it was sent by the Court to the address of one of the husband’s previous solicitors.
Accordingly, on 19 February 2020, the solicitor for the wife emailed to the husband the notice of Callover at the email address recorded on the husband’s Notice of Address for Service and also by forwarding the Callover notice to his postal address. The solicitor for the wife further emailed the case coordinator of the Sydney Registry of the Family Court to inform her that the email had been sent to the address of the husband’s former solicitors and not to the husband as noted on the husband’s Notice of Address for Service.
There was no appearance by the husband on 2 March 2020, as a result of which the proceedings were adjourned until 9 April 2020 for the Callover. Orders made on 2 March 2020 specifically noted the possibility of the matter being set down for an undefended hearing in the event of the husband failing to appear on 9 April 2020. The Orders of the Court made on 2 March 2020 were, on 4 March 2020, sent to the husband by way of email and letter addressed in accordance with the husband’s Notice of Address for Service as filed by him on 5 November 2018.
From paragraph 13 of the Affidavit of the solicitor for the wife, Mr Taylor sets out further steps that he took to serve relevant documentation upon the husband. The Affidavit notes that the correspondence provided by the husband to the Court by way of email on 11 August 2020 indicated that the husband had received documentation forwarded to him on 13 July 2020. In those circumstances, it was submitted that, at the very least, the Court can conclude that the husband has been well aware of these proceedings since 13 July 2020.
The solicitor for the wife contended that the medical evidence submitted to the Court to justify the adjournment Application by the husband is inadequate. It was noted that the medical evidence includes a discharge reference note provided by the K Hospital indicating that the husband was admitted to hospital on 2 July 2020 and remained in hospital until 5 July 2020. It appears that the reason for the admission was as a result of the husband suffering a seizure due to the consequence of the brain injury which I have earlier referred to. The medical evidence provided by the husband, it was noted, also included a report from Dr F dated 17 July 2020 addressed to one of the husband’s other treating doctors, Dr G, in which, by way of summary, it was stated that the cause of the husband’s seizure had been as a result of the husband taking incorrect medication.
The solicitor for the wife contended that, while the evidence establishes that in early July the husband suffered a seizure, there is no evidence regarding the husband’s capacity to conduct these proceedings or give adequate instructions for the conduct of these proceedings.
It was noted that the medical evidence refers to the husband suffering an earlier seizure in 2018 and, despite that, it was contended that the husband has been able to conduct litigation including by way of seeking leave to appeal to the Full Court in early 2019, giving rise to the decision of Aldridge J to which I have earlier referred. In other words, it was contended that the conduct of the husband establishes that, despite evidence that he has previously suffered seizures, he is capable of conducting proceedings in this Court.
It was submitted that, having regard to the manner in which the husband has conducted these proceedings, including by failing to comply with case management orders and directions in failing to respond to notices that have been served upon him, the Court should find that the husband’s non-attendance at today’s proceedings is a deliberate attempt on his part to thwart the wife from proceeding with her case.
Consideration in respect to the adjournment application
The granting of an adjournment, essentially, involves balancing, on the one hand, the issue of fairness to the parties as against the efficiency of the litigation process, not only to the parties in these proceedings but also to other litigants. In Ducatti & Tritton and Anor [2018] FamCA 979, at [14]-[18], I summarised those relevant principles.
In considering where the balance falls, r 1.04 of the Rules is significant. That rule provides that:
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
The objects of that rule are, obviously, impeded where there is an adjournment. As against that, however, is the fairness to the parties.
The submissions by the solicitor for the wife were, with respect, clear and cogent and he presented a strong case as to why, in the absence of satisfactory medical evidence regarding the husband’s current health, an adjournment should not be granted.
However, it is clear that the husband has, in fact, suffered a serious brain injury and the Court is left in a position where it does not currently have sufficient details of the impact of that injury on the husband and, specifically, his capacity to conduct litigation and/or to provide instructions to a legal advisor to conduct litigation.
In that context, I enquired of the solicitor for the wife as to the prejudice that the wife would suffer if the proceedings were adjourned to enable the Court to have the opportunity to obtain, through the husband, evidence of the impact of his brain injury on his ability to conduct litigation.
The solicitor for the wife contended that the prejudice to the wife should be seen in the context where these proceedings have been in the Court for in excess of five (5) years, the wife is 74 years of age and is entitled to move on with her life and, finally, in light of the history of the manner in which the husband has conducted himself in these proceedings, at this stage, the Court cannot be confident that, even if an adjournment is granted, he will appropriately engage in the proceedings.
I am satisfied that the wife, who has travelled from Town H to Sydney in order to be available to provide instructions to her legal advisers, will be prejudiced if there is an adjournment of the matter. On balance, however, I am satisfied that that prejudice to the wife can be mitigated, to an extent, by making an appropriate order in respect to costs.
Terms on which the adjournment order should be granted
Costs
I am satisfied that the adjournment should be granted on the basis of the husband paying costs thrown away by the wife as a result of the matter being adjourned. It was submitted, by the solicitor for the wife, that those costs should be awarded on an indemnity basis.
In Gadde & Gadde [2015] FamCA 617, I noted the following at [75]-[83]:
75. Section 117 of the Act sets out the basis upon which the Court is empowered to award costs. That section relevantly provides:
117 Costs
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the Court shall have regard to:
(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.
(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the Court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the Court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the Court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the Court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
(4A) If:
(a) under section 91B, an officer intervenes in proceedings; and
(b) the officer acts in good faith in relation to the proceedings;
the Court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the Court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.
76. A litigant in the Family Court must establish that the justice of the case requires an order for costs by reference to the non-exhaustive list of statutory considerations set out in section 117 before any such order is made.[2] …
[2] See Laskari &Laskari and Ors [2015] FamCA 398 at [106] where reference is made to Prantage (2013) FLC 93-544.
…
78. In Melville&Dent (No.2) [2009] FamCA 81, Cronin J discussed the basis upon which the question of indemnity costs arise and referred to, at [33], the decision of Sheppard J in Colgate Palmolive Company and AnorvCussons Pty Limited (1993) 46 FCR 225 as providing a ‘pertinent observation’ of the ‘court-endorsed costs structure of litigation’, where his Honour said:
For present purposes it is enough to say that the position is as it is because members of the profession, both solicitors and counsel, and also professional witnesses, have refused to accept as a proper or sufficient guide to their costs and fees the provisions of scales of costs and charges provided for in schedules … Taxing officers have been obliged to tax bills on the basis of the Rules and the Schedule. The fact that the scales themselves provided ranges of fees of charges for various items depending on degree of difficulty, levels of responsibility and time involved, has not overcome the practical problem which exists.
79. In Kohan&Kohan (1993) FLC 92-340, the Full Court noted that it was “an exceptional case” where the Court departed from the general rule that costs, if awarded, should be on a party/party basis and, instead, be on an indemnity basis. In Yunghanns & Yunghanns (2000) FLC 93-029, the Full Court, applied Kohan (supra), to confirm that an order for the payment of indemnity costs is “a very great departure from the normal standard”.
80. Nevertheless, as confirmed by the Full Court in Fennessy & Gregorian (2009) FLC 93-399, referring to the decision of Sheppard J in Colgate-Palmolive Co (supra), there are circumstances which may arise that “warrant the Court in departing from the usual course” of awarding party/party costs and, instead, awarding costs on an indemnity basis.
81. While the categories in which indemnity costs may be awarded are not closed, examples of situations which may justify that course of action are usefully set out by Harper J in in Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7] as including where:
(i). The making of an allegation, known to be false, that the opposite party is guilty of fraud: Fountain Selected Meats (Sales) Pty Ltd. v International Produce Merchants Pty Ltd (1988) 81 ALR 397.
(ii). The making of an irrelevant allegation of fraud: Thors v Weekes (1989) 92 ALR 131.
(iii). Conduct which causes loss of time to the Court and to other parties: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, French J, 3 May 1991).
(iv). The commencement or continuation of proceedings for an ulterior motive: Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, Davies, J., 5 March 1993).
(v). Conduct which amounts to a contempt of Court: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59.
(vi). The commencement or continuation of proceedings in wilful disregard of known facts or clearly established law: J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers (WA) Branch (No 2) (1993) 46 IR 301.
(viii). The failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial: National Australia Bank v Petit-Breuilh (No 2) (unreported, [1990] VSC 395, 18 October 1999).
82. A similar summary of the kinds of conduct justifying an order for indemnity costs can be found in Colgate-Palmolive Co (supra) at 233-234. Those principles have generally been applied in this Court.[3]
83. It is clear that gross discourtesy to the Court and another litigant that needlessly causes loss of time and needless expense can be grounds for the awarding of indemnity costs.[4]
[3] See for instance useful analysis by the Full Court of the Family Court in Limousin v Limousin (Costs) (2008) 38 Fam LR 478; Watts J in Lambert and Jackson [2011] FamCA 275 and see also Ryan v Primesafe [2015] FCA 8 at [110].
[4] Byrnes v Brisconnections Management Company Limited (No. 2) [2009] FCA 1432 (27 October 2009) at [49] and Freeman v James [2002] QSC 464 (29 November 2002) at [12].
It has been established that, while the Court is required to consider those matters set out in s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”), the Court may determine that a costs order is just and appropriate when one or more of those considerations is established. In this case, I have considered each of the matters set out in s 117(2A) of the Act and have determined that an order for costs is appropriate having specific regard to s 117(2A)(c).
In that respect, it is clear that the husband has been aware of these proceedings since at least 13 July 2020 and, yet, it was not until the afternoon prior to the hearing that he advised the Court that he was unable to attend. His conduct in doing so represents a gross discourtesy to the Court, to the legal representative for the wife and to the wife. It also falls within the third category referred to in Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189.
Accordingly, I make orders for the husband to pay the wife indemnity costs as a result of the matter being adjourned.
Quantification of indemnity costs
Rule 19.18 of the Rules provides for the methods of calculating costs. These include, in r 19.18(1)(a), the Court fixing upon a specific amount for costs or, in r 19.18(1)(b), an order for the costs to be assessed on a particular basis.
In Stoian & Flemming (Costs) [2014] FamCA 944, Kent J endorsed the applicable principles for applying an equivalent rule to r 19.18, as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Limited & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23. Those principles are:
· the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation.
· the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable.
· the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available.
· a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place.
· the gross sum “can only be fixed broadly having regard to the information before the Court”: Beach Petroleum NL v Johnson (1995) 57 FCR 119 at [124].
Consistent with those principles, it has been determined that, where a court orders a party to pay indemnity costs and the matter is relatively simple, it may be appropriate for the court to fix a lump sum. By doing so, the court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill.
I have inquired of the solicitor for the wife as to what those indemnity costs would be. He has indicated that the costs incurred as a result of costs thrown away by the adjournment of the proceedings, as assessed on an indemnity basis, total the sum of $4,400 including GST. I am satisfied that that amount is logical, fair and reasonable and I will, therefore, make an order for the wife’s costs to be paid by the husband in that sum within 28 days the date of these orders.
Further case management
This matter has been in the Court system for a period in excess of five (5) years. The wife is entitled to have her case heard to enable her to move on with her life. Other litigants also have an interest in this matter being finalised so that the Court can effectively and efficiently use its resources to finalise a significant number of cases that are awaiting hearing. In that respect, as a result of this matter being adjourned, other litigants have been prejudiced because the Court has, effectively, lost two (2) days of hearing time that could have been applied to another case awaiting a hearing date.
Accordingly, for those reasons, I have made the case management directions set out in the Orders made on 12 August 2020 and as included at the commencement of these reasons for judgment. In summary, I confirmed to the parties that this matter will be finalised by way of trial listed for three (3) days commencing 24 November 2020 with the fourth day reserved, if necessary. I have provided notice to the parties that, depending on the medical evidence provided by husband, which may or may not establish that he is not capable of conducting or providing instructions to legal advisers to conduct these proceedings, then the Court may give serious consideration as to whether it is appropriate to appoint a case guardian to act on behalf of the husband. That issue will be further considered when this matter is listed for further directions on 24 September 2020 at 9:30am.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 18 August 2020.
Associate:
Date: 18 August 2020
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