Royce & Royce (No. 2)

[2012] FamCA 591

FAMILY COURT OF AUSTRALIA

ROYCE & ROYCE (NO. 2) [2012] FamCA 591

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment - Discovery - Costs

Family Law Act 1975 (Cth)

Munday and Bowman (1997) FLC 92-784

APPLICANT: Ms Royce

RESPONDENT: Mr Royce

FILE NUMBER: MLC 11662 of 2011

DATE DELIVERED: 12 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 July 2012

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Tulloch

SOLICITOR FOR THE RESPONDENT: JH Legal Pty Ltd

Orders

1. That the application of the wife filed 15 June 2012 be consolidated with and adjourned to the trial of all final issues to commence in December 2012.

2. That by 4.00pm on 20 July 2012, the wife provide to the husband’s solicitors a list of documents she required to be produced for inspection and subject to any objection on the grounds of privilege, those documents be made available (and to the extent that the applicant requests that copies be provided, they be so provided at her expense) and otherwise be inspected by no later than 4.00pm on 3 August 2012.

3. That there be orders in terms of paragraphs 2 to 7 of the husband’s response filed 9 July 2012 other than in respect of any reference to the property at W Street.  

4. That the response of the husband filed 9 July 2012 is otherwise dismissed.

5. That the wife pay the husband’s costs fixed in the sum of $2000 the payment of such costs be stayed until the determination of the property proceedings.

6. That the reasons this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Royce & Royce (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11662 of 2011

Ms Royce

Applicant

And

Mr Royce

Respondent

REASONS FOR JUDGMENT

1. Before me are two applications.  The first was filed by Ms Royce (“the wife”) on 15 June 2012 and the second is the response by the husband to that application.  He filed a response and then amended it.  The amended response was filed on 9 July. 

2. The application by the wife was adjourned from what I described as the first day of the hearing before a judge on 2 July.  I made it very clear, on that day, that I did not have sufficient time to determine interlocutory issues and if the parties wanted them determined, I would fix this day as the day for that determination.  Whilst the wife says she did not understand what happened that day, she certainly had discussions with counsel for the husband.

3. This morning, the wife has asked that her application be adjourned because she wants to get some legal advice.  Having regard to the fact that the trial is now fixed for December, I do not have sufficient time to allocate the sorts of orders she is seeking between now and that time. 

4. On a number of occasions, I asked what the urgency was and she could not tell me.  On that basis, I propose to simply order that her application be consolidated with the trial proceedings in December and it is otherwise adjourned thereto.

5. Despite the application for the adjournment, counsel for the husband sought to proceed with his application.  It is hard to imagine why he ought not do so.  His application, effectively, seeks the sale of two properties and it is conceded by counsel that there is a dearth of evidence about the second of those two properties but, particularly, I am conscious of the fact that it is the wife’s application to retain at least one.  There can be no dispute about the C Street property, however, because the wife concedes that it is already on the market for sale.

6. Having regard to what appears to me to be a complete breakdown in communication between the parties and the difficulties that the wife has in obtaining legal advice, I think it is sensible that I at least make an order for the sale of C Street and that the proceeds be disposed of according to the application.

7. In addition to that application, the husband also seeks what is simply described as discovery of documents.  The wife’s position is that she does not want any orders made today because she wants to get some legal advice.  Having regard to what I have just said and the fact that the trial is in December, I have had a careful look at what the husband is seeking.  The documents he wants relate to bank statements and invoices relating to a company, together with documents concerning mortgage and other loans.  They are hardly controversial.

8. Rule 13.01 of the Family Law Rules requires each party to fulfil a duty both to the court and to the other party to make full and frank disclosure of all information relevant to the case.  Rule 13.04 actually goes so far as to set out the wide reaching nature of the disclosure in setting out what sorts of documents need to be disclosed.

9. The wife has had legal advice in relation to matters up until now, albeit that there is some concern about whether or not the solicitor who was acting for her on a grant of legal aid was only doing the parenting issues.  It seems to me that she has had ample time to get advice about what the rules require and I am conscious of the fact that there is a trial in December.  There is nothing controversial about those documents and I propose to make an order that she provide them in the timeframe set out in the application.

10. The wife, somewhat defensively, says that she required documents of Mr Royce (“the husband”) and did not get what she wanted.  Rather than have a debate about who is right and who is wrong, bearing in mind there is no application before me to day for the provision of those documents, I propose to solve the problem - and this is not opposed by counsel for the husband - that within seven days, the wife provide to the husband’s solicitor a list of documents she requires to be produced for inspection and, subject to any objection on the grounds of privilege, those documents be made available and to the extent that the wife makes a request for copying, they be copied at her expense and if they are not to be copied but simply inspected, they be so inspected by 4 o’clock on 3 August.  That then disposes of the husband’s application and I otherwise propose to dismiss his response.

11. The application, then, before me seeks costs against the wife. Section 117 of the Family Law Act provides that each party in proceedings in this court shall bear their own costs unless there are circumstances that justify departure from that principle. If the court is contemplating departing from that principle, the court is obliged to take into account all of the matters in s 117(2A), bearing in mind that none of those specified factors is any more important than any other.

12. The first question, therefore, is whether or not there is a justification for making an order for costs.  I made it very clear on 2 July that I was fixing this morning to sort out the interlocutory issues associated with both the discovery and the sale of the property, together with any application associated with injunctions that the wife was seeking.  Nothing has happened, from the wife’s position, in the last ten days.  She says that she has sought legal advice and been unsuccessful.  It seems to me that this issue is not complicated and does not require legal advice.  It is a matter where there is a real risk of prejudice to the trial if these orders are not made.  On that basis, it was unnecessary for these proceedings to come on today and that is entirely the responsibility of the wife.

13. There is, therefore, a justifiable reason to depart from the principle.  However, I am obliged to take into account the financial circumstances of the parties.  I confess that I am uncertain about the financial position of both parties.  However, it seems that there are, at least, two properties and the wife has control of at least one, if not both, of them.  Just exactly whether there is any equity in those properties seems to me uncertain but, in any event, there is a current property dispute, so that both parties consider that there are resources.  It seems to me that neither party, in this case, is impecunious.

14. Another factor to be taken into account is whether or not parties have complied with court orders and filed documents in a timely way.  The wife has done nothing to resolve the issue in the last ten days, albeit she has tried to get legal advice.  It seems to me that, again, the husband has endeavoured to sort out the problem so that he can get the trial listed efficaciously in December.  I am told that there are no legal aid considerations here because the wife says that Mr Wirapper, who was her solicitor, was only dealing with a parenting issue.  Apparently, legal aid was not funding the property side of things.

15. This is a case where, clearly, the problem lies at the foot of the wife. 

16. Costs in court cases, particularly in this jurisdiction, are not a punishment. They are intended to compensate the party who has spent the money unnecessarily in having to get the court to resolve what is justly the right answer. 

17. Counsel for the husband sought costs for the last occasion on 2 July and also today.  I refuse to make an order in respect of the last occasion because the reality is the case was before me for the purposes of setting it down for trial.  The husband achieved that outcome.  On that basis, I could not be justified in making an order for costs.

18. Today, however, has been a complete waste of time in the sense that these issues should have been resolved much earlier than they have been.  Counsel sought costs, both for herself and for her instructing solicitor, unashamedly, on an indemnity basis.  Having regard to the fact that the wife is unrepresented - and I accept she is trying to get a lawyer - it would not be appropriate for me to apply the indemnity principles as were described in the decision of Munday and Bowman (1997) FLC 92-784. It seems, under those circumstances, that I should exercise my discretion and make an order for the costs that were, effectively, thrown away according to the scale and I calculate those at $2000. I do, however, propose to make an order that the payment of the sum be stayed until the determination of the property proceedings.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 July 2012.

Associate: 

Date:  26 July 2012