Shnell & Frey (No 2)

[2020] FamCA 846

FAMILY COURT OF AUSTRALIA

SHNELL & FREY (NO. 2) [2020] FamCA 846

FAMILY LAW – PRACTICE AND PROCEDURE – Application for a stay – Where the wife makes an application for a stay of the hearing of an application for costs brought by the husband where he seeks his costs of and incidental to final property proceedings – Application dismissed.

FAMILY LAW – COSTS – Where the husband seeks costs incurred in responding to the wife’s application for a stay of the hearing of the application for costs – Where the wife was wholly unsuccessful – Where the wife is to pay costs fixed in the sum of $1,000.

Family Law Rules 2004 (Cth)

APPLICANT: Ms Shnell

RESPONDENT: Mr Frey

FILE NUMBER: SYC 1057 of 2017

DATE DELIVERED: 25 September 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 25 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hill

SOLICITOR FOR THE APPLICANT: Etheringtons Solicitors

SOLICITOR FOR THE RESPONDENT: Tilley Family Law & Mediation

Order

1. The wife’s Response to an Application in a case filed 8 September 2020, which made application for a stay of the hearing of the husband’s application for costs, is dismissed.

2. The wife is to pay the husband’s costs of and incidental to her application for a stay fixed in the sum of $1,000.

3. The time for the wife to file material in response to the husband’s application for costs is extended to 21 days from today.

4. The time for the wife to file written submissions is extended to 21 days from today.

5. The husband is at liberty to file any further written submissions in response to any evidence filed by the wife within 28 days from today.

NOTATION

Both parties were content for the husband’s application for costs filed 31 August 2020 to be determined in chambers without further appearance.

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 Shnell & Frey 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: SYC 1057 of 2017

Ms Shnell

Applicant

And

Mr Frey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before me today is one filed by the wife to effectively adjourn the hearing of an application for costs by the husband which was filed on 31 August 2020 until the determination of her appeal.

2. The background to this matter is that I heard final property proceedings and made a final property order on 4 August 2020. On 31 August 2020, the wife filed her Notice of Appeal against that Order and on that same date the husband filed an application seeking costs of and incidental to the property proceedings.

3. On 8 September 2020, I made directions which required the husband’s application for costs to be served upon the wife and for each party to file written submissions, and it was anticipated that the costs application would be heard in chambers without the necessity of further appearance by either party, unless either party requested otherwise.

4. Also on 8 September 2020, the wife filed this application seeking a stay of the hearing of the costs application and it is that application that is listed before me for hearing today. It is argued by the wife that it would be oppressive and an abuse of process and contrary to modern case management principles for the hearing of the application for costs to proceed. Reference is made to the general power of the Court to stay or adjourn proceedings in r 11.01 of the Family Law Rules 2004 (Cth) (“the Rules”) and in her written submissions reference is made to a 2020 decision of Rinehart v Rinehart [2020] NSWSC 68 (“Rinehart”) and in particular, to the following:

   …in general it is contrary to the public interest and the administration of justice for there to be permitted the risk of inconsistent decisions on the same issues; and there would be oppression at the continuation of proceedings with the risk of conflicting judgments, if the same or similar issues will arise for determination in each.

5. And further reliance is placed on [592] of Rinehart which quoted from the High Court decision in UBS AG v Tyne [2018] HCA 45 and in particular:

   … the varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute…

6. I must express some difficulty understanding the submission that hearing the application for costs would in some way cause oppression to the wife or is an abuse of process. In my view, it seems to be an orderly and more efficient way to proceed in this matter to determine the issue of costs because if the application for costs succeeds, the wife will no doubt wish to appeal, as is her right, against such a costs order and that appeal can then be heard at the same time as her substantive appeal. Likewise, if the application for costs is dismissed, the husband has the option of appealing and having that appeal heard at the same time as the substantive appeal. If I were to grant the stay then the parties face the prospect of not only another hearing in relation to costs, dependent of course upon the outcome of the appeal, but possibly also another appeal.

7. I propose therefore to dismiss the application for a stay.

8. I have already made directions enabling the hearing of the costs application to proceed by way of written submissions and I see that the husband has now filed his written submissions. The wife has not of course filed any response to the application for costs per se and I see in her affidavit in support of this application that she indicated she wished to put before me further evidence in response to the costs application.

9. Accordingly, paragraph 3 of the Order I made on the 8 September 2020 will be varied to extend the time to 21 days from today for the wife to file any Response and affidavit and paragraph 5 will be extended so that the wife has 21 days from today to file her written submissions.

Costs of the application for a stay

1. Mr Tilley now makes an application for costs on behalf of the husband in relation to the wife’s application in a case filed on the 8 September 2020, which I have dismissed. Mr Tilley submits that costs should be awarded in circumstances where the wife’s application was misconceived and she has been wholly unsuccessful in her application.

2. Mr Hill, for the wife, resists any order for costs making reference to Part 1.2 of the rules and in particular to r 1.08(1)(g) of the Rules identifying one of the main purposes of the Rules is to ensure the just, timely and cost effective disposal of proceedings. He submits that by bringing an application to stay the hearing of the application for costs his client was in fact seeking to minimise both parties’ costs. He suggests that had his instructors not brought the application they would in some way be open to criticism. He also submits that the husband’s costs in responding to the application brought by the wife to stay the hearing of the costs application have been incurred unreasonably.

3. It is not apparent to me on what basis such a submission could be made. The husband was required, it seems to me, to respond to the application brought by the wife to stay the hearing of the costs application. The costs associated with responding obviously include reading the material upon which the wife relied, reading her submissions in support of that application and of course the appearance today. No submission has been made against the quantum sought of $1,000, although generally the application for costs is opposed, it being sought upon behalf of the wife they simply be reserved.

4. In my view, this is a case in which there are justifying circumstances to award costs. The application for a stay for the hearing of the costs application was on one view misconceived and the reasons I have given as to why the application was in fact dismissed support in my view the making of a costs order against the wife in the sum of $1,000 and I make that order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 25 September 2020.

Associate: 

Date:  2 October 2020