Stapleton and Bryant

[2008] FamCA 1233

FAMILY COURT OF AUSTRALIA

STAPLETON & BRYANT [2008] FamCA 1233

FAMILY LAW – PRACTICE AND PROCEDURE – Discontinuance
FAMILY LAW – COSTS – Circumstances justifying order

Family Law Act 1975 (Cth)

APPLICANT: Ms Stapleton

RESPONDENT: Mr Bryant

FILE NUMBER: MLC 553 of 2007

DATE DELIVERED: 30 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 30 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms W.A. Oomen

SOLICITOR FOR THE RESPONDENT: Jeremy Harper & Associates

Orders

1. The father pay the mother’s costs thrown away as a result of the discontinuance of his application filed on 12 August 2008 fixed in the sum of $921.

2. The payment of the sum ordered by paragraph 1 hereof be stayed for a period of 6 months from this day.

3. All first instance applications be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Stapleton & Bryant is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 553 of 2007

MS STAPLETON

Applicant

And

MR BRYANT

Respondent

REASONS FOR JUDGMENT

1. The parties have been involved in protracted proceedings, apparently culminating in a defended trial before Dessau J.  Her Honour has made certain orders which are not presently relevant and the father, who is the respondent to the present application, has appealed to the Full Court of this Court against her Honour's orders.  That appeal is awaiting the appointment of a directions hearing. 

2. In the meantime, on 12 August 2008 the father filed an application seeking that the mother's solicitor be enjoined from acting for the mother on the basis of a conflict of interest.  It appears that that assertion by the father has been extant for some considerable time.  The father agitated that issue with the Legal Services Commissioner for the State of Victoria in 2006.  In particular, he asserted a conflict of interest "perpetrated" by the mother's solicitor.  The Legal Services Commissioner considered that complaint and, on 4 July 2006, dismissed it summarily without a hearing. 

3. The father informs me that he aired the issue before Dessau J during the trial and suggests that effectively her Honour did not determine it.  However, he concedes that it is not a ground of appeal in his Notice of Appeal to the Full Court to which I have already referred.  He does suggest that he may seek to amend his Notice of Appeal, presumably at least in part to include a ground concerning the alleged conflict of interest, but that has not been done to date.

4. It is clear that the mother's solicitor received a copy, whether sealed or otherwise, of the father's application to which I have referred.  The date of receipt is unclear but is not presently relevant.  On 10 September 2008, the mother's solicitors filed a response to the father's application, seeking that his application be dismissed and that he pay the mother's costs of and incidental to that application, fixed in the sum of $1500. 

5. On 16 September 2008, the father filed a Notice of Discontinuance of his application filed on 12 August 2008.  There is some evidence to suggest that that Notice of Discontinuance was actually sent to the Court earlier.  I have a copy of a fax from the father to the Court, dated 12 September and sent at 2.16 pm on that day, forwarding the Notice of Discontinuance.  In that faxed notice, the father informs the Court that:

   This matter related to a conflict of interest has been referred to the legal services commissioner. The opposition's solicitor has been notified accordingly.

6. On the same date - that is, 12 September - there is a letter from the father to the Family Court Registry, apparently forwarding the original notice, and a further letter from the father to the mother's solicitor, advising that he had filed a Notice of Discontinuance of his application listed today.  He enclosed a copy of that document with the letter.  He advised:

   I have referred the new information revealed at trial regarding your compound conflict of interest to the Law Institute of Victoria Professional Conduct Department.

7. On 16 September, the mother's solicitor wrote to the father, enclosing sealed copies of the response to which I have referred, together with an affidavit signed by Wilma Anne Oomen, the solicitor in that firm acting for the mother, which is evidence before me today. 

8. There was then correspondence with regard to the issue of costs.  On 18 September, the mother's solicitor offered on behalf of the mother to accept a payment of $600 stayed until 23 December 2008 and submitted draft minutes of consent for that purpose.  The father declined to accept that offer.

9. The father has alleged that there is a conflict of interest.  There is no evidence before me to conclude accordingly.  The matter has clearly been previously aired and dismissed by the Legal Services Commissioner.  In the event that an appellable error has been made during the trial, that is something which the father will need to agitate before the Full Court.  The father has alleged that the mother's solicitor has acted both unethically and fraudulently.  There is absolutely no evidence whatsoever to justify either assertion, and I dismiss them out off hand. 

10. The mother now applies for costs thrown away as a result of the father's application for disqualification which is the application before me.  The costs sought are $921, which is on the legal aid scale, the mother being aided by Victoria Legal Aid.  Section 117 of the act provides that in proceedings under the act, each party pays his or her own costs.  However, I am empowered to make an order for costs if I consider it just to do so.  In considering whether it is just, I must have regard to the various matters in subsection (2A) to which I now turn. 

11. First, the mother is on legal aid, and particularly because of legal aid caps, I must take into account that if she does not receive her costs, she will have exhausted further of her funds.  Secondly, the father alleges that the mother is in a strong financial position and is at least in as strong a position, on his assertion, as he is.  He has not satisfied me of that proposition on the facts, but in any event, in the circumstances of this case I regard the issue as being of only minor relevance in my consideration.

12. The reality is that the father has agitated an issue previously issued before the legal services commissioner, apparently agitated before Dessau J and not the subject of a ground of appeal to the Full Court arising out of her Honour's orders.  In those circumstances, I find that he has been wholly unsuccessful in this application, and that alone is sufficient reason for him to pay costs.  There will be an order against him in the sum of $921.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  17 April 2009