STRAHAN & PP LAWYERS (FORM OF ORDERS) - [2017] FamCAFC 105

FAMILY COURT OF AUSTRALIA

STRAHAN & PP LAWYERS (FORM OF ORDERS)

[2017] FamCAFC 105

FAMILY LAW – APPEAL – ORDERS – Further orders to give effect to the reasons of Full Court – Appellant failed to comply with various orders – Orders proposed by respondent not appropriate – Appellant granted further time to comply with orders – In the event appellant fails to comply with these orders, the appeal will be dismissed.

FAMILY LAW – APPEAL – COSTS – Costs of first instance proceedings – Appellant failed to file submissions – Respondent seeks leave to file affidavit in support of submissions – Leave to file affidavit granted – Costs decision further reserved.

FAMILY LAW – APPEAL – COSTS – Costs of appeal – Timetable for making of submissions concerning costs of appeal varied.

APPELLANT:

Ms Strahan

RESPONDENT:

PP Lawyers

FILE NUMBER:

ADC

360

2016

APPEAL NUMBER:

SOA

2016

DATE DELIVERED:

6 June 2017

PLACE DELIVERED:

Perth

PLACE HEARD:

In chambers

JUDGMENT OF:

Thackray ACJ, May & Ainslie-Wallace JJ

HEARING DATE:

Written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 February 2016

LOWER COURT MNC:

[2016] FamCA 148

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Stratton-Smith

SOLICITOR FOR THE RESPONDENT:

PP Lawyers

Orders

The appellant shall file and serve a Notice of Address for Service within seven days from the date of this order.
The time within which the appellant had to comply with Order 6 made on 20 February 2017 be extended by 14 days from the date of this order.
In the event that the appellant fails to comply with Order 6 within the extended time, the appeal shall stand dismissed, but without prejudice to Orders 4 and 5 made on 20 February 2017.
The respondent have liberty to file an affidavit concerning offers of settlement made in the first instance proceedings, such affidavit to be filed and served within 14 days from the date of this order.
In the event the appellant takes issue with the affidavit filed pursuant to the preceding order, she shall file and serve an affidavit in reply within seven days of service.
Order 11 made on 20 February 2017 be discharged and the following orders are made in lieu:
(a)Either party be at liberty within 21 days from the date of this order to make an application by way of written submissions in respect of the costs incurred in relation to the appeal by filing such submissions and serving them on the other party;
(b)Within seven days from service of the submissions, the respondent to the application for costs shall file and serve written submissions in response;
(c)Within seven days from service of the respondent’s written submissions, the applicant for costs may file and serve written submissions in reply;
(d)The submissions filed pursuant to subparagraphs (a) and (b) must not exceed 10 pages and those pursuant to subparagraph (c) must not exceed five pages; and
(e)In the event either party seeks a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), such application must be contained within the written submissions.
The decision otherwise be reserved pending compliance with these orders.
There be liberty to apply for further directions.

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 Strahan & PP Lawyers (Form of Orders) 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 15 of 2016
File Number: ADC 360 of 2016

Ms Strahan

Appellant

And

PP Lawyers

Respondent

REASONS FOR JUDGMENT

The judgment we delivered in this matter on 20 February 2017 (Strahan & PP Lawyers [2017] FamCAFC 22) allowed, in part, an appeal against orders of Faulks DCJ, but left undisturbed the declaration his Honour made that the respondent had a lien over the files of the appellant.
Having foreshadowed that, notwithstanding the lien, we would order the respondent to deliver its files to solicitors appointed by the appellant, we said:[1]
[1] In our earlier reasons we called the appellant “the client” and the respondent “the solicitors”.
132.Our orders for delivery up of the files will be conditional upon the tendering of a satisfactory undertaking from [the] new solicitors. As presently advised, we consider an undertaking in the form of the alternative order proposed in the client’s Case Outline filed in November 2012 would be appropriate. It will be recalled that this provided for the new solicitors to undertake to:
(a)hold all documents subject to the lien of the solicitors for costs;
(b) afford reasonable access to the documents;
(c) keep the documents intact and within Australia; and
(d)return the documents on completion of the primary proceedings.
133.We recognise that the client has changed solicitors many times, and that she may be unable to obtain solicitors willing to provide such an undertaking and to represent her at trial. However, the hearing below and the appeal were conducted on the assumption that the client will have such solicitors. We are therefore not prepared, in making our orders, to contemplate what would need to occur if the client was left unrepresented. If that scenario were to unfold, the issues arising would need to be first considered in the court below.
134.Although the client no longer seeks delivery of the [DM Firm] files, the orders we are disposed to make will be conditional upon the client or her new solicitors making arrangements to take over responsibility for the ongoing storage or destruction of those files. We anticipate that the orders will also need to make provision relating to the release of the solicitors’ principal from her undertaking to the Supreme Court of South Australia.
135.It is unnecessary for us to make orders dealing with the lien the solicitors will retain over the fruits of the client’s litigation. Their entitlement to that lien arises independently of the matters which have been the subject of this appeal.
(Footnote omitted)
We hoped that the parties could agree a form of orders to give effect to our reasons, but in anticipation this might not occur we made the following orders:
(6)In the event the parties cannot within 14 days agree on the other orders required to give effect to the reasons of the Full Court:
(a) Each party shall within 21 days of these orders file and serve a Minute of Orders, together with written submissions (not exceeding 10 pages) dealing with the areas of difference; and
(b) Each party may within seven days of service of the other party’s submissions file and serve submissions in reply (not exceeding five pages).
Given that the appeal in relation to some substantive orders had been allowed, we also set aside the costs order in favour of the respondent. We then made these orders concerning the costs of the first instance proceedings:
(7)Within 21 days of these orders, the appellant shall file and serve written submissions (not exceeding 10 pages) dealing with the issue of the costs of the proceedings at first instance.
(8)Within 14 days of service of the submissions referred to in Order 7, the respondent shall file and serve written submissions in response (not exceeding 10 pages).
(9)Within 7 days of service of the submissions referred to in Order 8, the appellant may file and serve submissions in reply (not exceeding five pages).
We otherwise reserved judgment pending compliance with Orders 6 to 9.
On 3 March 2017, the appellant filed an affidavit in which she said our judgment seemed “clear”, but she went on to say:
4.Unfortunately, I find myself unrepresented as a result of events in other matters, but given the judgment, it seems likely I will be looking for new counsel in this matter as well.
...
9.I currently have no representation and I am looking to be represented. I am taking steps.
10.I ask this honourable court to grant me some indulgence as to upcoming hearings previously set by Thackray J.[2]
11.I do not think there is any prejudice and I would ask for an adjournment for at least a month so my new lawyers can be engaged, assist and advise me regarding the issues to be considered at these hearings.
[2] There were no such upcoming hearings.
Attached to the affidavit was a letter the appellant had sent to the respondent on 28 February 2017 responding to an overture to agree the orders arising from our judgment. The appellant’s letter advised that she:
·was no longer represented;
·accepted the terms proposed at [132] of our reasons; and
·accepted that the undertaking must come from solicitors, not from her.
The appellant’s letter to the respondent concluded:
If you could confirm that you will release the documents on this basis, then the matter only awaits the engagement of my new solicitors.
On 7 March 2017, the respondent filed an affidavit putting in evidence an email sent to the appellant on 1 March 2017. In seeking clarification of the terms proposed by the appellant, the respondent’s email said:
You should note that in paragraph 134 of the said Judgment it is stated that the Orders that the Full Court is disposed to make will be conditional upon you or your new solicitors making arrangements to take over responsibility for the on-going storage or destruction of the [DM Firm] Files. Of course, [the principal of the respondent] would need to obtain Orders from the Supreme Court for the release from her undertaking with respect to the [DM Firm] Files.
In the event that you are unable to find new solicitors in time to provide undertakings and consent Orders to the Full Court, [the principal of the respondent] is prepared to consider appropriate Orders in relation to yourself, in leiu [sic] of undertakings, for the release of all files. Accordingly [the principal of the respondent] is willing to discuss with you what form such Orders may take, that would be acceptable for both parties.
On 10 March 2017, the Appeal Registrar wrote to the appellant’s solicitors (who were still on the record) and to the respondent drawing attention to:
·the order for both parties to file a Minute and submissions relating to the orders to give effect to our reasons;
·the order for the appellant to file the first submission in relation to the costs of the first instance proceedings; and
·the need for the appellant’s solicitors to file a Notice of Ceasing to Act if they were no longer acting, and for the appellant to file a Notice of Address for Service.
On 14 March 2017, the respondent filed a Minute setting out proposed orders to give effect to our reasons, together with written submissions.
On 16 March 2017, the appellant’s solicitors filed a Notice of Ceasing to Act.
On 22 March 2017, the respondent filed submissions in relation to the costs of the first instance proceedings.
The appellant has failed to file a Minute of Orders and submissions as directed (or at all). She has also failed to file a Notice of Address for Service.
On 5 April 2017, the Appeal Registrar emailed the parties advising that the Full Court had been given all documents filed after delivery of our judgment. Each document was identified in the email. The Appeal Registrar advised the parties that they would be “contacted upon the appeal registry being notified of any further direction of the Full Court or that judgment is to be delivered”.
By letter dated 5 April 2017, a person purporting to be the appellant’s mother wrote to the presiding judge advising that the appellant had travelled overseas on 1 March 2017 and would remain there “through Easter”.
The letter continued:
We are both conscious of and concerned about the timetable set by your honour in your order of 20 February 2017.
In accordance with the tone of your order, the respondent was approached by email with our advice that we accepted your honour’s proposal and were prepared to proceed under it.
As a result of difficulties in other actions together with your honour’s response to the 13 grounds of appeal drafted by Mr. Heinrich, the applicant is presently unrepresented.
Being both unrepresented and overseas produces substantial difficulties.
At this stage, I seek to do no more than present the difficult circumstances to the court. I respectfully ask the court to take notice of these events and consider the timetable accordingly. This also serves as notice to the respondent.
At this stage, in spite of the judgment of the Full Court, nothing has been done or achieved in relation to access to these files. The status quo means that the respondent’s ongoing deprivation of the files to the appellant continues.
Consideration of costs, in my respect [sic] submission, should await a change in the overall problem, the ongoing deprivation of the files to the appellant.
I expect your honour might choose to call the matter on. If that course is taken, I ask the court to bear in mind that my daughter is presently unrepresented. As soon as she is back in Australia, I will inform the court.
On 5 April 2017, the Appeal Registry received the same letter, which had been sent (twice) from the appellant’s email address.
On 10 April 2017, the Appeal Registrar emailed the appellant advising that it was inappropriate to communicate directly with the bench, and that it was not possible for the matters raised in the letter of 5 April 2017 to be “dealt with administratively and without notice to the other party”.
The email went on:
You should seek (further) legal advice as to your rights and obligations arising from the orders made 20 February 2017 and any applications which you should make to extend time to file documents (including a Notice of Address for Service).
The Appeal Registrar received a prompt response to her email, asking “[a]re you informing me that I am to file a formal application to extend time?”
The Appeal Registrar responded on 10 April 2017:
I am suggesting that you seek legal advice. As the time for filing documents pursuant to the orders made 20 February 2017 has expired and documents filed by the respondent have been provided to the Full Court, you should seek that advice as a matter of urgency.
Nothing further has been heard from the appellant.

The orders proposed by the respondent

The orders proposed by the respondent proceed on the basis that the appellant will remain self-represented. In summary, they seek that:
·the appellant pay the respondent over $80,000 for storage fees, counsel fees and other disbursements;
·the appellant pay the respondent the annual cost of storing the files;
·the respondent permit the appellant access to the files for the purposes of her ongoing Family Court proceedings on specified conditions;
·in the event that the Family Court proceedings result in an award in favour of the appellant, the appellant direct her solicitors that any unpaid fees or disbursements be paid to the respondent; and that
·a property in Adelaide be charged with the amount owing to the respondent, and the appellant be restrained from dealing with the property and from taking steps to remove a caveat against the title.
In the alternative to those orders predicated upon the file remaining under the respondent’s control, the respondent proposed this order:
4.Should the Appellant, prior to the sealing of this Order, have instructed new solicitors to file and serve upon [the respondent] a Notice of Address for Service in this action, and such solicitors are prepared to give an Undertaking relating to the release of the file, then the new solicitors are to confer with [the respondent], within seven (7) days of receiving such instructions, for the purpose of reaching an agreement to obtain Consent Orders between both parties on such terms as agreed for the release of the said files.
In their submissions, the respondent said the orders had been drafted on the assumption the appellant would remain self-represented. This approach was adopted because the respondent did
not have any confidence that the Appellant is any more likely in the future than in the past to retain solicitors until the final determination of her primary Family Law matter, such that a solicitor’s Undertaking has any value to the Respondent.
It was further submitted that while the appellant remained unrepresented, it was undesirable that the file be released to, or accessed by, her or others without safeguards being in place. It was also submitted that while “adjudication proceedings” are on foot in the Supreme Court of South Australia it is important that the respondent has control of and access to the file.
As for the proposed charge over the Adelaide property, it was submitted that this was necessary to protect the respondent’s interest in the absence of an undertaking from a solicitor to pay monies owed to the appellant from any fruits of the litigation, noting that “there is significant risk that the Appellant will not in the future receive significant fruits of her litigation”.

What orders should the Full Court make?

We do not intend to proceed on the basis proposed by the respondent. As we said at [133] of our earlier reasons, we are not prepared to make orders that are based on an assumption that the appellant will remain unrepresented. The proceedings below and the appeal were conducted on the assumption that the appellant would have solicitors. As we pointed out in our reasons, if it transpires that the appellant remains unrepresented, the (entirely different) issues then arising would need to be considered at first instance.
The appellant has recognised in her correspondence that in order to obtain her documents it will be necessary for her to instruct solicitors who are prepared to give an undertaking along the lines foreshadowed in our reasons. However, her failure to comply with Order 6, combined with her failure to instruct solicitors to provide the undertaking, leaves the appeal proceedings in limbo.
Recognising her present status as an unrepresented litigant, we propose to give the appellant a further 14 days within which to comply with Order 6. In the event she fails to do so, the appeal will be dismissed.
In the event the appeal is dismissed, the appellant would not be without a remedy. We have already set aside the order removing the proceedings from the pending cases list. The appellant can therefore continue to prosecute those proceedings as she deems fit with a view to having access to her files to prepare for the trial which has been postponed until September 2017.
We acknowledge that in the event the appeal is dismissed, the respondent will not obtain the orders sought in the Minute filed on 14 March 2017. However, this appeal cannot be used as a vehicle to obtain standalone orders to enforce and protect what the respondent asserts are contractual entitlements. This appeal concerned the respondent’s entitlement to a lien, and the terms on which the respondent might be obliged to deliver up the files even if a lien was found to exist. The respondent has succeeded in defending the declaration that it has a lien over the files, but is not entitled to any further relief in the absence of an order requiring delivery up of those files.

The costs of the first instance proceedings

The appellant failed to file submissions as directed concerning the costs of the first instance proceedings. The respondent seeks an order that the appellant pay the costs of those proceedings on an indemnity basis.
In the submissions, the respondent seeks leave to file an affidavit setting out offers of settlement which it is claimed would justify an order for costs being made on an indemnity basis. We propose to accede to that request, and will deal with the costs issue after the affidavit has been filed.

The costs of the appeal

We have previously laid down a timetable for the filing of submissions concerning the costs of the appeal. Given the delay, we have varied the timetable as indicated in the orders set out at the beginning of these reasons.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray ACJ, May & Ainslie-Wallace JJ) delivered on 6 June 2017.

Associate:

Date: 6 June 2017