Tang and Lim and Anor

[2008] FamCA 662

FAMILY COURT OF AUSTRALIA

TANG & LIM AND ANOR [2008] FamCA 662

FAMILY LAW – PROPERTY SETTLEMENT – Withdrawal of Application
FAMILY LAW – COSTS - Unjustified 

Family Law Act1975 (Cth)

APPLICANT: Ms Tang

RESPONDENT: Mr Lim

INTERVENOR: Ms Y

FILE NUMBER: MLF 7700 of 2002

DATE DELIVERED: 17 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 June 2008

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr D. Cheung

THE INTERVENOR: In person

Orders

1. The application of the wife filed 13 December 2002 as amended from time to time be dismissed for want of prosecution.

2. That the response of the husband filed 17 March 2003 as amended from time to time be struck out.

3. That the application of the intervenor particularised by the orders sought filed at the commencement of the proceedings be struck out.

4. That all applications be otherwise dismissed, and all proceedings be removed from the list of cases awaiting a hearing.

5. That a transcript of these reasons be placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 7700 of 2002

MS TANG

Applicant

And

MR LIM

Respondent

MS Y

Intervener

REASONS FOR JUDGMENT

1. This is the third day of a property dispute between Mr Lim, who in these reasons I shall refer to as the husband, and Ms Tang who I shall refer to as the wife, and Ms Y to whom I shall refer as the intervenor.  The husband was born in 1959 and the wife in 1962.  They were married formally in either 1986 or 1987, depending upon cultural issues.  It would appear that the marriage was formally registered in Hong Kong on 31 March 1987.  I am told by Mr Cheung today that the parties have divorced.

2. Throughout these proceedings until today the wife has been represented by solicitor and counsel.  This morning she told me that she was no longer represented and that she could not afford the costs of the proceeding any further and in discussions with her she has indicated she wants to withdraw the proceedings.  What that really means in lawyer language is debatable, but I understand it effectively means that she does not intend to prosecute her application.

3. There is one child of the relationship, who was born in July 1987.  He is not a dependent for the purposes of any of these proceedings.  The parties came to Australia in 1996 and separated in July 2001.  On 13 December 2002 the wife filed an application seeking property division.  On 17 March 2003 the husband filed a formal response.  In many ways it is appalling this case has taken the best part of five or six years to get to the stage that it is not only part‑heard, but concludes on the basis that it is just struck out.

4. In many ways however, the parties have created the problems themselves.  Looking back through the records, the court records show that in July 2003 procedural orders were made including in relation to discovery.  There were involvements at that particular time with the intervenor.  It seems that the husband and the intervenor applied for a loan to purchase some land, and the intervenor provided security.

5. Those sorts of issues became embroiled in the dispute between the husband and the wife.  In September 2003 Mushin J ordered the husband to pay spousal maintenance of $75 per week and to provide the wife with a motor vehicle.  It became an issue in these proceedings as to whether or not the foundation for those orders was ever there.  Further orders were made by the court in 2003 and thereafter in relation to costs.  There have been proceedings in relation to paternity issues, the matter has been to the Full Court.  There have been proceedings in the Federal Magistrates Court.  There have been Child Support Agency disputes, there have been cases heard in this court in the judicial duty list.  All of these matters have clogged up the court's list for a number of years.

6. I took over the management of the proceedings as I recall late last year and endeavoured to get it out of what was then the long defended list to have it finalised and I commenced hearing the proceedings back in April of this year.  After a two day hearing which was all I had time to provide to it I adjourned it until today on part-heard basis.  What I did however, in preparation for the commencement of the trial was to extend the principle that Guest J who was managing the case in the long defended list had been trying to get the parties to do.  What his Honour did was to order the parties to file a statement of facts in issue. 

7. Even that could not be done with any certainty because when I took over the matter, I was not at all satisfied that I could determine the matter on the basis of the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”). I endeavoured to have the parties confine their issues to matters that were in dispute and for them to then file affidavit material in relation to those affidavits in dispute. As my recollection goes I said that I would be prepared to allow the parties to swear to the statements of facts in issue so that I had a very clear picture of what they were arguing about. What was fundamental to the proceedings however, was the requirement that each party file a minute of orders that they sought.

8. The wife who was the applicant in the proceedings filed a document setting out the orders that she proposed.  This document was obviously prepared by her lawyers.  She sought orders that her costs of and incidental to the proceedings including all reserved costs be taxed and paid by the husband and the intervenor.  For some reason or other she sought a formal order that previous orders for costs be enforced, but there was no application formally about that before me.

9. She then sought matters relating to section 112AD of the Act, but at the commencement of the hearing that matter was abandoned. In terms of the orders she sought in relation to property settlement, there was a specific request that the husband transfer to her any interest he have in the Crown Superannuation Fund in his name. Apart from that she otherwise sought that all extant applications be dismissed and removed from the list of cases awaiting a hearing.

10. It must be said that there was other property in her name. It is from those orders based upon the initiating application that she made that she now wishes to withdraw. The husband was in the same position. He filed a formal document requiring the following orders, firstly, that the order sought by the wife be dismissed and, "An equitable quantum meruit assessment be ordered of the wife's actual claim pursuant to section 79 of the Family Law Act 1975."

11. That obviously told me absolutely nothing about exactly what it was that the husband was seeking. The husband also sought an order that pursuant to section 75(2) a global assessment of each party's contributions to the assets pool be “realistically reached and laid down”. It is trite to say that section 75(2) has got nothing to do with contribution. The contribution issues are all set out in section 79 of the Act. The husband then sought an order that each party retain their individual superannuation contribution, so to that extent he was at odds with the orders sought by the wife. Finally the husband sought an apportionment of the matrimonial assets be determined according to the contributions in the proportions of 95 per cent to the husband and 5 per cent to the wife. That also was unhelpful because of the fact that it did not set out with any precision the orders that were being sought.

12. To try and decipher what all of that meant I required the parties to file what was an asset pool.  It turns out that from the husband's perspective that he thought that the total "matrimonial pool" was $876,986.03.  That was made up of moneys brought into Australia in 1996 and various other moneys that the wife is purported to have played with in the casino and won between 1996 and 2003.  There was no evidence in any of the documents that I could read, nor in any of the evidence of what the wife said in oral evidence, even after it was subject to some cross‑examination, that any of the moneys still existed.  If they did, there was certainly no evidence that I could see as to where those moneys now were.

13. The same must be said in respect of two bank accounts just exactly what happened to those moneys eludes me.  It seems therefore that realistically the parties ended up with a small amount of assets and the pool of assets purported to be in existence by the husband of $876,000 was never likely to be established.  The third party who was the intervenor in the proceedings pursuant to an order, also at my request, filed a set of orders that she sought.  She joined with the husband in seeking similar sorts of orders.  So to that extent the same comments apply to her.  In respect of her own claim, she sought that the husband and the wife pay to her what moneys she was owed determined according to a proportion of 35 per cent to the husband and 65 per cent to the wife.

14. There was no evidence other than something in vague terms about exactly what the wife owed.  There were also orders sought by the intervenor that losses on the property at C to which I have just referred be paid by the wife.  Those related to caveats lodged in respect of the claim that the wife seemed to at some stage or other, likely to make against the intervenor.

15. To complicate matters as I have already pointed out, the state of the evidence was nothing short of a mess.  To some extent also that can be understood by virtue of the fact that the parties were at times unrepresented and at times trying to do things on a shoestring budget.  Unfortunately that does not help the court trying to work out what to do.  To assist in defining the issues further to what I have already mentioned, I ordered that the parties file notice of objections to evidence and at the commencement on the first day of the hearing in April, I went through and ruled all of the various paragraphs either in or out. Substantial portions of the evidence was not admissible so to that extent there was ultimately very little evidence before me.

16. The problems have also been compounded by the cultural issues between the parties exacerbated by language difficulties.  I have had another problem this morning in that the intervenor who was unrepresented throughout did not have an interpreter.  I have been greatly assisted by the fact that the interpreter provided for the husband has assisted her.  I am satisfied in relation to what I am about to say, that notwithstanding the language, culture and lack of representation that the parties have understood what I have said and the course of action that I am embarking upon is what they want. 

17. The wife has told me that she wants to withdraw.  What that in reality means is that she is not going to prosecute her case.  That in turn means that I should strike out or dismiss her claim for want of prosecution.  Whether or not that closes the jurisdictional door is another question and I do not need to determine that.  It is to be noted that the parties have been divorced for more than a year, so insofar as any further application was made, they may find there are jurisdictional barriers.  The husband's position was that he was content for me to simply strike out the case that he was going to put, on the basis that there was no claim then being made by the wife.

18. The intervenor said she wanted to seek $110,000 but that also would be difficult having regard to the fact that it was not specifically pleaded, nor would I be able to decipher from the evidence that I have read whether that claim could succeed.  The same applies to the question of the caveats that I have earlier mentioned.  The intervenor said that she was seeking to have those removed.  All of those are matters that were not specifically set out in the orders sought.  It may very well be that those matters can be taken up in another jurisdiction.  I do not stay to look at the question of whether or not I would have the jurisdiction to deal with the issues including such things and the caveat withdrawals if there was no proceedings between the husband and the wife.

19. The question of whether I have an accrued jurisdiction and whether or not I could determine the matter using Part VIIIAA of the Act are all complicated issues, and having regard to the fact that the parties are largely unrepresented and there are cultural and language problems, it seems to me to be an impossible exercise to take on in the circumstances. I am satisfied in the circumstances that when I asked the intervenor what she wanted to do she said that she would seek costs, but then make an application in another court in respect of those matters that she has a complaint about against the wife, and those are matters that she can take up in another place and another time.

20. In the circumstances it seems appropriate for me to make the following orders.

DISCUSSION

1. I now have before me effectively three applications for costs.  I say effectively because for the reasons I have already earlier set out without people being represented in some detail and with language and cultural problems it is difficult to get a very clear understanding of what everybody really means.  I have presumed that from statements made by the wife she seeks orders for costs in relation to the various appearances over the many years of this case wherein the judges have reserved the costs.  I make no comment at all about the fact that there are at least two orders I have been able to find where costs were actually ordered to be paid.  What I am about to order has nothing to do with those orders, and as best I can read them, they are still in existence.  I am not dealing with those issues I am dealing with the various orders that judges along the way since 2003 have made reserving the costs. 

2. The husband equally applies for costs.  His application is in two parts.  The first part relates to what Mr Cheung described as the preparation for trial.  He said that he had to spend 30 hours reading documents.  I must digress here and say that I have some sympathies with Mr Cheung in respect of the 30 hours because the case as I have already described was in an appalling condition, and it would have been very difficult to decipher exactly what the argument was all about.

3. The second part of his costs application relates to what was described as three days of the hearing.  There were two days in April and a third day today, and in total Mr Cheung says that the husband should be paid the sum of $15,000. 

4. The intervener also applies for costs.  She through her interpreter, gave me some explanation about the fact that the difficulties have been that all of the evidence has been deceptive and untrue, she in fact organised and paid for a judge to travel from China at her expense, she also incurred legal costs with advice but could not afford to have the lawyers attend for her.  That is somewhat ironic having regard to the fact that she brought a judge all the way from China.  In her position she feels she has lost about $7000.

5. However, I am mindful of the fact that those funds have not been in any way quantified nor has it been apparent from anything that I have read through these various volumes that she has had legal advice along the way. I am therefore left with effectively as I said, three applications for costs. Any application for costs faces the first hurdle which is that section 117 of the Act says that in proceedings each party is to bear their own costs except where the circumstances justify a departure from that principle, and if I was to be minded to make any order for costs I am obliged to take into account and have very careful regard to the matters set out in section 117(2A).

6. From the husband's position, he says that he was not aware until 10 o'clock this morning that the wife was not going to proceed.  He has anticipated she would be unrepresented because he received some time ago a notice of her solicitor ceasing to act.  He said that the wife's position is and always has been frivolous and vexatious.  He pointed to the fact that she had altered her position from one thing to another, she changed from child support application to wanting a portion of the superannuation, and has now withdrawn the whole lot.  He said that his position was as I have described it, spending hours preparing for a case having regard to the fact that he had been at best intermittently involved in it.  One comment that he made creates some difficulty and that is that the late withdrawal warrants the court imposing a punishment-type approach by teaching the litigant a lesson.  He says there should be a lesson that you cannot simply wander through the court system at your leisure, at huge expense to the taxpayers, let along the other litigants, and then expect to walk away without some sort of penalty.

7. That is not what costs are all about. It has long been the principle of this court that costs if they can be justified under section 117, are only for the purposes of compensating a person who has been inconvenienced having incurred costs or expenses as a result of the conduct or other behaviour of the party who has caused those difficulties. It is not designed as a punishment, it is designed to compensate the loss of the other party.

8. Much of what Mr Cheung told me relates to the fact that he has personally had to grapple with the position of his client who had been endeavouring to conduct the litigation himself. It seems, and I recall this from a previous hearing, where he said to me that he was acting on a pro bono basis. In terms of the matters that I would need to turn to in section 117(2A) the husband is currently unemployed, and according to Mr Cheung he has no money. The irony of all this is that on any view of the facts the parties came to Australia with a significant amount of money and prior to the arrival in Australia had significant assets in China.

9. There is and always has been a dispute about what happened to all the money, but I have before me today a number of persons all of whom claim to be impecunious.  It matters little for what I am about to do.  As I said, the wife's application for costs is something that I have inferred from the fact that she has said she came along to the various hearings to find that the costs were reserved.

10. It is quite clear from the record that there have been orders for costs made in November 2003 and other orders for costs too numerous to mention have actually been simply reserved.  There is an order made by Mushin J in May 2004 where he actually fixed the costs of the wife of $1000 and stayed the payment of those until the completion of the Part VIII proceedings. 

11. A similar order was made by Guest J on 10 January 2006 wherein the wife appeared represented and the intervenor and the husband were unrepresented.  I do not have a transcript for that day, nor do I understand exactly why his Honour did what he did, but his order is quite strong; almost emotive.  His Honour says, "That the wife's costs thrown away this day by reason of the applications made by the respondent and the intervenor be fixed in the sum of $6400 and that liability for payment of those costs be determined by the trial judge upon the hearing of the substantive proceedings."

12. Mr Cheung says that one of the problems that the husband has had has been that he has been unrepresented.  It is the litigant's right to be unrepresented.  Legal representation is a privilege not a right and there was no logical reason why I should conclude anything other than that the strength of what Guest J said in the order maintains the principle that his Honour was not at all pleased about what the husband and the intervenor were doing.

1. On any view I would need to be convinced that the orders made for reserving costs on particular days throughout the number of years were based upon some conduct by one or other of the parties to be satisfied to formally make those orders today. I do not have anywhere near enough information and I suspect it would be almost impossible to get, to quantify the precise amounts incurred by the wife, but in addition I would have the difficulty of establishing the principle departure from section 117.

2. If I then turn to the third party, the intervenor's application, most of what she said related to the fact that she denies what the wife claims about her, and in particular about her relationship with the husband.  Again it is to be noted that what Guest J said in January 2006 did not just apply to the husband, it applied to the intervenor as well. 

3. In this case I could find that it would be justifiable to depart from the fundamental principle that each party pays their own costs, because the wife has effectively dumped the problem of the whole trial not only at the 11th hour, but at a third day during a part-heard proceeding.  That in itself would normally be a sufficient justification for making an order for costs.  However, in respect of the husband there can be little doubt having regard to what Guest J said in January 2006, added to which are the orders previously made by courts staying the payment of any costs until the determination of these property proceedings, that it was quite clear that the husband had contributed to the problems of the litigation as did the intervenor, and on that basis I would be justified in departing from the principle that each party pays their own costs including in relation to the intervenor.

4. In reality however, all of those matters make me ultimately turn to the provisions of section 117(2A). The first of those considerations is that I am obliged to look at the financial circumstances of each of the parties to the proceedings. The ironic if not bizarre position here is that everybody claims to be impecunious. Each blames the other; each says that the other has assets. Each refers to the various relationships in which the other is involved. I could not on any evidence I have read be satisfied that I fully understand the financial circumstances of each of the parties to the proceedings.

5. To make matters more complex, after much resistance by the intervenor, she filed a financial statement at the commencement of the proceedings.  As I pointed out having read it on the second day of the proceedings it was bordering on useless.  It had no information.  She said that there were documents and material she had to get from overseas.  I do not accept any of that.  I would be more than comfortable in saying that this is just another example of all of the financial circumstances of all of the parties being so blurred that I could not accurately say what each party has.

6. A second consideration is whether or not any person is in receipt of Legal Aid.  I have been told that no party is, and to that extent that consideration is irrelevant.

7. The third consideration relates to the conduct of the parties to the proceedings in relation to the proceedings themselves including a whole raft of things which include pleadings, particulars, discovery, inspection, admissions of fact, productions of documents and similar matters.  It is important to note that that particular consideration is prefaced by the words, "Without limiting the generality of the foregoing."

8. In this particular area I am entitled to take into account the general conduct of the way the parties have run this case.  I have already earlier described the case as a mess.  In my view notwithstanding the cultural issues and the fact that the parties have had language problems, each of them at various stages has been legally represented.  Even the intervenor who at no stage I have been able to see has appeared represented told me she had spent $7000 in legal fees.  For the parties to conduct proceedings in the way they have and expect the trial judge to try and decipher what the case was all about is nothing short of stupid.  In my view all of the parties should be criticised for the way in which they have prepared the necessary paper work for the purposes of this trial. 

9. The next issue relates to the proceedings being necessitated by the failure of a party to comply with previous court orders.  There have been many suggestions in this case about the fact that people have or have not done things they were supposed to do.  My recollection of when I took over the case late last year was that the parties still had not complied with the orders made by Guest J who was at that stage in the long defended list trying to get them to quantify and confine the dispute between them.  Even after I made orders, the position did not advance very much further.

10. The next consideration is whether any party to the proceedings has been wholly unsuccessful.  It must be said that the wife has been wholly unsuccessful in this case, but then so has everyone else.  I have been told that there are no offers in writing in relation to the settlement of the proceedings and so to that extent the provisions of normal settlement offers do not apply. 

11. That leaves me with the catch all at the end of the relevant considerations and that is that I take into account anything that otherwise might be relevant.  In this case it seems to me that the wife should have notified the other parties that she did not intend to proceed.  Whatever her logic in not doing so really matters little in this case.  She has incurred the wrath of the husband and the intervenor, and they have claimed costs in the form of some form of sanction.  Here however, the wife has persistently run her case and convinced courts along the way that she should have her costs reserved.  As I pointed out there were no orders that I could find that the husband's costs be reserved.  That may very well have been because of the fact that he was unrepresented as was the intervenor, but there was at least one occasion in which Mr Cheung appeared and again on that occasion the only order was made that the wife's costs were reserved.

12. Putting all those factors together it seems to me that the husband's costs are unjustified having regard to the wife's entitlement to costs, and the intervenor fits into the same category as the husband.  In those circumstances I refuse to make any orders for costs against either or any of the parties, and the applications by all parties for costs are otherwise dismissed.

I certify that the preceding Forty Four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 June 2008