TANSEL & DELLOS

[2020] FCCA 2367

FEDERAL CIRCUIT COURT OF AUSTRALIA

TANSEL & DELLOS [2020] FCCA 2367

Catchwords:
FAMILY LAW – Interim Judgment – practice and procedure – dismissal of Application in a Case to join Solicitor to proceeding – dismissal of Application in a Case for retrospective and prospective costs – release of medical documents under subpoena. 

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 16A.13(2)(b).

Cases cited:

Kohan & Kohan (1993) FLC 92-340
Davida & Davida (Costs) [2011] FamCAFC 61

Applicant: MS TANSEL

Respondent: MR DELLOS

File Number: MLC 6067 of 2018

Judgment of: Judge C. E. Kirton QC

Hearing date: 17 August 2020

Date of Last Submission: 17 August 2020

Delivered at: Melbourne

Delivered on: 17 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Glezakos

Solicitors for the Applicant: Kenna Teasdale Lawyers

Respondent: In person

Senior Counsel for Respondent to Application in a Case filed by the Respondent Husband on 21 July 2020 and also for Kenna Teasdale Lawyers Mr Bartfiled QC

ORDERS

1. Pursuant to r.1.06 of the Federal Circuit Court Rules 2001 (Cth), Mr B named in the Application in a Case filed on 21 July 2020, as the First Respondent, be excused from compliance with r.16A.13(2)(b) of those Rules.

2. The Application in a Case filed by the Respondent Husband on 21 July 2020 is dismissed. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6067 of 2018

MS TANSEL

Applicant

And

MR DELLOS

Respondent

EX TEMPORE JUDGMENT

Introduction

1. Proceedings in this matter were commenced by the Applicant Wife by way of an Initiating Application filed in the Court on 31 May 2018 seeking a matrimonial property settlement.  On 17 May 2019, the Respondent Husband filed an Amended Response in which he sought parenting orders in relation the parties’ two daughters, X and Y, aged 9 and nearly 8, respectively. 

2. The proceeding has been listed before the Court today for Final Hearing with an estimate of 4 days. 

3. The Court also has before it the Husband’s Application in a Case, filed on 21 July 2020, which has been made returnable before the Court today on the first day of the Final Hearing. 

4. It is necessary for the Court to rule upon the Husband’s Application in a Case, for if the Court were to accede to some of the orders sought in the Application in a Case, the Final Hearing would be required to be adjourned.

5. The Court now delivers Judgment in relation to the Application in a Case. 

Documents Relied On

1. In relation to the documents relied on by the parties, the Court has before it an electronic file entitled ‘Court Book in Relation to an Application in a Case Filed 21 July 2020’, which was emailed to Chambers on 13 August 2020 by the Wife’s lawyers (referred to as the Court Book).

2. The parties relied upon the following documents, which are included in the Court Book.  The Respondent Husband relies upon:

   a)Application in a Case, filed on 21 July 2020 (referred to as the Application in a Case); and

   b)The affidavit of the Husband, filed on 21 July 2020 (referred to as the Husband’s Affidavit). 

3. The Solicitor involved in these proceedings relies on:

   a)A Response to Application in a Case, filed on 11 August 2020;

   b)Affidavit of the Solicitor, filed on 11 August 2020;

   c)Affidavit of the Solicitor, filed on 13 August 2020;

   d)Outline of Argument, filed on 13 August 2020;

   e)Order of the Court made on 25 June 2018;

   f)Order of the Court made on 21 July 2020; and

   g)Documents in Part C of the Court Book which include the Wife’s Court documents, being:

   i)Subpoena to Maurice Blackburn Lawyers, filed by the Wife’s lawyers on 25 September 2018 (referred to as the First Subpoena).

   ii)Notice of Request to Inspect (Maurice Blackburn Lawyers), filed by the Wife’s lawyers on 15 November 2018 (referred to as the First Notice to Inspect).

   iii)Subpoena to Maurice Blackburn Lawyers, filed by the Wife’s lawyers on 11 April 2019 (referred to as the Second Subpoena).

   iv)Notice of Request to Inspect (Maurice Blackburn Lawyers), filed by the Wife’s lawyers on 6 May 2019 (referred to as the Second Notice to Inspect).

   v)Subpoena to Maurice Blackburn Lawyers, filed by the Wife’s lawyers on 8 January 2020 (referred to as the Third Subpoena).

   vi)Notice of Request to Inspect (Maurice Blackburn Lawyers), filed by the Wife’s lawyers on 23 January 2020 (referred to as the Third Notice to Inspect).

4. I should also note that the Respondent Husband relies on an Outline of Argument filed on Saturday 14 August 2020.

5. I turn to the background of this case. 

Background

1. In the Husband’s Affidavit, the Husband deposed, at paragraphs 2 and 3 that he suffered a workplace injury in late 2013, being a psychological injury, and that he subsequently ceased work as a result of the injury.  He was employed as a professional at a large company.  The Husband deposed that he is presently on a disability pension as a result of his workplace injury.  The issues in this case therefore include:

   a)The extent and the amount of the Husband’s entitlement to compensation from the injury he suffered from in 2013;

   b)The impact of the Husband’s mental health in relation to his capacity for employment; and

   c)Whether the Husband’s mental health has any impact on his parenting capacity.

Application to Join the Solicitor and Orders Sought Against Kenna Teasdale Lawyers

1. I turn to the application to join the Solicitor and the orders sought against Kenna Teasdale. 

2. I first consider the purported joinder of the Solicitor as a party to this proceeding and the orders sought by the Husband against the Wife’s lawyers, Kenna Teasdale. 

3. The Application in a Case purports to join the Solicitor as a party to this proceeding by naming him as First Respondent to the Application in a Case. 

4. The Application in a Case also seeks orders against Kenna Teasdale in every paragraph of the orders sought by the Husband.  There has been no previous order of the Court to join either the Solicitor or Kenna Teasdale to this proceeding.  Rule 11.02(2) of the Federal Circuit Court Rules 2001 (Cth) (herein after referred to as the Rules), provides:

   11.02(2) A party may not include a person as a party after the first court date without the leave of the Court.

5. In the Application in a Case, the Husband does not seek leave of the Court to join either the Solicitor or Kenna Teasdale to this proceeding. 

6. The Solicitor opposes being joined to this proceeding. Kenna Teasdale seeks to be heard as persons affected by the orders sought in the Application in a Case.  The firm is not interested in joining as a party to the proceeding. 

7. The Court does not intend to join either the Solicitor or Kenna Teasdale to this proceeding and agrees with the submissions made by Senior Counsel that the Husband’s application against the Wife’s lawyers is misconceived.

8. There are two principal grounds for the Court’s decision.  I turn to the first ground.

First Ground

1. First, the Husband seeks in paragraph 4 of the Application in a Case that there be an updated Family Report prepared by Ms C prior to the Final Hearing, and that Kenna Teasdale pay for all the consequential costs arising as a result of the preparation of an updated report.  The Husband’s application for an updated Family Report by Ms C was dismissed by Order 12 of the orders made by Judge Stewart on 21 July 2020, the same day the Husband filed the Application in a Case and the Husband’s Affidavit.

2. Judge Stewart has had this matter on her docket since the commencement of this proceeding.  The Court does not propose to re-ventilate the issue of an updated Family Report on the first day of the Final Hearing, which is listed for four days, after Judge Stewart has expressly considered and ruled on the matter four weeks ago.  The Father’s Affidavit discloses no evidence that would warrant such a course of action.

Second Ground

1. The Court now turns to the second ground that the Court considers the Husband’s application against the Wife’s lawyers to be misconceived. 

2. Order 4 of the Orders made by consent on the first return date of this proceeding on 25 June 2018 included the following:

   (4)Within 21 days of the date of these Orders, and to the extent not already provided, the Husband provide to the Wife the following by way of disclosure:

   (a)all Court documents and correspondence to and from his lawyers, Maurice Blackburn Lawyers (or any other firm instructed by him) in relation to his litigious claim against Employer D arising from the termination of his employment in 2014;

   (b)a copy of all invoices received by him from Maurice Blackburn Lawyers (or any other firm instructed by him) and any costs agreement he has signed in relation to his litigious claim against Employer D;

   (c)copies of any assessments and/or the medical reports that have been undertaken/produced in relation to his litigious claim against Employer D[…]

   (Emphasis added)

3. It is evident that the Husband agreed, and the Court Ordered, from the commencement of this proceedings that the Wife (and, therefore, the Wife’s lawyers) were entitled to receive medical reports in connection with the Husband’s claim against Employer D.  It is unarguable that Order 4 of the Consent Orders required that hardcopies of the documents were to be provided to the Wife (and, therefore, the Wife’s lawyers).

4. The Solicitor has deposed, in paragraph 7 of his affidavit of 11 August 2020 that the Husband failed to provide full and frank disclosure concerning his compensation claim against Employer D.  As a result, the Wife’s lawyers have been required to serve three subpoenas on the Husband’s personal injury lawyers, Maurice Blackburn, on 25 September 2018, 11 April 2019 and 8 January 2020 (hereafter referred to collectively as the Subpoenas).

5. The Husband’s assertion in paragraph 45 of the Husband’s Affidavit that all the Subpoenas were:

   [...] filed without specifically seeking discovery documents from me prior to issuing these subpoenas.

   Is without foundation.

6. First, the Court had ordered discovery of various documents by the Husband in Orders 4(a) to (i) of the Consent Orders made on 25 June 2018. 

7. Second, as deposed to by the Solicitor in the Solicitor’s Affidavit of 11 August 2020 at paragraphs 19-21, the Husband withdrew his Notice of Objection to the First Subpoena and paid the Wife’s lawyer’s costs in relation to the Notice of Objection.

8. Third, the Wife’s lawyers sought updated discovery after service of the First Subpoena from the Husband’s lawyers, as deposed to by the Solicitor in the Solicitor’s Affidavit of 11 August 2020 at paragraph 26.

9. Fourth, the Husband failed to file a Notice of Objection pursuant to r.15A.14 in relation to either the Second Subpoena or the Third Subpoena.

10. The Solicitor has comprehensively deposed to the circumstances relating to the service of the Subpoenas on Maurice Blackburn and the circumstances by which various medical reports came into the Wife’s lawyers’ possession.  The Solicitor has also deposed to some errors the Wife’s lawyers made when managing the documents relating to the Subpoenas, which constituted breaches of the Rules (referred to as the Breaches).  These were:

    a)When completing the Second Notice to Inspect and the Third Notice to Inspect, the Solicitor answered, “No” to the question of whether the documents sought in the relevant subpoenas included medical records.  In fact, the Second Subpoena and the Third Subpoena sought production of the Husband’s updated medical records and reports.  This is in the Affidavit of the Solicitor, dated 11 August 2020, at paragraph 9.

    b)The subpoenaed documents in relation to the Second Subpoena and the Third Subpoena, including medical reports, were administratively released for inspection and copying. Copies were made by the Wife’s lawyers of some of the Husband’s medical records without first obtaining leave of the Court.  This is in paragraph 10 of the Solicitor’s Affidavit of 11 August 2020.

11. The Solicitor has apologised for these errors at the earliest opportunity that the Breaches came to his attention, in the Solicitor’s Affidavit of 11 August 2020 at paragraph 2(a), paragraph 9 and paragraph 50. 

12. For the reasons that follow the Court accepts that the submissions made by Senior Counsel in the Outline of Argument at paragraph 10, that the errors were minor and of no consequence when viewed in the context of the circumstances of this case. 

13. The Court, accordingly, intends to make the order sought in paragraph 1 of the Response that, pursuant to r.1.06 of the Rules, that the Solicitor be excused from compliance with r.15A.13(2)(b) of those Rules.

14. In considering the second ground of the Court’s reasons, that the Husband’s application against the Wife’s lawyers was misconceived, the Court has also taken into account the following matters.

Complaints made by Respondent Husband

1. The Husband complains that he was not served with a Notice of Request to Inspect in relation to each of the three Subpoenas.  Rule 15A.13(1)(c) does not require the Wife’s lawyers to file a Notice of Request to Inspect on the Husband or the Husband’s lawyers. 

2. The Husband complains that documents were copied illegally:

   a)The letters and reports produced pursuant to the Second Subpoena were copied in breach of r.15A.13(2)(b) of the Rules.  The Solicitor has deposed in his Affidavit of 11 August 2020 at paragraph 35, that these documents were in safe keeping and have not been shown to anyone.

   b)Three medical documents have found their way into evidence.  The provenance of each of these has been established to have been from the Husband.  These documents are:

   i)The Medical Panel’s Decision, dated 7 February 2020.  The Solicitor deposed in his Affidavit of 11 August 2020 in paragraph 32 and Annexure “-3”, that these documents were provided by the Husband’s lawyers to the Wife’s lawyers under cover of a letter dated 7 May 2019. 

   ii)The report of Dr E, dated 16 August 2019, and the report of Dr F, dated 2 August 2018, were referred to in the Family Report prepared by Ms C dated 31 September 2019 (referred to as the Family Report).  The Family Report was produced by the Husband in the Husband’s Affidavit as Annexure “-F”.  At page 3 of the Family Report, Ms C records the reports of Dr E (Consultant Psychologist) and of Dr F (Consultant Psychiatrist) under the heading “Husband’s Documents”.  The inference is that these reports were provided to Ms C by the Husband or the Husband’s lawyers. This position was confirmed by the Husband’s lawyers’ letter to the Wife’s lawyers, dated 30 September 2019, forwarding copies of these reports to the Wife’s lawyers. A copy of this letter is annexed to the Solicitor’s Affidavit of 13 August 2020 at paragraph 7 and Annexure “-3”. It is therefore evident that these reports were not in the possession of the Wife’s lawyers at the time that the Family Report was prepared and that they were provided to Ms C by the Husband’s lawyers. The Court notes that these reports should have been provided by the Husband to the Wife’s lawyers pursuant to the Consent Orders made on 25 June 2018.

   c)Otherwise, the Court finds that any other documents that the Husband complains about have now been copied legitimately.

3. The Court takes into account the submissions settled by Senior Counsel in the Outline of Argument, that the Wife’s lawyers acknowledge that compliance with the Rules is a serious issue.  The Court also takes into account the request that the Court consider the Breaches in relation to this matter should be excused.  The Court has already indicated that it intends to excuse the Breaches. 

4. In exercising its discretion in relation to the Breaches, the Court has maintained a perspective of proportionality.  In this case, the Court has taken into account the following:

   a)It has accepted that the Breaches were inadvertent.  In this context, the Court is reasonably confident that the events leading to the Breaches are unlikely to occur again.  The Court also expressly rejects the allegations made by the Husband that the Breaches took place with a lack of bona fides by the Solicitor.

   b)The Solicitor has apologised as soon as the Breaches were drawn to his attention.

   c)There was a clear obligation on the Husband by reason of the Consent Orders made on 25 June 2018 for copies of any assessment and medical reports in relation to his claim against Employer D to be discovered to the Wife.  This was not properly done by the Husband.

   d)The copying of the medical reports has now been authorised by Order 15 of the Orders made on 21 July 2020 by Judge Stewart which stated:

   […] leave is granted for the parties to photocopy documents produced on subpoena by Maurice Blackburn Lawyers. 

   The Solicitor has deposed that this Order was made at the request      of the Husband, in the Solicitor’s Affidavit of 11 August 2020 at paragraph 13.  Therefore, the copying of the medical records has already been considered and Ordered by another Judge.  Judge Stewart has had the conduct of this matter throughout this proceeding.  Her Honour did not consider that any further order was required in relation to the Orders that she made on 21 July 2020. In this context, the Court now expressly rejects the Husband’s allegation in his affidavit at paragraph 8 that the Solicitor has, “significantly interfered with the proper administration of justice” in this proceeding.

   e)Until the making of the Orders by Judge Stewart on 21 July 2020, the documents, erroneously copied, were held by the Wife’s lawyers and were not disseminated in any way.

   f)All of the documents produced pursuant to the Subpoenas are from the Husband’s personal injury lawyers.  The file produced was always available to the Husband for inspection before it was made the subject of the Subpoenas.  If the Husband elected not to inspect the file held by his own lawyers, he cannot now complain. 

   g)The Husband made no complaint about the use of the documents until 4 weeks prior the Final Hearing.  The Husband accepted the material annexed to the Wife’s Trial Affidavit and responded to it without objection.

   h)The Court finds that the Husband has suffered no prejudice by reason of the Breaches.

Orders Sought in Application in a Case

1. I now consider the orders sought by the Husband in the Application in a Case.  The orders sought by the Husband are grouped as follows:

   a)The Wife’s lawyers pay into a nominated bank account the Husband’s total costs for the proceeding calculated on an indemnity basis (referred to as the Retrospective Costs). This is in paragraphs 1, 2 and 3 of the Application in a Case.

   b)Orders in relation to an updated Family Report to be paid for by the Wife’s lawyers.  This application has already been dismissed by reason of the Order 12 of the Orders made on 21 July 2020.  This is in paragraph 4 of the Application in a Case.

   c)That the Wife’s lawyers pay to the Husband the total costs of concluding the proceeding on an indemnity basis and that the Husband be entitled to keep those costs (referred to as Prospective Costs) in paragraph 5 and 8 of the Application in a Case.

   d)The return of documents erroneously copied to the Registry within 7 days is in paragraph 6 of the Application in a Case.

   e)That the Wife’s lawyers and the Wife execute an undertaking to maintain confidentiality of the medical information obtained “unlawfully” in paragraph 7.

   f)Paragraphs 9 and 10 of the Application in a Case are incompetent, incomprehensible and are not within the Court’s jurisdiction.

Decision

1. In relation to the Retrospective Costs, there is no basis for a costs order for the proceeding in favour of the Husband, let alone, one assessed on an indemnity basis.  The Husband has advanced no evidence to justify the making of a costs order against the Wife’s lawyers.  This matter has proceeded without complaint by the Husband until 21 July 2020. 

2. Further, there is no evidence of the costs claimed.  Nor is there evidence of exceptional circumstances to justify indemnity costs as defined in the decision of the Full Court of the Family Court in Kohan & Kohan (1993) FLC 92-340 and subsequent cases. Further, the Full Court of the Family Court said in Davida & Davida (Costs) [2011] FamCAFC 61:

   It emerges from the discussion by the Full Court in D & D (Costs) that there still needs to be exceptional circumstances to justify an order for indemnity costs in this jurisdiction. 

   The Court, therefore, dismisses paragraphs 1, 2 and 3 of the Application in a Case. 

3. In relation to the application for a Family Report, for the reasons already given, this application is refused and paragraph 4 of the Application in a Case is dismissed.

4. In relation to the Prospective Costs, the Court repeats its comments in relation to the Retrospective Costs. The Court therefore dismisses paragraphs 5 and 8 of the Application in a Case.

5. An order for the return of the documents to the Registry is not necessary as the Court made Order 15 of the Orders on 21 July 2020 permitting the copying of all the subpoenaed documents. The Court therefore dismisses paragraph 6 of the Application in a Case.

6. In relation to the undertakings, an undertaking has been given by the Solicitor in the Solicitor’s Affidavit of 11 August 2020 at paragraphs 11 and 12.  The Court does not require any further undertakings.  The Court, therefore, dismisses paragraph 7 of the Application in the Case.

7. As paragraphs 9 and 10 are incompetent and incomprehensible and they are not within the Court’s jurisdiction, the Court therefore dismisses paragraphs 9 and 10 of the Application in the Case. 

8. The Court therefore dismisses the Application in a Case. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC

Associate:

Date: 26 August 2020