Ting and Fingal (No. 2)

[2013] FamCA 400

FAMILY COURT OF AUSTRALIA

TING & FINGAL (NO. 2) [2013] FamCA 400

FAMILY LAW – COSTS – Costs on adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Ting

RESPONDENT: Mr Fingal

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 130 of 2013

DATE DELIVERED: 15 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT: Borchard & Moore

Orders

1. That all outstanding applications are adjourned for mention at 9.00am on 7 May 2013.

2. That the respondent pay the applicant’s costs fixed in the sum of $13,100 within 14 days.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ting & Fingal (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 130 of 2013

Ms Ting

Applicant

And

Mr Fingal

Respondent

REASONS FOR JUDGMENT

1. This is an application to adjourn a matter listed specifically from earlier this year when the issues in dispute were clear.  The feature of this case was that the applicant was seeking spousal maintenance and, as such, the jurisdiction was very much in issue.  At that time the parties knew what it was that they had to establish;  and, therefore, I allocated today and tomorrow specifically for that issue to be determined.

2. There was a question about the respondent being represented by the solicitor then on the record.  Whilst it was not suggested to me that the solicitor’s position was untenable, it raised some doubts and there was a discussion about whether or not an application would be sought to remove her.  In the meantime the respondent has changed solicitors and in his diligent way, Mr Moore has set out, with his length of experience, the things that he considers need to be done.  There is a possibility that a further 10 witnesses may be called.

3. Normally, that would not be a basis for an adjournment, because all of these witnesses, presumably, were in existence back in January.  The difficulty I have in this case, is that the material I have read, leaves some doubts in my mind as to exactly what is the evidence that might establish the jurisdiction.  The respondent should be given an opportunity to prove the negative, even though the witnesses he is proposing to investigate may not assist at all.  On that basis justice needs to be seen to be done as well as done and I think it is important that I give the respondent that opportunity.

4. It will not come without a cost on the basis that all of this should have been done weeks ago.  The onus falls on the litigant, not the lawyer.  Having regard to what Mr Moore has set out in his affidavit, I consider that the respondent should have been prepared much better than he has been.  The costs of today have been thrown away, but so have tomorrow’s.  I would not expect counsel, who has set aside two days, to necessarily pick up a brief of the same magnitude for tomorrow and on that basis, I consider that he is entitled to his out of pockets, bearing in mind that he will, no doubt, send an invoice to his client.

5. The solicitor came along today prepared to instruct counsel to run the matter and on that basis I consider his costs are appropriate as well.  There is no suggestion here that these scales should apply, nor could it realistically.  There are two $1200 conference fees claimed.  Whilst those instructions will not necessarily be thrown away there will now have to be another conference, having regard to the fact that there is a potential for a further 10 witnesses.  I see no reason why the applicant should be out of pocket at all in relation to these proceedings, bearing in mind that this adjournment has been entirely caused by the respondent. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 April 2013.

Associate: 

Date:  26 April 2013