VENSON & VENSON
[2010] FamCA 501
•22 June 2010
FAMILY COURT OF AUSTRALIA
| VENSON & VENSON | [2010] FamCA 501 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Wife seeks a permanent stay of the husband’s substantive application to set aside the disputed child support agreement or in the alternative a temporary stay until he satisfies a costs order which has been previously made against him – Exercise of discretion – Stay of orders – Application by the husband that the child support agreement be stayed pending the determination of his substantive application to set that agreement aside FAMILY LAW – PRACTICE AND PROCEDURE – Application for extension of time to serve itemised bill of costs FAMILY LAW – COSTS – Security for costs |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth) |
| Fennessy v Gregorian (Security for Costs) [2008] FamCAFC 89 Gallo v Dawson (1990) 93 ALR 479 Hearne v Street (2008) 235 CLR 125 Knowles v Green (Security for Costs) [2010] FamCAFC 31 Luadaka v Luadaka (1998) FLC 92-830 Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 Marriage of Tormsen (1994) 18 Fam LR 232 Marriage of Vlug & Poulos (1997) 22 Fam LR 324 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 Williams v Spautz (1992) 174 CLR 509 |
| APPLICANT: | Mr Venson |
| RESPONDENT: | Ms Venson |
| FILE NUMBER: | SYF | 2376 | of | 2004 |
| DATE DELIVERED: | 22 June 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | Not Applicable |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd SC |
| SOLICITOR FOR THE APPLICANT: | Newnhams Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Brender |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
Orders
The following Applications are re-listed before Justice Austin at 9.30 am on Tuesday 22 June 2010.
(a) The Initiating Application filed by the husband on 27 November 2009;
(b) The Amended Response filed by the wife on 7 April 2010;
(c) The Amended Reply filed by the husband on 13 April 2010;
(d) The Application in a Case filed by the wife on 10 May 2010;
(e) The Application in a Case filed by the wife on 21 May 2010.
The applications of the wife for interim Orders 1 and 2, set out within the Amended Response filed on 7 April 2010, are dismissed.
The husband shall pay to the Registry Manager of the Newcastle Registry of the Family Court of Australia, within 21 days, the sum of $4,000 by way of security for costs of the hearing and determination of the husband’s Initiating Application filed on 27 November 2009 in suit number SYF 2376 of 2004.
In default of compliance with Order 3 hereof, the proceedings initiated by the husband’s Initiating Application filed on 27 November 2009 are stayed pending further order.
The application of the husband for Order 2, set out within the Amended Reply filed on 13 April 2010, is dismissed.
Subject to compliance with Rule 15.27(2), leave is granted to the parties to inspect and copy the documents produced by Harrisons Solicitors in response to the subpoena filed on 12 March 2010.
The time for service of the wife’s itemised costs account upon the husband in accordance with Rule 19.21(1), in reliance upon the orders made on 18 December 2009, is extended to 7 April 2010.
The wife’s need for compliance with Rule 19.21(2) in respect of the itemised costs account served pursuant to Order 7 hereof is dispensed with.
The time for service of any Notice Disputing Itemised Costs Account by the husband in accordance with Rule 19.23 is extended to 20 July 2010.
Costs are reserved for 28 days.
Any and all outstanding interim applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Venson & Venson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYF 2376 of 2004
| MR VENSON |
Applicant
And
| MS VENSON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 8 September 2009, orders were made dismissing the husband’s application to set aside a child support agreement entered into by the parties many years before on 24 November 2000. Reasons for those orders were published simultaneously. By subsequent judgment, published on 18 December 2009, the wife was awarded costs against the husband in respect of those proceedings.
The husband was not deterred by his failure. On 27 November 2009 the husband filed a fresh Application seeking relief. Again he seeks that the child support agreement of 24 November 2000, which was registered with the Child Support Agency on 20 June 2003, be set aside pursuant to s 136 of the Child Support (Assessment) Act 1989.
The husband’s application for that substantive relief is yet to be adjudicated. His fresh application has caused the proliferation of various interlocutory disputes between the parties, which now require resolution.
All outstanding applications were made returnable before the Court on 12 May 2010, at which time procedural directions were made for the determination of the interlocutory disputes. The Family Law Rules (“the Rules”) ordinarily require the determination of interim applications without cross examination (Rule 5.10(2)). The parties made no application for leave to cross examine one another and so orders were made for the parties to file written submissions in expectation that the interim applications would be determined on those submissions. All applications were adjourned pending interim determination in that manner.
Interim Disputes
The interim applications which require determination are as follows:
a)The wife’s application for a permanent, or alternatively temporary, stay of the husband’s substantive application (as set out within Orders 1 and 2 of the wife’s Amended Response filed on 7 April 2010);
b)In the alternative, the wife’s application for the husband to afford security for the costs of her defence of the husband’s substantive application (as set out within Orders 4 and 5 of the wife’s Amended Response filed on 7 April 2010);
c)The husband’s application to stay the operation of the subject child support agreement pending the hearing of his substantive application (as set out within Order 2 of the husband’s Amended Reply filed 13 April 2010);
d)The wife’s application for leave to inspect documents produced by Harrisons Law in response to a subpoena filed on 12 March 2010 (as set out within Order 1 of the wife’s Application in a Case filed on 10 May 2010);
e)The wife’s application for an extension of time within which to serve upon the husband her itemised bill of costs, in reliance upon the costs orders made on 18 December 2009 in the former proceedings (as set out within Order 1 of the wife’s Application in a Case filed on 21 May 2010).
Application for Stay of the Husband’s Application
The wife seeks that the husband’s substantive application to set aside the disputed child support agreement be permanently stayed, or in the alternative, stayed until he satisfies the costs order outstanding from the last proceedings.
In support of this application the wife relied upon her affidavits filed on 22 January 2010 and 1 February 2010.
The husband relied upon his affidavit filed on 3 March 2010 in rebuttal of the wife’s evidence.
The husband submits that the Court does not have power to grant a permanent stay of the proceedings. He concedes only the power to dismiss or strike out proceedings which are frivolous or vexatious, within s 118 of the Family Law Act (“the Act”), or those which are hopeless and doomed to fail.[1]
[1] Husband’s submissions page 2
The wife asserts that the Court does have such power and seeks a stay of the proceedings pursuant to s 118 of the Act, or alternatively, in reliance upon numerous of the Rules (being Rules 1.04, 1.06, 1.07, 1.09, 1.10, 1.12, 11.01, 11.02, and 11.04).[2]
[2] Wife’s submissions pars 26-27
This Court, as a superior court of record (s 21(2)), undoubtedly has an inherent power to stay or dismiss proceedings before it which are frivolous, vexatious, or an abuse of process (see Williams v Spautz (1992) 174 CLR 509 at 518-519), but there is considerable doubt about whether that inherent power can be implemented in a broader context than is presently enabled by s 118 of the Act and the Rules (see Marriage of Vlug & Poulos (1997) 22 Fam LR 324 at 344-347). The Court’s power is now very broadly drawn under the Act and Rules, such that the express statutory power probably extends to the margins of the inherent power.
For all practical purposes, there are probably no circumstances that would justify exercise of the power to stay proceedings beyond those capable of description as frivolous, vexatious, or an abuse of process. Even if there are, and even if the Court does not have express statutory or inherent power to permanently stay proceedings other than those which are frivolous, vexatious, or an abuse of process, the Court still has derivative power to do so. The Act (s 38(2)) provides that in so far as the Rules are insufficient, the Rules of the High Court apply in relation to matters of practice and procedure. Rule 8.07.2(a) of the High Court Rules 2004 provides that the Court may, without restriction, order a stay of proceedings in whole or in part.
Given that the Court has the necessary power to grant a stay of proceedings in extremely broad circumstances, the question becomes one of whether the power should be exercised in this instance as a matter of discretion.
The wife has cited a multitude of English and NSW common law authorities for the proposition that the prosecution of fresh proceedings should be restrained when the costs of failed former proceedings remain outstanding.[3] However, the wife implicitly recognises that such a restraint is an exercise of discretion on the individual facts of the case, and not an absolute right.[4]
[3] Wife’s submissions pars 29-38
[4] Wife’s submissions pars 32, 36
I am not satisfied that the fresh proceedings brought by the husband are frivolous or vexatious. The fresh substantive application of the husband is only necessitated by the wife’s refusal to permit him to amend the basis of his claim to set aside the child support agreement in the first set of proceedings,[5] which refusal found favour with the Court.[6] Had the wife consented to the husband’s former application to amend, or had the Court acceded to his application over the wife’s objection, the entire controversy would have been heard and determined in the last proceedings. The Court was disinclined to lay waste to the wife’s forensic strategy in the former proceedings, but the strategy of the wife in those proceedings cannot properly now be used as a basis for the preclusion of the husband’s right to litigate his genuine grievance in fresh proceedings.
[5] Judgment of 18 December 2009, par 50
[6] Judgment of 18 December 2009, pars 51-59
It follows that the current substantive application of the husband should not be stayed in reliance upon s 118 of the Act.
I therefore turn to Rule 11.04, which is wider than s 118 of the Act. The Rule is not confined to frivolous and vexatious proceedings. It extends to permit the Court to stay or dismiss an application which is an abuse of process. A similar power is found in Rule 10.12(c).
The wife has only expressly submitted that the husband’s substantive application is vexatious.[7] She has not overtly submitted that the application is an abuse of process, and no explanation is offered as to how the substantive proceedings should be construed as an abuse of process. It seems that the husband’s submission that the wife has never submitted that the fresh application is an abuse of process is correct.[8] None of the evidence or submissions necessitate, or even reasonably permit, a conclusion that the husband’s substantive application is an abuse of process. The husband has steadfastly long contended that the child support agreement should be set aside and he persists in his effort to prove his case for relief. Accordingly, Rule 11.04 does not apply.
[7] Wife’s submissions par 27
[8] Husband’s submissions page 2
Rule 11.01(3)(d) is broader still. It permits the Court to stay a case, in whole or in part, without apparent restriction. The Rules do not specify the circumstances in which that power may be exercised. It is akin to the power enjoyed by the Court derivatively under the High Court Rules, pursuant to s 38(2) of the Act. There is no submission made by the wife that would warrant the exercise of power by the Court under Rule 11.01(3)(d), but not Rule 11.04 or s 118 of the Act, and so the wife’s reliance upon Rule 11.01(3)(d) also fails.
The real gravamen of the wife’s complaint appears to be, not that the husband’s fresh application should be shut out altogether, but rather that he should not be permitted to litigate it until the costs order in her favour from the former proceedings is satisfied. That is the gist of the authorities which she has cited in her submissions.
It is difficult though to repose much weight in the complaint of the wife when she is, in large part, responsible for her own misfortune. The husband’s first application was dismissed on 8 September 2009. He filed his fresh application on 27 November 2009, and has sought to prosecute it ever since. The wife belatedly filed a costs application against the husband in respect of the first proceedings on 14 October 2009, which led to the controversy about her being granted an extension of time to make the application, followed by the adjudication of her costs application, determined by the judgment delivered on 18 December 2009. The wife was successful, but she then failed to serve her itemised bill of costs in a timely way, which necessitated her filing an Application in a Case on 21 May 2010. That application is determined later in these reasons.
The husband is entitled to both the opportunity, and reasonable time within which, to consider, respond to, and contest the wife’s quantification of her existent costs order. Had the wife complied with time frames prescribed by the Rules, the husband’s obligations to respond would have been triggered months ago. The husband’s desire to prosecute his substantive application ought not be frustrated by the delays caused or encountered by the wife in the pursuit of payment of her costs. That the wife would find that outcome surprising is not influential.[9] Accordingly, in the circumstances of this case, I am not persuaded that prosecution of the substantive application by the husband should be stayed either permanently or until ultimate payment of the wife’s costs from the first proceedings.
[9] Wife’s submissions par 23
Although the wife also professed reliance upon Rules 1.04, 1.06, 1.07, 1.09, and 1.10, they do not assist her case. The Rules in Part 1.2 are purposive only. The Rules in Part 1.3 do not broaden the Court’s power beyond that already discussed.
I do not understand the wife’s reliance upon Rules 1.12 and 11.02. Her submissions did not elaborate the manner of her reliance upon those Rules, and in the absence of her explanation and perceived relevance they play no part in this determination.
Application for Security for Costs
In the event that the Court declines her application for a permanent stay, the wife seeks orders that the husband provide security for the costs that she will incur in defending the husband’s substantive application, and that the husband’s application be stayed pending provision of that security.
As with the last application, the wife relied upon her affidavits filed on 22 January 2010 and 1 February 2010, and the husband relied upon his affidavit filed on 3 March 2010.
The Family Law Act envisages that the Court may make orders providing for security for costs (s 117(2)), and stipulates the criteria for which the Court must have regard in considering such applications (s 117(2A)). Rule 19.05 also sets out matters that the Court may take into account in determining an application for security for costs, which matters reflect the considerations earlier developed by the Full Court (see Luadaka v Luadaka (1998) FLC 92-830 at [53-63]; Fennessy v Gregorian (Security for Costs) [2008] FamCAFC 89 at [16-17]; Knowles v Green (Security for Costs) [2010] FamCAFC 31 at [26-27]).
I note both the wife’s submissions[10] and the husband’s submissions[11] addressing the familiar criteria. The following salient observations may be made about the factors that are determinative in the outcome of an application for security for costs.
[10] Wife’s submissions pars 40-43
[11] Husband’s submissions pages 6-7
In the course of the judgment delivered on 18 December 2009 it was found that the financial circumstances of the wife were more difficult than those of the husband.[12]
[12] Judgment 18 December 2009, pars 39, 42, 43
In these proceedings the wife adduces evidence that the child support arrears which have accrued under the disputed child support agreement stand at not less than $109,339.42,[13] but the husband submits that the arrears now stand in excess of $135,000.[14] Either way, it is a large amount. The wife also particularises her current financial circumstances.[15]
[13] Wife’s affidavit filed 22 January 2010, par 4, Annexure A
[14] Husband’s submissions page 7
[15] Wife’s affidavit filed 22 January 2010, Annexure B pars 9-11
The husband has also adduced evidence which particularises his current financial position. He receives an aged pension, from which child support payments are deducted, leaving him with a net amount of about $110 per week.[16] He also receives income from the UK equating to about AUD$500 per week.[17] The capital payments expected to be received by the husband’s current wife, referred to in the judgment delivered on 18 December 2009,[18] have not yet been received, and may not be.[19]
[16] Husband’s affidavit filed 3 March 2010, pars 2.4, 3.2
[17] Husband’s affidavit filed 3 March 2010, par 3.1
[18] Judgment 18 December 2009, pars 37-38
[19] Husband’s affidavit filed 3 March 2010, par 3.3
The financial circumstances of the wife are difficult and probably remain less comfortable than those of the husband. Nevertheless, the husband’s current financial position seems less secure than it formerly was. Any order for substantial security may well stifle his ability to prosecute his claim.
The husband has no obvious reason to be ebullient about the prospects of his success with the substantive application. On the other hand, the wife does not submit that his case is so hopeless as to warrant summary dismissal (Rule 10.12(d)).[20] The wife simply says that the husband’s prospects are low.[21]
[20] Wife’s submissions par 40(b)
[21] Wife’s submissions par 10
The wife’s costs from the former proceedings remain outstanding, but that is because she has not pursued them with the vigour that might have been expected. That issue has already been addressed in these reasons.
The wife has delayed her application for security for costs for several months. She did not seek security for costs when she initially filed her Response on 22 January 2010. It was only upon the filing of her Amended Response on 7 April 2010 that she sought security. The husband’s Application has been pending since 27 November 2009.
I accept that the husband is bona fide in pressing his claim.
The costs of contesting the substantive application from this point are not likely to be substantial. Although the former proceedings drifted interminably, that seems to have been because the litigation was interspersed with other litigation between the parties before the Supreme and Local Courts of NSW. The final hearing before this Court in August 2009 was allocated two days. That seems a reasonable estimate for the pending substantive application. The wife is unrepresented day-to-day, but secures the representation of counsel for court events. She prepares her own affidavits.
I am persuaded that, on balance, an order for security for costs is justified. However, the amount secured will not be sizeable. The itemised bill served by the wife upon the husband in relation to the former proceedings amounts to approximately $19,000,[22] and those proceedings lasted several years. Given that the duration of the prospective hearing is reasonably estimated at two days, and the wife will likely undertake her own preparation and only be represented at the hearing, security in the sum of $4,000 is appropriate. The wife acknowledges that the secured sum need not be large.[23]
[22] Husband’s submissions page 6; Wife’s submissions par 40(e)
[23] Wife’s submissions par 40(e)
The husband submitted that he was prepared to offer to the Court an undertaking that he would not deal with his equitable interest in a parcel of real property at N in Queensland pending determination of his substantive application.[24] Such an undertaking would be ineffectual. As recorded in the judgment delivered on 18 December 2009, the husband’s equitable interest in that parcel of real property has not been determined.[25] The husband cannot give a binding undertaking not to deal with property in which it is not determined that he holds either a legal or equitable interest.
[24] Husband’s submissions page 6
[25] Judgment of 18 December 2009, par 38
Application for Stay of the Child Support Agreement
The husband seeks that operation of the contested child support agreement be stayed pending the determination of his substantive application to set that agreement aside.
In support of this application the husband relied upon his affidavit filed on 3 March 2010, which affidavit was filed contemporaneously with his original Reply.
The wife sought leave to file and serve an affidavit in rebuttal. Leave was refused. It was conceded that the wife had been served with the husband’s Amended Reply and his affidavit on or about 15 April 2010, but in breach of Rule 9.08, the wife had failed to file and serve any affidavit in rebuttal at any point between the time of her service and the hearing before the Court on 12 May 2010. No explanation for that default was offered other than ignorance of the Rules. Given her representation by competent counsel at each court event I do not regard that as a persuasive reason to dispense with compliance with the Rules.
I accept as self-evidently correct that the wife will endure hardship if operation of the child support agreement is stayed pending determination of the husband’s application for the agreement to be set aside, even if she has not filed an affidavit saying so.
Operation of the child support agreement was stayed in the last set of contested proceedings between the parties,[26] but that order was made consensually. The wife now contests the stay sought by the husband.
[26] Order 5 made on 6 June 2005
Neither party addressed in their submissions the basis of the Court’s power to order a stay of operation of the child support agreement. The power to stay the operation or enforcement of an order or agreement is to be distinguished from the power to stay proceedings.
The substantive application of the husband to set aside the child support agreement is brought pursuant to the provisions of the Child Support (Assessment) Act (“the Assessment Act”), not the Family Law Act. It follows that the power to order a stay of operation of the child support agreement should be found within the Assessment Act.
It was common ground in the former proceedings that the Child Support Registrar is deemed to have accepted the subject child support agreement as a binding child support agreement consequent upon the amendments to the Assessment Act which took effect from 1 July 2008.[27] The Assessment Act provides that once a child support agreement requiring payment of periodic amounts, such as the subject agreement, is accepted by the Registrar it is deemed to be an order of the Court under Division 4 of Part 7 of the Assessment Act (s 95(2)). In those circumstances, the Assessment Act affords discretion to stay the order (s 141(1)(j)(ii), (n)). I conclude that the Court has power to stay operation of the child support agreement in this litigation if the circumstances so require.
[27] Judgment of 8 September 2009, par 53
The wife maintains that the child support agreement should not be stayed because of the financial hardship that would be occasioned to her through the suspension of deduction of child support payments from the husband’s income. She additionally submitted that the husband’s evidence about his financial circumstances is unreliable,[28] that his past record of compliant behaviour is poor,[29] that his prospects of ultimate success are poor,[30] and that his delay in seeking the stay is inadequately explained.[31]
[28] Wife’s submissions pars 44-48
[29] Wife’s submissions par 49
[30] Wife’s submissions par 50
[31] Wife’s submissions par 51
The husband contends that the child support agreement should be stayed because if it is enforced against him, for the recovery of accrued arrears, prior to the resolution of his substantive application he would be caused real prejudice through being unable to claw back the recovered arrears from the Child Support Agency or the wife should he be ultimately successful with his application to set aside the agreement. He submits that he has genuine prospects of success with the substantive application.[32]
[32] Husband’s submissions pages 7-8
The balance of convenience and avoidance of hardship rests with the wife. The Court expects to be able to hear the substantive dispute within a period of months. If the Child Support Agency has been unable to enforce payment of the arrears of child support as yet, the risk of that enforcement occurring within the next few months so as to preclude the husband’s claw back of funds should he be successful seems reasonably improbable. Conversely, the deprivation of child support payments for use by the wife in the day-to-day maintenance of the children will likely cause her more hardship than will be endured by the husband in continuing to make those payments. The application for a stay is dismissed.
Application for Leave to Inspect Documents Produced on Subpoena
The wife is desirous of inspecting documents produced in answer to a subpoena, for which no leave has apparently yet been granted.
In support of this application the wife relied upon her affidavit filed on 10 May 2010.
The subject subpoena was filed on 12 March 2010. It was directed to “Harrisons Solicitors on behalf of [D] Pty Ltd”.
The schedule set out within the subpoena required those solicitors to produce:
1.Your trust account records and all other documents or records which relate or refer to all payments received by [the husband] and/or [the wife] relating to the sale of [C Street, N] by [the wife] (“the matter”) together with all documents and records showing all disbursements or payments made of the monies so received, including bank account details.
2.All file notes and correspondence relating to or comprising your instructions in the matter. Copies of any agreement or correspondence prohibiting information regarding transfer of funds.
3.Copies of any conversation notes or correspondence received from [the husband] and/or [the wife] regarding the provision of information concerning transfer of funds in the matter, in particular documenting monies still outstanding and when future payments may be made.
4.Copies of any notes, contracts or agreements requested on behalf of [the husband] and/or [the wife] with regard to any confidentiality agreement or penalty regarding any financial transactions or other obligations concerning the sale of [C Street, N] and the parties referred to in those notes or discussions.
The subpoena was returnable before the Court on 23 March 2010. It was not answered by that date, but the Registrar made an order on 7 April 2010 extending the time for compliance with any unanswered subpoena until 13 April 2010. Documents in answer to the subject subpoena were produced to the Court on 12 April 2010.
No objection to production or access was raised by the party answering the subpoena. Nor has any objection been raised by the husband to the parties being granted access to the material produced on subpoena.[33]
[33] Husband’s submissions page 8
The only issue raised by the husband is as to the terms of the wife’s access to the material produced. He submits that there should be no photocopy access, and that the wife’s inspection of the material ought be undertaken in the presence of her counsel or Court staff.[34] I take that submission to be an application pursuant to Rule 15.31(1)(b), even though the husband did not make the application within the time required by Rule 15.30(4). Non-compliance with the time requirement is of no moment in this instance because no party has yet inspected or copied the documents produced.
[34] Husband’s submissions page 9
It is not to the point for the husband to assert that the wife has not explained any reason why she ought be able to photocopy the documents,[35] because liberty to photocopy the documents is the usual course (Rule 15.30(4)). It is for the husband to explain why photocopying should not be permitted.
[35] Husband’s submissions page 9
The husband’s fear about the wife disseminating the material is only conjecture. There is no evidence affording his worry a proper basis. The wife is obliged by the Rules not to disseminate the documents (Rule 15.27(2)), which principle reflects the common law (see Hearne v Street (2008) 235 CLR 125 at 131, 145, 157-162). Breach of that obligation potentially amounts to contempt of court (see Hearne v Street at 131, 145, 166-167).
The grant or refusal of permission to the wife for photocopy access to the documents will not aid in either the corroboration or rebuttal of prospective allegations by the husband that the wife has tampered with documents in the past. That allegation, if indeed it is to be pursued, is presently only a bald assertion.[36]
[36] Husband’s submissions page 9
The parties will each be permitted access to the documents produced by Harrisons Solicitors in accordance with the Rules and the usual inspection protocols employed at the Court. No satisfactory reason has been advanced as to why that should not occur.
Application for Extension of Time
The wife seeks an extension of time within which to serve upon the husband her itemised bill of costs pursuant to the costs orders made in her favour against the husband on 18 December 2009.
In support of this application the wife relied upon her affidavit filed on 21 May 2010.
The earlier proceedings in which the husband sought that the child support agreement be set aside were commenced by him on 2 February 2005, and were concluded by the orders as to costs made on 18 December 2009.
Rule 19.21 (or clause 6.22(1)(b) of Schedule 6) required the wife, as the party entitled to party/party costs from the husband, to serve an itemised costs account upon the husband within 28 days after the end of the case. Given that the case concluded with the orders made on 18 December 2009, the wife was required to serve her itemised costs account by 15 January 2010.
The evidence is that the wife served her itemised bill of costs upon the husband’s solicitor by email on 1 April 2010.[37] No issue is taken by the husband about his practical service in that manner, and I find that service was effected on that date (Rule 7.02(1)). In his written submissions the husband contended that service of the itemised costs account was not achieved until 7 April 2010,[38] but I prefer to accept the sworn evidence of the wife over a bare submission about the correct date of service.
[37] Wife’s affidavit filed 21 May 2010, pars 2, 45
[38] Husband’s submissions page 4
The Court has power to extend the time within which a party must comply with the Rules (Rule 1.14). The wife seeks that the Court exercise its discretion to extend the time for her compliance with Rule 19.21.
The parties are familiar with the authorities governing the exercise of such discretion, because they were cited in the prior proceedings between them when the time within which the wife was permitted to apply for a costs order against the husband was extended. The power to extend time is discretionary, so as to enable the court to do justice between the parties (Gallo v Dawson (1990) 93 ALR 479 at 480; Marriage of Tormsen (1994) 18 Fam LR 232 at 235-236), and the power will normally be exercised unless the non-compliance is contumacious, or the lapse of time is such that the other party has suffered irremediable prejudice (Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [50-58]; Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 at [16-17]).
To explain her delay between 15 January 2010 and 1 April 2010, the wife gives evidence of her ignorance of the time limit prescribed by the Rules,[39] her absence in Queensland over the Christmas and New Year period,[40] the unavailability of her former solicitor’s files,[41] the delay in procuring those files from former solicitors,[42] and the delay by the costs assessor in compiling the itemised bill of costs.[43] The wife’s contravention of the Rules cannot properly be regarded as contumacious in light of that evidence. I reject the husband’s submissions about the deficiencies of the wife’s affidavit evidence.[44] They are not compelling arguments.
[39] Wife’s affidavit filed 21 May 2010, pars 2
[40] Wife’s affidavit filed 21 May 2010, pars 3, 6
[41] Wife’s affidavit filed 21 May 2010, pars 3, 8, 10
[42] Wife’s affidavit filed 21 May 2010, pars 4, 12, 14
[43] Wife’s affidavit filed 21 May 2010, par 3
[44] Husband’s submissions pages 4-5
No evidence of prejudice, irremediable or otherwise, has been adduced by the husband. The husband submitted that he was prejudiced,[45] but none of the submissions carry any real weight. The wife’s delay has not caused the husband any inconvenience. He will simply now have to deal with the quantification of the wife’s itemised bill of costs several months later than he would otherwise have done.
[45] Husband’s submissions pages 5-6
In the circumstances, discretion will be exercised so as to extend the time for compliance by the wife with Rule 19.21(1). The extension of time must be granted to some certain date. For abundant caution I will specify the date as 7 April 2010, when the husband admits service of the bill of costs, rather than 1 April 2010, when the wife asserts service. Since the husband has been awaiting determination of the wife’s application for an extension of time within which to serve her bill of costs, the time for the husband to respond to that bill with a notice of objection will also now have to be extended.
The evidence demonstrates that the wife has still not served upon the husband a costs notice, as required by Rule 19.21(2) (or clause 6.22(2) of Schedule 6).[46] No application has been made by the wife for an extension of time within which to comply with that requirement. Nevertheless, compliance with that provision of the Rules is dispensed with (Rule 1.12). The husband is legally represented and neither he nor his lawyers are in need of the information contained within a costs notice in order to respond to the wife’s itemised bill of costs.
[46] Wife’s affidavit filed 21 May 2010, par 46
Costs
The question of costs arising out of the interim applications determined by these reasons is reserved for 28 days.
I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin
Associate:
Date: 22 June 2010
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