W & S
[2005] FamCA 568
•24 June 2005
[2005] FamCA 568
FAMILY LAW ACT 1975
FAMILY COURT OF AUSTRALIA
AT MELBOURNE NO. MLF 3139 of 2002
IN THE MATTER OF:
W (Father)
and
S (Mother)
JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST
Date of Hearing: 17 MARCH 2005
Date of Judgment: 24 JUNE 2005
Appearances:
Mr Peter G Renwick, solicitor, of Messrs Kennedy Guy, Solicitors, for the Applicant (father)
On 1 September 2004 Mr W, (“the father”), caused to be filed a Form 18 Contravention Application against Ms S (“the mother”) returnable on 16 September 2004. The application was supported by an affidavit deposed to by the father. Earlier however, on 13 August 2004, the mother, (as Applicant) had filed a Form 18 Contravention Application against the father returnable on 30 August 2004. On that day, with both parties being represented, it was ordered (inter alia) by Judicial Registrar Ramsden that her application be adjourned to the Judicial Duty List on 13 September 2004 and that each party’s costs of the day be reserved. However, and for reasons which I shall shortly outline, the father’s costs were fixed in the sum of $715.
On 13 September 2004, with both parties again being represented by counsel, it was ordered by consent, inter alia, that the parties have leave to withdraw their respective applications filed 13 August 2004 and 1 September 2004, and that the return date of the father’s application on 16 September 2004 be otherwise vacated. Orders were also made by consent varying certain paragraphs of the substantive orders made on 7 June 2004 for the father’s contact with his daughter, K who was born in June 2001. The actual Minutes were signed by the parties.
The draft Minutes of Orders prepared by Judicial Registrar Ramsden included the following:
“IT IS DIRECTED
(2)That the Court give speedy and sympathetic consideration to making an ex gratia payment to the Father for his Legal costs of the day for the 30th August 2004 fixed in the sum of $715.
[Later]
IT IS NOTED
(5)That the Solicitors for the Mother contend that the Court did not forward to them sealed copy documents in relation to the Application for Contravention filed on the 13th August 2004, so that they were unaware and not instructed to appear on the return date and that the Court accepts as a matter of probability their explanation for failing to be in a position to proceed on the first return date.”
That Direction and Notation, for obvious reasons, were not included in the sealed copy of the orders made that day.
Accordingly, it is clear that through no fault of the mother, or her practitioners they were unaware of the actual return date of her application fixed by the Court for hearing on 30 August 2004.
In the course of his submissions on 17 March 2005, Mr Renwick informed me that Ms Sevdalis of counsel had been briefed to appear for the father that day which was mentioned before the Judicial Registrar at the calling of the list. There was no appearance by or on behalf of the mother as a result of which it was stood down and Mr Renwick made enquiries from the mother’s solicitor. It was then appreciated that sealed copies of the court documents had not been returned to them.
An explanation for these unfortunate events was also provided by the mother’s solicitors, Yarra Legal in a letter of 1 September 2004 directed to the Manager of the Family Court (Melbourne Registry). Their unchallenged explanation is that on 10 August 2004 they forwarded the mother’s application, together with her affidavit to the court for filing. On 30 August 2004, the mother’s solicitor, perchance was attending court on an unrelated matter and was advised by the father’s solicitor that the Contravention Application brought by their client was listed for hearing before the Judicial Registrar. Their office had not received from the court sealed copies of the application or supporting affidavit, nor details of the return date. The father’s solicitor advised the mother’s solicitor that his office had in fact received sealed copies of the documents by post. There was no covering letter.
It was in those circumstances, that the solicitor for the mother then telephoned her office and requested her assistant attend court with their file. A review of the file confirmed that no documents had been returned to them. Accordingly, the mother’s application was unable to proceed further as she was unaware of the fixture. The father was present at Court however, represented by counsel and ready to proceed when the matter was called on. Given the situation, the mother’s application was adjourned to 13 September 2004.
I am requested to consider whether or not an order for costs in favour of the father should be made pursuant to the provisions of s 10(3) of the Federal Proceedings (Costs) Act (1981) (“the Act”). Section 10 of the Act is headed Costs certificates – incomplete proceedings. Sub-section (3) provides as follows:
“(3)Subject to this Act, where:
(a)the hearing of any proceeding in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and a new hearing are not attributable to the neglect, default or improper act of any party to the proceedings,
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.”
This provision is aimed at providing some reimbursement to a litigant by the Commonwealth in appropriate circumstances in Federal proceedings. The section provides for the Court, in the exercise of its discretion to grant a certificate to a party in respect of proceedings which have been “discontinued” through no “neglect, default or improper act” of any party to those proceedings and in which a new hearing has been ordered. There are a number of conflicting decisions concerning the interpretation of s 10(3) of the Act which have been of assistance to me.
In Lindner v Lindner (1985) FLC 91-638, Purdy J determined that a hearing had “commenced” before him notwithstanding that when the matter was called on for hearing, with both parties being represented, his Honour addressed only the issue of priority between that matter and another listed for hearing and then adjourned the application as it could not be heard and determined within the days allocated. His Honour was of the view that:
“The enactment is obviously designed to enable litigants to recoup costs through no fault of their own and which would otherwise be thrown away. This being so, I feel the Court should be loathe to adopt a construction which would defeat this purpose.
Hence, I feel it right to conclude that a case has commenced to a state capable of discontinuance when counsel have announced their appearance on the day notified to the parties unequivocally as a date for hearing”. (p. 77,601).
His Honour made it clear that he did not call the proceedings on for trial, but only for mention. He was of the view that it was then before the Court and became subject to the court’s control and direction, relying on Halsbury 4th ed. vol. 37 at p. 509, namely:
“An action or other proceeding for trial or hearing is listed in the daily cause list before a specified judge or court. When an action is called on for trial, it is treated as having begun for it is then before the court and then becomes subject to the court’s control and directions”.
The learned authors in Butterworths Australian Family Law Vol. 3 at p. 34,958 submitted that his Honour’s judgment indicated that the “… alleged hearing had been mainly about what could be described as administrative aspects”, in which circumstances it could not be said that the trial had commenced in any real sense. It was submitted that the circumstances in Lindner’s case were not what was contemplated by s 10(3) of the Act, particularly in an environment where the disbursement of public funds was “jealously guarded”.
In Redshaw v Redshaw (1989) FLC 92-053, the contested proceedings were unable to proceed on the date fixed for hearing as the judge listed to sit in the registry became ill and there was no other judge available to hear the matter. The parties subsequently applied for the grant of a costs certificate before Mullane J who considered Purdy J’s judgment in Lindner. He said, that in contrast to the proceedings before him, there was no appearance on the day fixed for the hearing, there being no judge to appear before, concluding that there was nothing which “might constitute a commencement of the hearing” (p 77,601) in terms of the dicta expressed by his Honour.
His Honour preferred the reasoning of Muirhead J in Morris & Anor v Maroudas & Anor (1986) 66 ALR 699 in finding that the noun, “discontinuance”, necessarily required that there must have been a commencement of the hearing. In that case, the respondents to the application did not receive a letter notifying them of the hearing and only became aware of it shortly prior to the date of trial. Accordingly, the respondents applied for an adjournment on the day of the hearing. The adjournment was granted. In those circumstances, the applicants applied for a costs certificate pursuant to s 10(3) of the Act. In the course of his judgment, Muirhead J (at p 700) had this to say:
“… The word ‘discontinuance’ has a well established meaning. It envisages the cessation of something that was on foot.
[Later]
The adjournment I granted was not a discontinuance of the hearing of the application. The hearing had not commenced. Nor did I order a ‘new hearing’ as a hearing had neither been conducted nor initiated. I simply postponed the hearing to a later date.
In my opinion sub-sec. (3), as is the case with sub-sec. (2), seeks to grant relief to litigants whose liability for costs is increased by reason of the fact that a hearing on foot is aborted by circumstances not contributed to by fault or neglect of any party to the proceedings … .
[Later]
Finally I comment that had the legislature intended to cover adjournments it would surely have inserted the words, ‘or adjourned’, or ‘adjournment’ after the words, ‘discontinued’ and ‘discontinuance’ respectively in sub-sec. 10(3).
To grant a certificate in the present circumstances would be to place an interpretation on the sub-section which would not only have wide ramifications but which would unduly strain the wording of the sub-section in a manner contrary to the apparent legislative intent.”
In Redshaw’s case (supra), Mullane J also declined to follow Coulson v Gosford Meats Pty Ltd (1985) 7 FCR 106 where an application of the parties had been fixed for hearing, but had not been included in the Court’s list. Following enquiries, it was placed into a list for directions on a later date and Gray J, when considering whether or not there had been a “discontinuance” pursuant to s 10(3) of the Act said:
“The first question which arises is whether the hearing can properly be said to have been ‘discontinued’, within the meaning of the section. Although, in a sense, the hearing had not actually begun, it had been specially fixed for a particular date, time and place, and it did not proceed at the appointed time, on the appointed date, at that place, or at all. In those circumstances I have no hesitation in holding that the hearing was discontinued, within the meaning of that word as used in sec. 10(3)”.
In the result, Mullane J declined to make an order for a costs certificate, finding, and properly in my view, that a “hearing in the matter did not commence”. He went on to comment that it was not necessary for him to consider whether an appearance on an adjournment application or an appearance where priorities are determined constituted a situation where it could be said that a hearing had been “discontinued”.
In Re. Palmdale Insurance Ltd & Ors. (1994) 122 FLR 15, applications were filed on 8 September 1994 and on 16 September 1994 the proceedings were adjourned for hearing on 30 September 1994. On that day, with the applicant present and ready to proceed it was learned that there was no judge available to hear the matter as the judge, who had been expected to be available had been delayed elsewhere. Further, that the Chief Justice had earlier reviewed the files for that day and determined that no matter required urgent attention. The unavailability of the judge was not made known to the Listings Clerk in sufficient time to notify the practitioners. In the course of his judgment, Higgins J preferred the reasoning of Gray, J in Coulson v Gosford Meats and Purdy J in Lindner’s case. He did not follow Morris v Maroudas or Redshaw, but had this to say:
“20.Further, although ‘discontinuance’ has an established meaning in relation to an action, it by no means follows that it carries the same sense of interruption and finality when used in relation to a hearing. The general meaning of the word includes an ‘intermission’ or ‘a (temporary) ceasing to be in place’: The Shorter Oxford English Dictionary …”
[Later]
24.Coulson and Lindner certainly support the view that only a listing of a matter for hearing is required where the parties attend expecting the matter to proceed in order for there to be a hearing which is capable of discontinuance. If the only proposition dealt with is a successful application for adjournment, the adjournment to a further date for hearing can be regarded as the ordering of a ‘new hearing’ following the discontinuance of the hearing which otherwise would, but for the adjournment, have proceeded. It does not matter if the date for the new hearing remains to be fixed.
25.It seems to me that the view expressed by Gray J in Coulson v Gosford Meats Pty Ltd is to be preferred. Section 10(3) is intended to provide compensation to a party deprived of a hearing and put to the expense of the new hearing due not to the default of any party but the failure of the court system or other adventitious cause whereby a hearing has to be aborted and recommenced. That abortion may be at the very outset of the hearing or part way through. The explanatory memorandum circulated prior to the passage of the FP(C) Act reveals that the purpose of s 10(3) was to empower a court to issue a certificate under the Act where proceedings are rendered abortive or discontinued through no fault of any party. That intent seems consistent with the approach taken by Gray J”.
In Perpetual Trustee Company (Canberra) Limited and Ors. v Robert Lewis as Delegate for The Commissioner for the Australian Capital Territory Revenue (1996) ACTSC 19, the proceedings were listed before Miles CJ and notice given to the parties in the ordinary way for a hearing on 5 October 1994. The application before the Court had no priority and awaited its turn on the day. In the result, it did not commence and was treated as if “not reached and stood over” until 7 October 1994. The hearing had been commenced on 5 October 1994 only in the sense that the matter had been called on. The priority of other matters was such that the hearing could not proceed further that day and “was in that sense discontinued”. It was not part-heard by his Honour and could have been heard on the adjourned day by any judge.
In the course of his judgment, Miles CJ referred to and applied Re: Palmdale Insurance confirming that, in circumstance where a hearing was listed for a particular date and a judge was unavailable to hear it, it was “discontinued” within the meaning of s 10(3) of the Act, relying upon what Higgins J had to say, namely that the section was:
“… intended to provide compensation to a party deprived of a hearing and put to the expense of a new hearing due not to the default of any party but the failure of the court system or other adventitious cause whereby a hearing has to be aborted and recommenced. That abortion may be at the very outset of the hearing or partway through”.
In the circumstances, Miles CJ granted the applicants a certificate in respect of the proceedings limited to the costs thrown away by reason of the attendance by counsel for the hearing listed on 5 October 1994.
In Furnari v Furnari (1998) FamCA 171, the husband, in respect of his appeal before the Full Court sought a certificate pursuant to the provisions of s 10(3) of the Act on the basis that the appeal had been discontinued through no “neglect, default or improper act of any party” to the proceedings and was a matter in which a new hearing had been ordered. In support of his submission, the husband argued that his decision to abandon the appeal was a pragmatic one, brought about in substantial part by the passage of time between the original decision appealed from and the hearing of the appeal. In the course of their judgment, Finn, Kay and May JJ expressed the view that s 10(3) of the Act had no application to such a circumstance and was only available:
“… in cases where a matter begins but the hearing is aborted due to matters beyond a party’s control resulting in a re-hearing being required. The abandonment by the husband of his appeal because events overtook proceedings is not covered by s 10”. (par 12) (my emphasis).
In Foody v Horewood & Ors. (2000) FCA 37, Finklestein J dealt with a situation where an application for orders pursuant to s 260 and s 461 of the Corporations Law was due to be heard shortly after the High Court handed down its decision in Re. Wakim; Ex parte McNally (1999) 163 ALR 270. It was as a result of that decision that the Federal Court no longer had jurisdiction to entertain the particular application which was accordingly adjourned for a date to be fixed so as to enable its transfer to the Supreme Court of Victoria in accordance with legislation that the former Attorney-General for that State had announced would be passed. In those circumstances, each party had incurred considerable costs in preparing the case for trial and sought an order pursuant to s 10 of the Act. The parties argued that the proceedings had been “rendered abortive” within the meaning of s 10(2) of the Act as his Honour, and every other judge of the Federal Court were “unable to continue with, or give judgment in” the proceedings. It was his Honour’s view that, despite the unfortunate result in his refusal to grant the certificates sought by the parties, that:
“7.Prima facie, a proceeding is only ‘rendered abortive’ or is ‘discontinued’ within the meaning of s 10 if, for a reason that is usually beyond the control of the parties, the proceeding is terminated before judgment. The proceeding must be rendered abortive or discontinued in consequence of the occurrence or non-occurrence, as the case requires, of one of the events specified in sub-sections (2) or (3). The section assumes that in the absence of such circumstances the trial would have continued uninterrupted. In other words the assumption that underlines sub-sections (2) and (3) is that an aborted or discontinued proceeding is one which is temporarily interrupted and when the cause for the interruption has been removed, the proceeding can be taken to judgment. Obviously, this is not such a case”.
Finally, in Official Trustee in Bankruptcy, Re Forest v Forest (2000) FCA 907, Kiefel J dealt with a situation where the Official Trustee in Bankruptcy applied to the Court for the issue of summonses for the examination of the bankrupts and their children pursuant to the provisions of s 81 of the Bankruptcy Act (1966) (Cth). Following their issue, the examinations were set down for hearing to commence on 13 March 2000. However, when the trustee’s legal representatives attended Court on that day, they were informed that the Deputy District Registrar was unable to hear the matter due to illness and the examinations were adjourned to a date to be fixed. The Official Trustee sought an order for costs pursuant to s 10(3) of the Act seeking costs thrown away by the adjournment. In that case, her Honour, in agreeing with Muirhead J in Morris v Maroudas said:
“6.I respectfully agree with his Honour. The word ‘discontinuance’ has a well-established meaning with respect to court proceedings. It conveys something having commenced and then ceasing prior to its conclusion. As the title to the section notes, the proceedings are ‘incomplete’. That is not the same as the adjournment of proceedings, which may be stood over prior to or after commencement. An important practical distinction between the two is that discontinued proceedings are likely to involve the incursion of costs which are entirely wasted, because the proceedings have to be started again afresh. The additional circumstance to which the section refers is that those costs are not able to be recovered against the other party, for the reason that the discontinuance occurred without either of the parties default. There may be many reasons for an adjournment, but it is not so likely, even where no party is at fault, that substantial costs will be entirely duplicated. In the present case I would not have thought that to be the situation. To hold that the section applies to adjournment is, in my respectful view, to give it an unwarranted extension.” (my emphasis)
CONCLUSION
It is plain that the father in these proceedings had received the mother’s application and notification of the hearing date. He had gone to the expense of briefing counsel to appear on his behalf on 30 August 2004 in the Judicial Duty List. He was ready to proceed. However, through no fault of either of the parties or their practitioners, the mother was unaware of the date and time fixed for the hearing of her application. The fault lay with the Court and was recognised as such through the notation made by the Judicial Registrar to the draft order which appears on the court file.
It was happenstance that the solicitor for the mother was at court that day which resulted, ultimately, in the application being adjourned to 13 September 2004. But for that fortuitous event, it would have been open to Ms Sevdalis to proceed to have the application heard and determined. However, in the result, save that the application was mentioned and stood down before the Judicial Registrar, there was no commencement of the proceedings in the plain meaning of the term.
There have been a number of decisions of this court, the Federal Court and other courts at first instance dealing with s 10(3) of the Act decided within their own particular circumstances. The approach has varied, notwithstanding that the facts underpinning each decision bear modest dissimilitude. However, in the result, it is the language of the Act itself that will govern the success or otherwise of an application pursuant to s 10(3) of the Act.
I agree with Muirhead J in Morris v Maroudas that the noun, “discontinuance” (s 10(3)(b)) has a well established meaning, envisaging “the cessation of something that was on foot”. (See also Reeves v Reeves (2002) FamCA 658 per Carter J). It has its own origin derived from late middle English, in the sense “interrupt, disrupt” (Oxford Dictionary of English). The same analysis is equally, and for obvious reasons, applicable to the adjective “discontinued” (s 10(3)(a)). It conveys something having “commenced and then ceasing prior to its conclusion” (per Kiefel J in Forest’s case). It is plain to me that before an event can be discontinued it must be underway, commenced or set in motion. Both s 10(2) (incomplete proceedings) and s 10(3) (discontinued proceedings) provide specific financial relief to litigants who suffer liability for costs in respect of proceedings that are extant, or on foot and which are “rendered abortive”, or “discontinued”, that is, unable to be completed.
In my view, and with due respect to what Purdy J had to say in Lindner, a hearing cannot be said to have commenced in circumstances that merely addressed the issue of priority. The mere announcement by counsel of their appearance on the day notified for trial is insufficient to conclude that, for the purpose of s 10(3) of the Act, the proceedings had commenced in the sense intended by statute. I further agree with Muirhead J in Morris v Maroudas that it would place an interpretation upon the sub-section that would have wide ramifications and place undue strain upon the wording of the sub-section in a manner contrary to its legislative intent. For the same reason, I am in disagreement with the approach of Higgins J in Re Palmdale Insurance.
Doubtless it is that the enactment is one clearly directed to enable litigants to recoup costs thrown away through no fault of their own. It is further clear that the father incurred legal costs to defend the application and through counsel, was ready to proceed on the due date. However, and notwithstanding any sympathy one might have for him in the circumstances, it is plain to me that the hearing had not commenced to sensibly find within the meaning of s 10(3) of the Act that it had been discontinued. I prefer the reasoning advanced in Redshaw, Morris v Maroudas and in Forest’s case.
The terms of the legislation are clear. The dominant purpose in its interpretation and application is monetary relief to litigants against costs inevitably incurred when a hearing is discontinued in circumstances not attributable to the “neglect default or improper act” of any party to the proceedings. It is designed to mitigate hardship to clients that would otherwise follow from the discontinuance of the proceedings. It is also, in my view, proper to take into account the protection of public funds, given the high cost of litigation and to ensure that funds are disbursed only in circumstances where it is justified within the meaning of the statutory provision.
The current pressure on court administration to address delays in the hearing and determination of cases is such that defended lists are designed in a number of courts with a primary listing and reserve cases, all of which are prepared and ready for trial. In addition, a primary listing, for example, may be fixed for two days with another listed to commence on the third day. If the view taken in Lindner’s case, Re Palmdale Insurance and Perpetual Trustee Company v Lewis were to prevail, for example, it would be open for practitioners in cases not reached in circumstances I have described, including reserve cases, to apply for a costs certificate pursuant to the Act relying upon such authority. This would place an intolerable burden upon public funds required to mitigate hardship to litigants that meet the terms, purpose and intent of the statute. In my view, it may also be open to abuse.
The provision of a certificate pursuant to the Act is a benefit provided by the statute, but on conditions and in circumstances whereby a hearing has been “discontinued”. It is plain that, for such an event to occur, it must have commenced, in my view, in a real and litigious sense, and not just by way of mention by reason of a prior supervening event or discussion arising from judicial availability. I agree with Kiefel J that the word “discontinuance” does indeed have a “well established meaning”, namely, that it “conveys something having commenced and then ceasing prior to its conclusion”.
In the circumstances, I do not propose to grant the certificate sought and the father will be required to bear his own costs thrown away and fixed by the Judicial Registrar.
I certify that the preceding 32 numbered
paragraphs are a true copy of the
reasons for judgment herein of
the Honourable Justice Guest.
Associate to Guest J
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