W & S - [2005] FamCA 568

[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 30^th 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 13^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading W & S

Details

AGLC: W & S [2005] FamCA 568
Case: [2005] FamCA 568
Decision Date: 24 June 2005

CaseChat Overview and Summary

This matter concerned an application by the mother for costs thrown away due to an adjournment of proceedings. The father had attended court, prepared to proceed, having received notice of the hearing date. However, the mother was unaware of the scheduled date and time, with the fault for this oversight lying with the Court itself. The proceedings were ultimately adjourned to a later date.

The central legal issue before the Court was whether the costs incurred by the father due to the adjournment could be recovered under a specific provision of the relevant Act, which applied to "discontinued" proceedings. This required the Court to consider the meaning of "discontinuance" in the context of court proceedings and to distinguish it from an adjournment.

Guest J, referencing the decision in *Official Trustee in Bankruptcy, Re Forest v Forest*, held that the term "discontinuance" has a well-established meaning referring to proceedings that have commenced and then ceased before conclusion. This is distinct from an adjournment, which may occur before or after commencement. His Honour explained that discontinued proceedings typically involve costs that are entirely wasted and irrecoverable from the other party due to the need to recommence the action. In contrast, while adjournments can incur costs, it is less likely that substantial costs will be entirely duplicated, especially when no party is at fault. His Honour found that the present situation, where the proceedings were merely mentioned and stood down, did not constitute a discontinuance in the plain meaning of the term.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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) 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.

Ratio Decidendi

Legal Principle Established

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