(WA) INC and H
[2004] FCWA 152
•22 NOVEMBER 2004
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
| LOCATION: | PERTH |
| CITATION: | AUSTRALIAN MEDICAL ASSOCIATION |
(WA) INC and H [2004] FCWA 152
| CORAM | : PENNY J | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
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| BETWEEN | : AUSTRALIAN MEDICAL ASSOCIATION |
(WA) INC
Applicant
AND
H
Respondent
Catchwords:
Practice and procedure - inherent jurisdiction of court to set aside orders - application to vary orders pursuant to Rule 1.11 - application dismissed
Legislation:
Family Law Act 1975 - s 117
Family Court Rules - r 1.11
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr R Hooker |
| Respondent | : | |
| Mr D Garnsworthy |
Solicitors:
| Applicant | : | Deacons |
| Respondent | : | Clairs Keeley |
Case(s) referred to in judgment(s):
Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) PTY
Ltd (1993) 117 ALR 253
DJL v The Central Authority [2000] HCA 17
Lewandowski and Ors v Lovell (unreported FCt SCt WA; library No
960310, 14 June 1996).
Stowe v Stowe (unreported FCt SCt of WA; library No 950556, 16
October 1995)
1 The matter for determination by me is the Form 2 application filed by the Australian Medical Association Western Australia Incorporated (hereinafter referred to as the “AMA”) on 28 June 2004, to recover indemnity costs, from the respondent, Mr H, resulting from compliance with a subpoena issued by the Family Court of Western Australia on 29 August 2002. Mr H opposes the application.
History and Background
2 Proceedings between the husband and wife in relation to property settlement were instituted in January 2002. The wife, is a past President of the AMA and also involved in other committees associated with that body. As a result, the husband issued a subpoena to the AMA.
3 The subpoena was directed to the “Proper Officer”, AMA and was returnable before the Court of Petty Sessions on 23 September 2002. The subpoena was prepared and filed by the husband’s then solicitors Messrs Butlers.
4 The subpoena required the AMA to produce the following
documents:
“All files, documents, forms, memoranda, notes, records of
interviews, correspondence and other documents relating to:1. R C
2. R C-H
3. R H
4. R C Pty Ltd (CAN 099 586 071)
5. C Family Trust
6. [Suburb] Medical Practice
7. G R H
For the period from 1 January 2001 to date.”
5 On 16 September 2002, solicitors for the AMA wrote a letter to the husband’s solicitors, seeking that they “redefine” the extent of the subpoena to prevent the incurring of “unnecessary costs”. The husband’s solicitors did not respond. A follow up letter was sent on 18 September, confirming that if the AMA received no response, the husband’s solicitors would be required to prepare for the hearing in relation to the return of the subpoena on 23 September 2002.
6 The husband’s solicitors replied in a facsimile on 18 September asking the AMA to “provide us with a list of all books, documents and things the AMA has in its possession, custody or control in compliance with item 10 of the subpoena and advise us on what legal basis you believe we should redefine the scope of the subpoena”.
7 The AMA sent a further facsimile to the husband’s solicitors stating as there was no agreement and there had been no refinement of the subpoena the matter remained listed for hearing.
8 On 23 September 2002, the AMA filed an interlocutory application seeking orders that the subpoena be set aside and the applicant husband pay the costs of the AMA on an indemnity basis, or alternatively to be taxed in any event. The AMA submitted that the subpoena was oppressive, because as drafted, it would effect numerous third parties and would require extensive work from administrative staff to sift through the numerous documents to establish whether or not they fell within the scope of the subpoena.
9 At the hearing, orders were made that the husband and the wife give each other supplementary discovery of documents within their possession relating to the matters in issue. The costs in relation to the AMA complying with the subpoena were reserved and proceedings were adjourned to 13 November. At this hearing, further orders were made regarding inspection of the discovered documents and the solicitors for the AMA were to provide a schedule of their costs in relation to the subpoena.
10 On 19 December 2002, orders were made by consent that the solicitors for the AMA provide to the husband’s solicitors all information reasonably required by them in relation to the costs claimed by the AMA in complying with the subpoena on or before 13 January 2003. The issue of costs was again adjourned to 17 February 2003.
11 On 10 February the husband’s solicitors, Messrs Butlers ceased to act for the husband. It was subsequently decided that the issue of the AMA’s costs of complying with the subpoena be adjourned for determination by the Trial Judge.
12 At trial, agreement was reached between the parties as to their competing claims for property settlement and the Trial Judge made consent orders. As the issue of costs between the AMA and the husband was a separate issue, it was referred back to the Court of Petty Sessions for determination. By that time the AMA’s costs were said to be in excess of $55,000.
13 The AMA’s costs application was heard by Mr Fleming SM on 8 September 2003 and on 2 December 2003 he made the following orders:
“1. The husband shall pay the costs reasonably incurred and expenses associated with compliance with the subpoena to the AMA filed 29 August 2002, such costs to include any legal costs associated with the hearing of this application which would include all Court appearances up to the delivery of this reserved decision.
2. In the event that the above costs cannot be agreed between the parties then the costs order is to be the subject of taxation by an officer of the Court.”
14 In his reasons, Mr Fleming found that the husband was within his rights to file the subpoena directed to the AMA, but that some form of costs order should be made. He then considered what type of costs orders he could make. These were:
• a costs order restricted to a certain period because of the husband’s solicitors actions in reducing the extent of the subpoena; • a costs order made generally allowing the taxing officer to determine what was reasonably incurred given the circumstances of the case; or • an order for a lump sum for compliance with the subpoena. 15 The AMA sought costs on an indemnity basis. Mr Fleming refused to make this order. He determined the taxing officer was the appropriate person to calculate the reasonable costs of the AMA in complying with the subpoena, using the scale as set out in Schedule 3 to the Family Court Rules.
This application
16 The AMA subsequently filed a fresh application seeking:
1)
the charges permitted by the Third schedule to the Family Law Rules 2004 do not apply in relation to the costs between the AMA and its lawyers; and
2)
a reasonable sum for work property performed in compliance with the Subpoena should be allowed by the Registrar
Alternatively,
3) The Family Law Rules be dispensed with, pursuant to
R1.12
Alternatively,
4)
such orders as are just, pursuant to R1.09 so as to enable the AMA to be properly and fairly reimbursed for its expense incurred in complying with the subpoena
17 It has been submitted by the husband that the AMA’s application is incompetent because it seeks to recall, reconsider or review a final judgment.
18 The AMA disputes the decision of Mr Fleming to refuse their application for indemnity costs was a final judgment in regards to costs. They provided no authority in relation to this submission. In the alternative they submitted, if the Court found that final orders had been made, then the present application is not precluded by the earlier orders of Mr Fleming. They argue that Chapter 1 of the Family Court Rules ("Rules"), dealing with the Court’s general powers apply in all cases and override all other provisions in the Rules.
19 R 1.11 states “The Court may set aside or vary an order made in the exercise of a power under these Rules”. The AMA submits that they responded to and obeyed the obligations under the coercive powers of the court’s procedures and from an early stage in its compliance sought orders that the applicant pay its costs. As the main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case, this gives the Court power to make orders, which have as their overriding concern, fairness and equity to the subpoenaed party. Thus, they seek that Court apply an interpretation to the Rules that allows it to set aside the orders of Mr Fleming.
The law
20 In my view, the orders made by the Court of Petty Session are final, in that the orders were extracted and therefore perfected. Once orders are perfected, a matter cannot generally be re-opened and re-heard. The normal course, if the AMA did not agree with the orders made, would have been to appeal.
21 There are, however, certain circumstances in which a Court has an inherent jurisdiction to amend or set aside orders which have been perfected so as to relieve an injustice. The authorities state clearly this inherent jurisdiction is limited. Recognised exceptions to the rule regarding finality include amendments made under the slip rule, setting aside orders on the basis of fraud and in a case of a self-executing order: Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) PTY Ltd (1993) 117 ALR 253. This list of exceptions is not exhaustive.
22 The inherent jurisdiction of the Court to set aside or vary orders, must be balanced against the public interest of finality to proceedings. This principle was set out by the High Court in DJL v The Central Authority [2000] HCA 17 where at paragraph 90 and 91 their Honours stated:
“The law, for very good reason, places a high store on the finality of court judgments and orders. There would be little point in having courts to resolve disputes between parties according to law with settled remedies of judicial review and appeal, and within a hierarchical judicial system, if no ultimate finality could be reached.
The judicial system would become discredited if “final” orders were revealed as provisional or always subject to reconsideration and collateral challenges thus compounding costs, delays and the anxiety of submitting disputes to independent judicial determination. People caught up in litigation would not be able to order their affairs with certainty following its outcome. They would be subjected to repeated attempt by their opponents to engage them in fresh argumentation on issues they thought had been decided....
On the other hand, because courts comprise decision-makers who are fallible human beings, not machines, occasionally errors and oversight will occur which can clearly be demonstrated and which produce a result that would be “manifestly unjust if the judgment were allowed to stand.”
23 The recent cases regarding the inherent jurisdiction to amend a perfected order were considered by Murray J in Lewandowski and Ors v Lovell (unreported FCt SCt WA; library No 960310, 14 June 1996). In that judgment he sets out various examples where the Courts have allowed final orders to be amended. They have included, where there was an inadvertence of counsel in raising the issue of costs before the Court, where the orders did not reflect the intentions of the Court and a costs order
made against solicitors, which was considered to be supplemental
to the substantive issue of costs between parties.24 Counsel for the AMA has not submitted that any of these recognised categories of exceptions applied in this case. In my view, any variation of the costs orders made by Mr Fleming will involve a clear variation of the substantive orders as to costs originally made.
Was there an injustice?
25 It is clear that the AMA believes a fair and equitable order in this case would be one that provides for the recovery of costs on an indemnity basis, or on some other basis than pursuant to the Schedule 3 of the Rules. This was not the finding of Mr Fleming. I agree with the views expressed by Owen J in Stowe v Stowe (unreported FCt SCt of WA; library No 950556, 16 October 1995) where he stated:
“The inherent jurisdiction exists to relieve cases of injustice. However, justice does not exist in a vacuum and the ramifications of actions taken in the interest of justice extend beyond the interests of the parties to the litigation in which the question arises. There is a public interest in the way in which justice is administered...The public interest in the finality of litigation is of even more significance when the litigant is calling in aid the inherent jurisdiction to review an order after it has been perfected and on the basis of error or inadvertence on the part of the legal representatives of the applicant. With burgeoning court delays and increasing pressure on courts to dispose of matters expeditiously it will, in my view, be only in exceptional cases that the court should intervene.”
Conclusion
26 I am not persuaded, on the evidence before me, that the AMA suffered injustice such as to warrant a departure from the important principle of finality to litigation to which orders of all courts are intended to give effect. There has been no inadvertence by counsel for the AMA in raising the issue of costs before the Court. Mr Fleming considered the issue and made, what was in his view, the appropriate orders. The orders now sought by the AMA seek to alter the substantive orders made by Mr Fleming and are not merely supplemental.
27 There has been no accidental slip or omission by Counsel or the Magistrate, no fraud, or denial of procedural fairness. The party seeking to reopen their case bears a heavy burden to demonstrate that the exceptional course is required without fault on his or her part. In my view, the applicant has not discharged this onus. If the applicant was not satisfied with the result, the appropriate course in this case was to appeal, not to bring a fresh application before a superior Court.
28 I am not persuaded by the alternate submissions of the AMA that the Family Court has the power to set aside or vary the orders of Mr Fleming under the Rules. The Court derives its power to make a costs order from section 117 of the Family Law Act, not the Rules. The Rules are supplementary guidelines to aid the Court in procedural matters, and do not override the provisions of the Family Law Act. The wording of r 1.11 is quite clear. There is no power of the Court under the Rules to set aside orders made under the Family Law Act.
29 The application is dismissed.
I certify that the preceding [29] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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