WALT & QUINN
[2020] FamCA 383
•22 May 2020
FAMILY COURT OF AUSTRALIA
| WALT & QUINN | [2020] FamCA 383 |
| FAMILY LAW – ENFORCEMENT – applicant ordered to pay $20,000 by way of costs pursuant to orders of Baumann J – applicant a pauper – unjust and inequitable to compel enforcement – respondent seeking access to applicant’s superannuation – application refused. |
| Biosecurity Act 2015 (Cth) Family Law Act 1975 (Cth), ss 79A, 105, 106A, 112AD, 117 Family Law Rules 2004 (Cth), rr 11.10, 15.09(1)(b), 20.01, 20.07(d), 21.08 Federal Circuit Court Rules 2001 (Cth), rr 25B.07(2)(f), 25B.13(d) Superannuation Industry (Supervision) Act 1993 (Cth) |
| D Attorneys & Sresbodan [2017] FamCA 266 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Gaspaldi & Gaspaldi [2009] FamCA 1121 Hall & Hall (No 2) [2015] FamCA 219 In the Marriage of Collins (1992) 16 Fam LR 261 In the Marriage of Jones (1990) 14 Fam LR 19 In the Marriage of Ramsay (1982) 8 Fam LR 863 In the Marriage of Ramsey (No 2) (1983) 8 Fam LR 1005 Keane v Keane (2013) 50 Fam LR 120 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Matthews v Matthews (2006) 37 Fam LR 20 Nixon & Nixon [2013] FamCA 147 Quinn & Walt [2019] FamCA 15 Stephens v Stephens (Enforcement) (2009) 42 Fam LR 423 Stephens v Stephens (Enforcement) (Costs) (2010) 44 Fam LR 117 Walt & Quinn [2018] FamCA 855 |
| Professor Andrew Burrows, Understanding the Law of Obligations: Essays on Contract, Tort and Restitution (Hart Publishing Oxford, 2000) David Wright, Understanding the Law of Obligations: Essays on Contract, Tort and Restitution by Andrew Burrows (1998) 20 Adelaide Law Review 369 |
| APPLICANT: | Ms Walt |
| RESPONDENT: | Mr Quinn |
| FILE NUMBER: | MLC | 508 | of | 2018 |
| DATE DELIVERED: | 22 May 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 7 April 2020 |
| DATE OF FINAL WRITTEN SUBMISSIONS: | 30 April 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Lawyers by the Bay |
Orders
The initiating application filed by the respondent on 19 December 2019 and sealed on 20 December 2019 is dismissed.
I refuse leave to amend the respondent’s application in a case.
I make no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Walt & Quinn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 508 of 2018
| Ms Walt |
Applicant
And
| Mr Quinn |
Respondent
REASONS FOR JUDGMENT
Introduction
When sitting in the Judicial Duty List on 7 April 2020 this application came before me having been referred by Registrar Mestrovic on 21 February 2020.
On 7 April 2020 I heard the application by telephone, the court carrying out its work in accordance with protocols devised following the declaration of the existence of a human biosecurity emergency by the Governor-General on 18 March 2020 pursuant to the Biosecurity Act 2015.
Synopsis
For the reasons that follow, I dismiss the respondent’s application in a case filed on 19 December 2019 (sealed on 20 December 2019) and refuse leave to amend.
The nature of the application
On 26 October 2018 Baumann J delivered judgment on the application brought by Ms Walt holding that Ms Walt and Mr Quinn were not in a genuine domestic relationship. His Honour dismissed the proceeding and invited submissions on costs.[1]
[1]Walt & Quinn [2018] FamCA 855.
On 21 January 2019 Baumann J dealt with costs. His Honour rejected the respondent’s application for indemnity costs in the sum of $36,635.59.[2] His Honour indicated that no submissions had been advanced by the parties as to the quantum of party-party costs so his Honour gave the parties 14 days within which to file those submissions, in default of which his Honour indicated that cost in the sum of $20,000 would be ordered, such costs were to be payable within 90 days. On 13 February 2019, Baumann J ordered on a final basis as follows –
That noting no submissions as to costs have been filed pursuant to Order 1 of the Orders dated 21 January 2019, in accordance with Order 2 of the Orders dated 21 January 2019 the Respondent shall contribute the sum of $20,000 to the costs of Applicant payable within ninety (90) days of the date of this Order.
[2]Quinn & Walt [2019] FamCA 15.
The application originally sought was reposed in five paragraphs of the respondent’s application in a case filed 19 December 2019. Those paragraphs, with errors included, read as follows –
1.Enforcement of Orders made by Honourable Justice Baumann delivered on 21 January 2019;
2.Interests on an Order for costs pursuant to Rule 21.08;
3.Orders in aid of enforcement of the debt pursuant to Rule 25B.13(d) “in aid of enforcement of the debt” to be granted an order apply to the Trustee of the Respondent’s Y Superannuation Fund (Member No. ...…) for early release from the fund of a sufficient sum to discharge her liability under these Orders.
4.Return of the Motor Vehicle;
5.Reimbursement of all payments made on the vehicle for the period 13 February 2019 to date including monthly payments to L Company in the sum of $500.63, registration of $748.00, monthly car insurance of $75.10 increased to $84.06 since 3 September 2019 with V Company, and payout of the Motor Vehicle at $15,500 by 5 September 2021 being the final payment;
(a)Interest; and
(b)Legal costs incurred since 21 January 2019.
While I had reserved my decision the respondent sought leave to further amend his application in a case. In the latest version, for which leave has not yet been given, the respondent advanced a collection of broader applications. They are, with errors included, as follows –
1.Enforcement of Orders made by Honourable Justice Baumann delivered on 21 January 2019;2.Interests on an Order for costs pursuant to Rule 21.08;3.Orders in aid of enforcement of the debt pursuant to Rule 25B.13(d) “in aid of enforcement of the debt” to be granted an order apply to the Trustee of the Respondent’s Y Superannuation Fund (Member No. ...) for early release from the fund of a sufficient sum to discharge her liability under these Orders.4.Return of the Motor Vehicle.5.Reimbursement of all payments made on the vehicle for the period 13 Feburary 2019 to date including monthly payments to L Company in the sum of $500.63, registration of $748.00, monthly car insurance of $75.10 increased to 84.06 since 3 September 2019 with V Company, and payout of the Motor Vehicle at $15 500 by 5 September 2021 being the final payment;6.Interest; and7.Legal costs incurred since 21 January 2019.1.Pursuant to rule 11.10 of the Family Law Rules 2004 (Cth), the Applicant has leave to file an Amended Application in a Case.
2.Pursuant to s 117B(1) of the Family Law Act 1975 (Cth), the Respondent shall pay the Applicant interest on the unpaid costs that were due to be paid to the Applicant on 14 May 2019, calculated as of 30 April 2020, to be $2 699.
3.The costs order made at paragraph 1 of the Orders made on 13 February 2019, in accordance with paragraph 2 of the Orders made on 21 January 2019 against the Respondent (who was the Applicant in those proceedings) and in favour of the Applicant (who was the Respondent in those proceedings), shall be enforced as follows:
a.Pursuant to Rule 20.07(d) of the Family Law Rules 2004 (Cth); and
b.By the Trustee of the Respondent’s Y Superannuation Fund (Member No. ...) releasing $22 699 to the Applicant, such amount being $20 000 for the unpaid Costs Order made against the Respondent and $2 699 for interest on the unpaid costs.
4.In the alternative to the Order sought at paragraph 3 above, that the costs order made at paragraph 1 of the Orders made on 13 February 2019, in accordance with paragraph 2 of the Orders made on 21 January 2019 against the Respondent (who was the Applicant in those proceedings) and in favour of the Applicant (who was the Respondent) in those proceedings, shall be enforced as follows:
a.Pursuant to Rule 20.05(b) of the Family Law Rules 2004 (Cth); and
b.By the Respondent paying the Applicant the unpaid costs of $20 000 plus interest of $2 699 by way of a Third Party Debt Notice being granted against the Transport Accident Commission (AA Company).
5.To give effect to paragraph 4 of these Orders, the Application in a Case filed 20 December 2019, as amended by the Amended Application in a Case filed on 30 April 2020, be adjourned to a date on or after 30 June 2020.
6.The Applicant has leave to further amend this Application following the release of information subpoenaed from the AA Company and if relevant Z Company.
7.The Applicant and Respondent may file further submissions upon which they intend to rely by no later than 4pm on 12 June 2020.
8.The Application in a Case filed by the Respondent to these proceedings on 23 April 2020, be dismissed.
9.That the Respondent pay the Applicant’s legal costs of and incidental to this application on a party-party basis, in the sum of $10,220.00.
Returning to the debate on 7 April 2020, Mr Althaus, the respondent’s solicitor, told me his client was seeking to enforce the order made by Baumann J for payment of $20,000 in costs. Soon after learning that Ms Walt had not complied with the orders of Baumann J, I asked Ms Walt why she had not done so. She said the following –
HIS HONOUR: All right. Well, the 90 days has expired. So before we get into the amount being calculated and transfers and other items, do you mind if I just have a conversation with Ms Walt. I will come back to you of course, Mr Althaus. But I just want to know if there’s a reason why the orders were not complied with. So let’s deal with that first if we may, please. Ms Walt, over to you.
MS WALT: Good afternoon, your Honour. They are not complied with because I simply do not have the money. I have been unwell. I’ve had surgery. I’ve been in hospital. My financial situation as a result of this court and legal thing is that I absolutely do not have anything to my name.
HIS HONOUR: Right.
MS WALT: The original case with Mr Quinn – can I say from the original case with Mr Quinn was I had a lawyer provided to me by Legal Aid. Mr Quinn had a barrister. We went to trial. I lost a case that 1000 people, your Honour, can say I should have won the case. And so as a result of what’s happened to me and being failed by the Family Court, I now owe somebody that I lived with for 18 years of my life – and I swear on the bible, your Honour, and everything else – $20,000, and he’s destroyed my life and my family, and I have nothing at all to give to Mr Quinn.
HIS HONOUR: Right. And are you working at the moment, or were you working until recently, Ms Walt?
MS WALT: No, I haven’t been working since December 2018 when I had a head-on car accident. I haven’t returned to work. And as a result of ongoing surgeries and not being able to work for 12 months, my employers terminated my employment.
Ms Walt told me she did not take up the invitation offered by Baumann J to file material in relation to costs. Her reasons were as follows, as she gave them –
HIS HONOUR: Did you respond to the costs application by filing any document?
MS WALT: No, because
HIS HONOUR: Yes.
MS WALT: No. When I was given the $20,000 costs and things, I had the car accident on 18 December, and I ended up in hospital at the beginning of January and having a total ..... leg construction. And I was unwell. I had a head injury. I had a bleed on my brain. I’ve said all this in the documents. And I was in no position to respond or – and I didn’t have the money. I’ve been made – put in this position by the court’s judgment that was wrong. I did not have the money, I was unwell and I did not respond. I don’t even have the money for a lawyer to go to court. I don’t. That is why I’m representing myself now, because I have nothing left.
Her circumstances were bleak.
Mr Althaus pressed for payment of his client’s costs. He mentioned a Calderbank offer of $20,000. It seemed to me that the amount of the Calderbank offer may have explained how Baumann J came up with the sum of costs ordered of $20,000.
Mr Althaus pressed for me to order his client to have access to Ms Walt’s superannuation. Naturally, Ms Walt opposed that course and in trenchant terms. Mr Althaus relied on a case decided under s 79A varying an order splitting superannuation. That was a very long way from the matters with which I was concerned in this case. I said the following to Mr Althaus –
HIS HONOUR: Just a moment. You can’t extract a costs order from an impoverished person by having access to that person’s superannuation which has statutory protection. I mean, expressed in another way, you’re dealing with a person who is a pauper. And that happens in life. So unless you can persuade me in ways that I can’t presently see, that there is an entitlement for you to get access to Ms Walt’s superannuation, enjoying, as it does, statutory protection, I’m not going to entertain that application. So if you’re able to persuade me, off you go. Now’s your chance. But, otherwise, I can indicate to you that I’m presently not disposed to make that order. Are you able to point me to authority on this issue? Are you able to give me a statutory provision? If not, I’ve indicated what my preliminary thinking is on the point.
It struck me that a great deal of the information Ms Walt was imparting was a mixture of fact and submission. I gave her seven days to file an affidavit setting out her factual position. She duly complied. It is necessary to record some of the more important factual matters that arose from Ms Walt’s affidavit made in April 2020. Relevantly distilled, she said the following –
a)on ... December 2018 Ms Walt was involved in a serious motor vehicle accident;
b)she has not worked since that date;
c)on a fortnightly basis she receives from AA company the sum of $609 per week (but paid fortnightly);
d)amortised, her expenses are $640 per week;
e)that weekly expenditure is on average $31 more than she receives;
f)she relies on family and friends for further financial assistance;
g)commonly she is without funds; and
h)she previously entered into an arrangement with BB Company pursuant to which she paid $160 per week, such sum being deducted on a weekly basis, the last of which was paid on 7 October 2019.
Ms Walt said that between 1998 and 2014 she was employed as a health professional. She said that between 2014 and the date of the motor vehicle accident she was employed in administration work. Her accident was on ... December 2018.
She said she expects the receipt of her AA Company payments to be reviewed in June of this year.
Ms Walt addressed her net income for the 2017, 2018 and 2019 financial years. Respectively, she said it was $29,535, $29,054 and $34,908.
Ms Walt said her current savings stood at less than $250 and her superannuation stood at $90,578. The amount of superannuation was important because the respondent sought orders in respect of Ms Walt’s superannuation entitlements. In the passages below I have addressed whether the respondent is entitled to execute the costs order against Ms Walt.
Without substantiating the sums involved, Ms Walt said that during the course of this litigation, the respondent owned assets valued at approximately $2.3m. She said that amount was made up of –
a)a 14 acre property at Town T worth approximately $2m;
b)superannuation of $200,000; and
c)a motor vehicle, equestrian equipment, a horse truck and horse float valued at approximately $100,000.
Ms Walt deposed in her affidavit to health issues adversely affecting her. It will be recalled that she deposed to a serious car accident on ... December 2018 for which she underwent surgery on 10 January 2019, by reason of which she said she was unable to comply with the orders for filing submissions in accordance with the orders of Baumann J. She said she sustained head, neck, face, eye, shoulder and arm injuries in that car accident. Prior to that incident, she said she had sustained earlier injuries namely –
a)a workplace injury in 2011 resulting in five surgical procedures to her left knee, culminating in a partial knee replacement in 2013;
b)left knee surgery in June 2017 for a torn meniscus; and
c)surgery for the reconstruction of her right shoulder in May 2019.
She said she needs to wait for further surgery to reconstruct her left shoulder as a result of the December 2019 car accident.
She said that the partial left knee replacement surgery was unsuccessful so in September 2019 she underwent a total left knee replacement and further knee surgery in February 2020.
By reason of the extent of the surgery she described, she said she is in chronic severe pain, she suffers from depression and she remains under the care of Dr M of N Centre. She said she is under the care of her treating general practitioner, Dr P of S Medical Centre.
Ms Walt said in her affidavit that she is 51 years of age and has been unable to work continuously since her first knee injury in 2011. She said she holds little hope of being able to obtain any form of employment in the future.
The affidavit on which Ms Walt relied narrated events going back to 2011 that told of her sorry medical history. I accept that Ms Walt is in chronic pain, as she said, after an array of invasive surgical procedures. I also accept that Ms Walt will, at age 51, encounter very considerable obstacles in any endeavour to return to the workforce. She is engaging in a sustenance existence and her financial circumstances are bleak.
This application
Before going to the application in a case filed on 19 December 2019, it is important to point up certain factual matters. First, notwithstanding Baumann J’s order requiring the applicant to pay $20,000 as a contribution to the respondent’s costs, no evidence was before me in respect of any aspect of the respondent’s costs. The court record shows he was represented before Baumann J. He was represented by Mr Althaus before me. However, nowhere in the material before me was there any evidence that he has been charged or that he has paid legal fees. I assume Mr Althaus is not providing his legal services on a pro bono basis, although the point cannot be answered positively one way or the other.
The next preliminary matter is the relevance of three subpeonae, each issued on 15 April 2020, that is to say a week after I heard this case. A subpoena was directed to –
a)The Commissioner of Police;
b)Q Company; and
c)AA Company
In the AA Company subpoena the respondent sought all records relating to the history and outcome of claims as well as benefits paid in relation to the applicant’s motor vehicle accident on ... December 2018.
In the Q Company subpoena, the respondent sought all records relating to details of injuries sustained by the applicant and associated medical records for the applicant’s admission on ... December 2018.
In the police subpoena, the respondent sought all records including LEAP records in relation to the applicant following her accident on ... December 2018.
Each subpoena needed to be answered by 29 April 2020. Whether any has been answered or whether documents have been inspected is a matter in respect of which I am presently unawares.
However, as to each subpoena, the trial has concluded. No subpoena is relevant to the costs issue I must decide. The relevance of any of the three subpoenae is not easy to ascertain, at present.
The next issue relates to two affidavits made by the respondent. The first was affirmed on 19 December 2019 and the second on 27 April 2020. In his 19 December 2019 affidavit, the respondent quoted from a statement he gave to Victoria Police dated 24 July 2019. In it he stated that the Motor Vehicle registered … was his car, that the applicant used it in October 2016 and that he had not seen the vehicle since then. He said he had cancelled the registration of that vehicle. He said the car was stolen.
In the same affidavit the respondent purported to state matters of law, especially about s 105 of the Family Law Act, the operation of the Federal Circuit Court Rules, s 112AD of the Family Law Act and the so-called Rule 25B.07(2)(f). The respondent is not a legally qualified legal practitioner. He has no knowledge of those matters. The author of that affidavit, a company called W Pty Ltd should not have permitted the affidavit to be filed in that form. Solicitors owe a duty to the court, one not observed in relation to that affidavit, to ensure that a witness gives admissible evidence.[3] This witness did not give admissible evidence between paragraphs 12 and 19 of his 19 December 2019 affidavit. He was not qualified to express views on matters of law – Dasreef Pty Ltd v Hawchar[4] and Makita (Australia) Pty Ltd v Sprowles.[5]
[3] Rule 15.09(1)(b) of the Family Law Rules.
[4] (2011) 243 CLR 588.
[5] (2001) 52 NSWLR 705.
I rule that those paragraphs are inadmissible. The costs associated with their inclusion in that affidavit are disallowed.
The respondent’s affidavit made 27 April 2020 was filed in compliance with the time limited by paragraph 2 of my orders made 7 April 2020. Once again, in it the deponent purported to address matters of law a matter that is highly impermissible. His statement “I say it is just and equitable to vary the order” of Baumann J is a submission not a statement of fact and it is a submission of law. He is not qualified to make that submission. I reject it. In other paragraphs of that affidavit the deponent sought to debate the contents of the applicant’s 17 April 2020 affidavit and to make submissions about those contents, including how (according to the respondent) the applicant did not give “financial discovery” leading to the issue of the three subpoenae. The deponent purported to narrate the contents of an email from AA Company to his solicitor. The solicitor as the recipient of the email, not some third person, should have deposed to that email chain. In paragraph 11 of his affidavit of 27 April 2020 the respondent asserted he was seeking an extension of time to enable AA Company to respond to the subpoena served on AA Company. Again, the solicitor for the respondent was the proper person to depose to that request.
The AA Company subpoena addressed a peripheral issue in this costs dispute. How much AA Company had paid the applicant was largely beside the point. The claims made by the applicant and the outcome of those claims were also matters largely beside the point of this costs dispute.
In other paragraphs of his 27 April 2020 affidavit the respondent took issue with various statements by the applicant, the majority of which were raised to put in issue, so he said, that the respondent was not as impoverished as she said she was. The respondent sought to debate various statements made by the applicant comparing her comments against the reasons for judgment of Baumann J (short as those reasons were). For the most part, either those statements (such as in paragraph 20 of his affidavit) were submissions and not properly the subject of an affidavit or they were designed to impugn the credit of the applicant on this costs application. Either way I did not find them useful. His comment “I anticipate the police will be in a position to arrest her for being in possession of a stolen motor vehicle” was wholly improper. The solicitor who prepared that affidavit should not have included that statement. Ethical issues are raised by such a statement. The witness’s state of anticipation was not a fact. It was therefore inadmissible. The fact of theft had not been established. Whether the police would do anything about the vehicle, let alone arrest the applicant, was pure speculation on the respondent’s part. The solicitor who prepared the affidavit with that sentence should have more carefully prepared the affidavit. Including such a statement is conduct that I condemn.
In a similar vein, I wish to make some observations about the respondent’s 24 March 2020 affidavit. In it he said the following at paragraphs 6 & 7 –
6.Since I filed my previous affidavit affirmed 19 December 2019, my solicitor has brought to my attention the case of Wilkinson & Kemp [2020] FCCA 69 (16 January 2020). This case sets out the path to achieve the result of seeking an order pursuant to s 79A(1)(c) to vary the s 79 Order to split superannuation and now endorsed by the Court. The path is via a s 79A(1)(c) application to vary the s 79 Order so that the costs payment can be a splittable superannuation payment, with the Courts using its jurisdiction to make ‘machinery orders’ when approaching matters as to enforcement, such as in my case.
7.In a further case Judge Neville’s decision of Cummings & Warner (No. 2) [2018] FCCA 2838, noted that an Order for payment of non-superannuation monies was enforced via a super split. In both these cases, procedural fairness was given to the super trustee.
The respondent is a tradesperson. He is not a barrister or even a solicitor. Precisely how he could make an affidavit in which he purported to recite a decision of a Federal Circuit Court judge is beyond me. Obviously, the solicitor who prepared the affidavit “verballed” him by putting words in an affidavit that the respondent is unlikely to have used himself. Purporting to explain the operation of the Family Law Act is not a matter within this witness’s expertise as a welder. But the witness sought to introduce two decisions of the Federal Circuit Court. This is the Family Court, not the Federal Circuit Court. I am not bound by Federal Circuit Court decisions.
In any event, the witness purported to explain how s 79A of the Family Law Act permitted the application he made to be brought. This was not a s 79A application. Very precise stipulations apply to a s 79A application. The application in a case filed 19 December 2019 did not express the application to be brought under s79A. The registrar who referred the application to me did not proceed on the basis that this was a s 79A application. If this was a s 79A application the basis of the application needed to be stated with precision. That was not done in this case.
After indicating on 7 April 2020 that I proposed to give judgment on the papers on a date after 27 April 2020, the respondent (without leave) purported to file an amended application in a case. It was dated 30 April 2020. In it the respondent purported to delete each paragraph of the application in a case filed on 19 December 2019. In place of those paragraphs the respondent sought new orders in paragraphs 1-9. They were as follows –
1.Pursuant to rule 11.10 of the Family Law Rules 2004 (Cth), the Applicant has leave to file an Amended Application in a Case.
2.Pursuant to s 117B(1) of the Family Law Act 1975 (Cth), the Respondent shall pay the Applicant interest on the unpaid costs that were due to be paid to the Applicant on 14 May 2019, calculated as of 30 April 2020, to be $2 699.
3.The costs order made at paragraph 1 of the Orders made on 13 February 2019, in accordance with paragraph 2 of the Orders made on 21 January 2019 against the Respondent (who was the Applicant in those proceedings) and in favour of the Applicant (who was the Respondent in those proceedings), shall be enforced as follows:
a.Pursuant to Rule 20.07(d) of the Family Law Rules 2004 (Cth); and
b.By the Trustee of the Respondent’s Y Superannuation Fund (Member No. ...) releasing $22 699 to the Applicant, such amount being $20 000 for the unpaid Costs Order made against the Respondent and $2 699 for interest on the unpaid costs.
4.In the alternative to the Order sought at paragraph 3 above, that the costs order made at paragraph 1 of the Orders made on 13 February 2019, in accordance with paragraph 2 of the Orders made on 21 January 2019 against the Respondent (who was the Applicant in those proceedings) and in favour of the Applicant (who was the Respondent) in those proceedings, shall be enforced as follows:
a.Pursuant to Rule 20.05(b) of the Family Law Rules 2004 (Cth); and
b.By the Respondent paying the Applicant the unpaid costs of $20 000 plus interest of $2 699 by way of a Third Party Debt Notice being granted against the Transport Accident Commission (AA Company).
5.To give effect to paragraph 4 of these Orders, the Application in a Case filed 20 December 2019, as amended by the Amended Application in a Case filed on 30 April 2020, be adjourned to a date on or after 30 June 2020.
6.The Applicant has leave to further amend this Application following the release of information subpoenaed from the AA Company and if relevant Z Company.
7.The Applicant and Respondent may file further submissions upon which they intend to rely by no later than 4pm on 12 June 2020.
8.The Application in a Case filed by the Respondent to these proceedings on 23 April 2020, be dismissed.
9.That the Respondent pay the Applicant’s legal costs of and incidental to this application on a party-party basis, in the sum of $10,220.00.
It was readily apparent to me that the author of the amended application in a case, W Pty Ltd, did not appreciate that the amended application in a case, if leave were granted to file and serve it, wholly replaced the relief sought in the 19 December 2019 application in a case. Nothing from the December 2019 application in a case was preserved. All seven paragraphs of the earlier document were deleted. Yet in paragraph 5 of the 30 April 2020 application in a case the author expressed the respondent’s application as if the 19 December 2019 application in a case still stood. That was wrong if leave was given to rely on the 30 April 2020 application. None was.
No affidavit was filed in support of the amended application. By the terms of the nine paragraphs of the amended application, when properly construed they were intended to be entirely new prayers for relief, even though in some instances the same or similar orders had been sought in the earlier application in a case.
In paragraph 1 of the amended application the respondent sought leave under Rule 11.10 of the Family Law Rules to file the amended application in a case. Whether leave should be granted depended in part on the applicant’s attitude towards the amendment. She opposed the application. In part, whether leave to amend should be granted also depended on the answer to whether the relief recorded in the amended application was likely to be successful and therefore, whether there was purpose in granting the amendment.
The claim for interest set out in paragraph 2 of the amended application was expressed differently to the claim for interest recorded in paragraph 2 of the December 2019 application in a case. The earlier iteration simply claimed interest on an order under Rule 21.08. That rule regulated the conduct of a contravention application, wholly inapplicable to the interest claim in this case. In the amended application, the respondent sought interest under s 117B(1) of the Family Law Act. It was said in paragraph 2 of the amended application that interest was due on unpaid costs that were due to be paid on 14 May 2019 calculated to 30 April 2020 as being $2,699.
Section 117B applies to interest on money ordered to be paid. That section has been confined to orders other than costs orders. The Full Court of the Family Court of Australia has considered the point in a number of cases including In the Marriage of Jones,[6] In the Marriage of Collins,[7] Matthews v Matthews,[8] Stephens v Stephens (Enforcement)[9] and Stephens v Stephens (Enforcement) (Costs).[10]
[6] (1990) 14 Fam LR 19.
[7] (1992) 16 Fam LR 261.
[8] (2006) 37 Fam LR 20.
[9] (2009) 42 Fam LR 423
[10] (2010) 44 Fam LR 117.
Paragraph 3 of the amended application related to the same subject matter as did paragraph 3 of the earlier application in a case. Yet on close examination the two applications were quite different. In the earlier iteration the respondent allegedly relied on Rule 25B.13(d) of the Family Law Rules. No such rule exists. Had the respondent not abandoned paragraph 3 of the original application and replaced it with paragraph 3 of the amended application I would have dismissed paragraph 3 of the original application on the basis that the power to make such an order had been incorrectly stated and I would have ordered the respondent to pay the costs of that application.
The application made in paragraph 3 of the amended application in a case was significantly more improved than was its earlier counterpart. Its details have been set out earlier in these reasons so I shall not repeat them here. The application related to the sum of costs ordered on 13 February 2020. By paragraph 3 of the amended application the respondent sought an order for the enforcement of that costs order, such enforcement being sought pursuant to Rule 20.07(d) of the Family Law Rules. Relevantly stated, that rule was as follows –
Rule 20.07
The court may make an order:
(d) in aid of the enforcement of an obligation.
That rule has been judicially interpreted but not in the context of a trustee of a superannuation fund. In D Attorneys & Sresbodan[11] Aldridge J doubted the power under Rule 20.07(d) of the Family Law Rules permitted the court to order a payment from a controlled monies account. In Nixon & Nixon[12] Dessau J held that the power under Rule 20.07(d) was very wide. The decision of Dawe J in Hall & Hall (No 2)[13] concerned enforcement of spousal maintenance, factually very different from this case. There, the application was not grounded in Rule 20.07(d). Similarly, in Gaspaldi & Gaspaldi[14] Faulks DCJ was concerned with Rule 20.07(d) yet the applicant in that case did not seek an order against a trustee of a superannuation fund. The decision of Watts J in Keane v Keane[15] concerned enforcement of child support orders, that decision having no factual parallel to this case.
[11] [2017] FamCA 266.
[12] [2013] FamCA 147.
[13] [2015] FamCA 219.
[14] [2009] FamCA 1121.
[15] (2013) 50 Fam LR 120.
Paragraph 3(b) of the amended application involved enforcing the order for the payment of costs “by the trustee of (Ms Walt’s) Y Superannuation Fund…releasing $22 699 to (the respondent)”, that amount being the $20,000 plus interest. In other words, the respondent was seeking an order against the trustee of Y Superannuation Fund commanding the trustee to make a payment to the respondent of the costs ordered by Baumann J.
Several things must be said about such an application for such an order.
First, the trustee of that superannuation fund is bound by the terms of the superannuation deed between the trustee and the fund members. That deed was not in evidence. It was impossible to tell, in the absence of the deed, what were its provisions. Whether the trustee was even authorised to make a payment of the sort contemplated by the respondent’s application was unknown.
Second, as did Aldridge J in D Attorneys & Sresbodan, I have very real doubt that Rule 20.07(d) confers power on this court to make the order that the respondent wished me to make. While I respectfully agree with Dessau J that the power in Rule 20.07(d) is broad, the phrase “enforcement of an obligation” has not been held to be synonymous with “paying a costs order”. Costs orders are addressed in different provisions of the rules. The word “obligation” in Rule 20.07(d) appears yet the word “order” is a more appropriate word to refer to an existing costs order. At first blush it seemed to me that the word “obligation” was intended to address something in the nature of a legal or equitable obligation which a party may be under, such as one arising under a security instrument such as a mortgage, a right under a mining lease, say, or a share purchase agreement. It was a perfectly simple task for the legislature to have stated in Rule 20.07(d) “in aid of the enforcement of a costs order” yet those words do not appear in that rule. In civil law, an “obligation” was characterised by having four essential elements, namely –
a)the obligor being the person who has a duty to fulfil the obligation;
b)the obligee, being the person entitled to demand fulfilment of the obligation and who possesses a right to enforce the performance of the obligation;
c)the prestation, that is to say, the subject matter of the obligation; and
d)the legal bond, or the “vinculum juris” that connects the obligor and the obligee to the prestation.
In Anglo-American law, the law of obligations involves a consideration of the inter-relationship of the law of contract, the law of tort and the law of restitution, a point made by Professor Andrew Burrows in his learned treatise Understanding the Law of Obligations: Essays on Contract, Tort and Restitution.[16] Legal academic David Wright has written on the area, pointing up the importance of the remedies provided in all three fields of jurisprudence.[17]
[16] Hart Publishing Oxford, 1998.
[17] David Wright, Understanding the Law of Obligations: Essays on Contract, Tort and Restitution by Andrew Burrows (1998) 20 Adelaide Law Review 369.
When first considering this application especially the application in paragraph 3 of the amended application, I formed the tentative view that the reference to “obligation” in Rule 20.07(d) may have required a construction against amorphous principles or generalised imprecise notions of moral obligations. I also formed the tentative view that “obligation” in Rule 20.07(d) may have been a right enforceable under the law of contract, the law of tort or the law of restitution. Self-evidently, meeting a costs order was not among those. However, Rule 20.07 is among the provisions of Chapter 20 of the rule, that chapter being entitled “enforcement of financial orders and obligations”. Rule 20.01(1) provides that an “obligation” in Chapter 20 includes an obligation to pay money (subrule (1)(a)), an obligation to sign a document under s 106A (subrule 1(b)), an order entitling a person to possession of real property (subrule 1(c)) and an order entitling a person to the transfer or delivery of personal property (subrule (1)(d)).
Reference to an “obligation to pay money” is a curious phrase. In common parlance, a court order to pay a sum certain may take the form of a judgment debt or an order to pay a specific amount by a specific date. Yet in Rule 20.01 an order to pay a sum certain including a costs order is called “an obligation to pay money”, as Rule 20.01(2)(f) provides. It follows that Rule 20.07(d) makes provision for an order in aid of payment of a costs order.
It goes without saying that an order under Chapter 20 including an order under Rule 20.07 is discretionary. Before coming to the issue of whether to make any order rendered discretionary under Chapter 20, it is first necessary to go to two other matters arising out of paragraph 3 of the respondent’s amended application. They are –
a)the absence of evidence of notice of the making of this application to the trustee of the Y Superannuation Fund; and
b)the power of the court to make an order directed to the trustee of a superannuation fund to pay a sum from the funds of a fund member in favour of a creditor.
As to the want of evidence of notice to the trustee of the making of this application, no information was put before me to the effect that the trustee knew of, consented to or wanted to be heard in relation to the application made in paragraph 3 of the amended application in a case. That was a serious omission. The trustee had an ongoing duty to maintain the trust fund and an ongoing duty to act in the best interests of beneficiaries under the trust deed and members of the relevant fund. The trustee would almost certainly wish to be heard before an order in terms of paragraph 3 were made. That was for the simple reason that such an order affected funds under the trustee’s management being funds the trustee was legally compelled to properly administer.
As for the power of this court to make the order sought in paragraph 3 of the amended application, I do not consider that such power exists. No statutory basis was urged by the respondent’s solicitor. Whether the Superannuation Industry (Supervision) Act applies in these circumstances was not a matter brought to my attention. In any event, it is the task of the legal representative not the judge to research the point.
Before leaving the application in paragraph 3 of the respondent’s amended application, it is necessary to say a little about the discretionary nature of the power conferred by Chapter 20 of the Family Law Rules. Even though the trial of this proceeding was conducted before Baumann J, the nature of the application made for enforcement is interlocutory, as was held in D Attorneys & Sresbodan. The exercise of the powers under Rule 20.07 is predicated upon a discretion, hence the use of the word “may”. By no means should an applicant under Rule 20.07 consider that the making of any order under that rule is gainsaid. Aside from the use of the word “may”, it has been held that the power to enforce orders is discretionary in In the Marriage of Ramsay[18] as well as in In the Marriage of Ramsey (No 2).[19] In the latter decision, the court spoke of whether circumstances have arisen in which it would be inequitable to enforce the original order.
[18] (1982) 8 Fam LR 863.
[19] (1983) 8 Fam LR 1005.
In my view it would. I say that for several reasons including –
a)the applicant, Ms Walt, was hospitalised when Baumann J gave her time to file submissions on costs;
b)her hospitalisation was for a serious condition following a car accident;
c)she was unable to provide submissions within the timeframe Baumann J allowed;
d)she is in very considerable financial distress; and
e)her superannuation entitlements represent her only meaningful asset at present.
It is far from unusual for a judgment creditor to be confronted with a judgment debtor without funds to meet the sum ordered to be paid. Legal historians will be well aware of the practice of the court sheriff that commenced in the 17th century to return a writ of execution marked “mullum bonum”, a Latin phrase meaning “no goods” against which to levy execution. Ms Walt has the lamentable misfortune to be without means against which the respondent can levy execution. But that does not provide the respondent with an opening to access her superannuation. I dismiss the application in paragraph 3. It should not have been brought.
In paragraph 4 of the amended application in a case, the respondent sought as an alternative to the order sought in paragraph 3 an order that the applicant satisfy the costs order of $20,000 by a third party debt notice issued against AA Company.
As has been already indicated, in In the Marriage of Ramsey (No 2) it was held that a court may refuse to enforce the original order (here for costs) if it would be inequitable to enforce the costs order. The AA Company payments are to enable the applicant to sustain herself in view of her significant injuries. It is not intended to be a convenient method for the respondent to garnishee sums intended by statute to rehabilitate the victim of a motor vehicle accident. In my view it would be inequitable in the extreme to permit the respondent to issue a third party debt notice directing AA Company to satisfy the respondent’s costs order. I will not allow such a course.
For those reasons there is no utility to be served in allowing the proposed amendment to the application in a case. It has no prospects of success.
The Motor Vehicle
In the initiating application filed on 19 December 2019 the respondent sought an order for the return of the Motor Vehicle. The applicant said that vehicle had been given by the respondent to her, absolutely, by way of gift. The respondent denied that. He endeavoured to enlist the services of the police, alleging theft of that motor vehicle.
This was an interlocutory application. The trial of this proceeding has been concluded. At this interlocutory juncture, I am unable to determine ownership of that motor vehicle. An order for the return of the motor vehicle presumes a finding that the vehicle was owned by the respondent. The applicant said the vehicle was a gift to her. She asserted ownership of the vehicle. I was unable to determine ownership of the vehicle at this point. Until such a determination is made it is not possible to say who the owner of the vehicle is. In the absence of such a finding I am not prepared to make an order for the return of the Motor Vehicle to the respondent. It follows that any question of responsibility for finance costs, insurance and the like flows from a determination of ownership.
I dismiss paragraphs 4 and 5 of the application in a case filed 19 December 2019.
Costs
The respondent sought payment of costs incurred since 21 January 2019.
That application is refused. A creditable argument can be advanced to the effect that the respondent should pay the costs of Ms Walt of the application in a case and of any debate about the amendment. That is for the simple reason that Ms Walt’s financial circumstances were so parlous that the respondent should not have endeavoured to execute the sum of $20,000 against Ms Walt’s superannuation fund. To do so would be inequitable. That application should not have been brought. It was doomed to fail.
Ordinarily each party bears his or her own costs. That is the effect of s 117(1) of the Family Law Act. The court is empowered to make an order other than one under s 117(1) by operation of s 117(2). If the court makes an order under s 117(2), the court must take into account the considerations set out in s 117(2A). Nowhere did the respondent’s solicitor advance submissions that enlivened s 117(2A). I refuse to make an order that the applicant pays the respondent’s costs.
The orders I make are as follows –
a)the initiating application filed by the respondent on 19 December 2019 and sealed on 20 December 2019 is dismissed;
b)I refuse leave to amend the respondent’s application in a case; and
c)I make no order as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 22 May 2020.
Associate:
Date: 22 May 2020
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