Weber and Lipson (No. 2)

[2013] FamCA 709

FAMILY COURT OF AUSTRALIA

WEBER & LIPSON (NO. 2) [2013] FamCA 709

FAMILY LAW – COSTS – Husband to pay wife’s costs of a fixed sum.

Family Law Act 1975 (Cth)

Prantage & Prantage [2013] FamCAFC 105

APPLICANT: Mr Weber

RESPONDENT: Ms Lipson

FILE NUMBER: MLC 5453 of 2012

DATE DELIVERED: 24 July 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 July 2013

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Shepherd

SOLICITOR FOR THE RESPONDENT: Currie Law

Orders

1. That the wife have leave to file an affidavit by Mr A.

2. That the time for compliance with paragraph 4 of the orders made on 5 June 2013 is extended to 9 August 2013.

3. That the husband’s trial affidavit albeit filed out of time is permitted to be filed nunc pro tunc.

4. That the application in a case of the wife filed 10 July 2013 is adjourned to 9.00am on 5 August 2013.

5. That the wife’s solicitor has liberty to write to the Court up until 4.00pm on 2 August 2013 to advise that the hearing just referred to may be vacated.

6. That the response to the application in the case of the husband filed 24 July 2013 is dismissed.

7. That the husband pay the wife’s costs fixed in the sum of $3000 to be paid within two months of this date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Weber & Lipson (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5453 of 2012

Mr Weber

Applicant

And

Ms Lipson

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife for costs arising out of the interlocutory hearing that I conducted this morning over the last two hours. The proceedings before the court were an application in a case filed by the wife on 10 July and by leave of the court, a response to that application by the husband today. It has taken me two hours to wade through what seems to me to be a very simple proposition. I propose to make a number of orders but I am now dealing with the issue of costs. Section 117 of the Family Law Act has already been explained to the husband who is, although a legal professional, representing himself.

2. I do not propose to repeat what I have said about what the provisions of the Act are. I have also explained to counsel for the wife my reading of the recent Full Court decision in Prantage & Prantage [2013] FamCAFC 105 which, in my view, would mean that I am bound, in this case, not to make an order for indemnity costs which is effectively what the wife sought, arising out of today’s proceedings. It saddens me somewhat to say that I think that even if she is paying $6000 costs today, there is little I can do about that. In this case the first question is whether or not there are some circumstances that justify a departure from the principle that each party pay their own costs.

3. The husband’s position was that the application was precipitous.  Even if it was, it foreshadowed the possibility that the inspection of documents sought by the wife would not occur.  The wife was correct.  It seems to me that even on the husband’s version, he was perhaps misguided about his approach, namely that all of the documents that the wife was seeking to inspect had been provided before.  It may very well have been sensible for him to have actually been comprehensive in his response, provided the documents which were clearly in his possession, power or control and to have given an adequate explanation as to why he was unable to provide other documents and when those that were no longer within his control were last in his possession.

4. The wife had to come to court today to have all those issues canvassed and sorted out.  The critical question in this case is the one in relation to whether or not the wife is able to prepare adequately for trial.  Her lawyers say that she is not because she has not had access to the documents and there is no reason for me to doubt that that is the case, even though the husband says that this is vexatious on her part.  The question really is whether or not someone is fulfilling their positive obligation in relation to ensuring that there is a level playing field in relation to documentations for the purposes of a trial.

5. A failure to be positive about those things, even if the exercise is asserted to have occurred before, is a justifiable reason for departing from the principle that each party bear their own costs.  Before making an order, however, the court has to take into account the matters set out in 117(2A) of the Family Law Act 1975 (Cth) (“the Act”). There is clearly a property dispute here and the husband is a legal professional, so I presume he has a reasonable salary. There is nothing in this case, that I have read, that would suggest impecuniosity on the part of either party. Indeed, the husband points to the fact that the wife’s financial position is such that she can run up bills with her lawyers and have them paid by her father, so neither party is in impecunious circumstances.

6. There are no legal aid considerations in this case and it is a question of whether or not the court takes the view that the husband has been wholly unsuccessful.  The husband brought an application for orders today which essentially, he has withdrawn and I might say sensibly so.  Those orders that he sought in main were really against parties other than the wife.  In relation to the question of service of documents, whilst the rules provide that documents should be served on a litigant at their address for service, there is no reason why they cannot be served at another address but if, as seems to be asserted by the husband, that is being done for some vexatious purpose, then it seems to me that it is a matter for the legal professional regulatory bodies to deal with that, rather than the court.

7. There is nothing I have read today that would indicate to me that the solicitor for the wife was doing something inappropriate. It may be unwise for him to do that in future, having regard to the fact that the husband is now alive to the fact that he might take the matters, in future, up with the Legal Services Commission but having said that, the husband brought an application to which the wife has not responded but she clearly had to seek advice about it and a conference was involved. It seems to me that is another circumstance under which the Court ought depart from the principles of s 117.

8. That leaves the questions of whether or not the husband has been wholly unsuccessful and it is hard to imagine how he has been successful.  He was late with the filing of his affidavit, even after an extension of time was given to him by a registrar.  The wife did not seek to pursue the matter on an undefended basis but rather, to seek orders about inspection of documents.  The court rules provide that if someone fails to comply with the timetable for filing affidavit material, then their subsequent filing beyond the timetable is a nullity.  I have therefore given the husband leave, retrospectively, to file his affidavit to overcome that problem.

9. Leaving aside the issue of the service of documents by the wife’s solicitor, it is hard to see that the husband has been anything other than wholly unsuccessful. 

10. That finally leaves the question of whether or not there is some conduct in the way in which the litigation has proceeded which has brought about these particular interlocutory applications.  The wife seems to me to have had little choice but to bring the application because the husband’s position was quite clear.  In a letter that he wrote on 21 June and indeed, the way he commenced the proceedings today, his view was that he had complied with discovery.  He failed to recognise the fact that what the wife was really seeking was inspection of documents that were clearly within his possession, power or control.  Under those circumstances, it is appropriate to make an order for costs. 

11. As I indicated, the wife sought $6000 costs.  It saddens me to say that she would have to spend that amount of money to achieve the result that she has today. Schedule 3 to the rules sets out the costs that should be applied.  Taking into account counsel’s fees, a conference and in particular solicitor’s fees, it seems to me the total costs I should order is $3000 and I propose to make that order.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin J delivered on 24 July 2013.

Associate: 

Date:  3 September 2013