West and Hopper

[2009] FamCA 373

FAMILY COURT OF AUSTRALIA

WEST & HOPPER [2009] FamCA 373

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms West

RESPONDENT: Mr Hopper

FILE NUMBER: CAC 284 of 2007

DATE DELIVERED: 5 May 2009

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Taylor

SOLICITOR FOR THE APPLICANT: Cater & Blumer

COUNSEL FOR THE RESPONDENT: Mr Hogg

SOLICITOR FOR THE RESPONDENT: Patrick Black & Associates

Orders

1. That the matter be adjourned for mention at 9.00am by telephone on 23 July 2009.

2. That the wife have leave to issue subpoenae addressed to the Commonwealth Bank of Australia, the Westpac Banking Corporation, John Deere Credit and Y Irrigation Company to be issued no later than 14 May 2009 returnable on 28 May 2009 at 9.30am in the Registrar’s Subpoena List.

3. That the wife pay the husband’s costs thrown away of this day fixed in the sum of $2000 and the payment of such be stayed until the final determination of the property issues between the parties.

IT IS NOTED that publication of this judgment under the pseudonym West & Hopper is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: CAC 284 of 2007

MS WEST

Applicant

And

MR HOPPER

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the husband on the basis that he has attended in person, along with counsel and instructing solicitor, from New South Wales.  It was a matter that was before me on 16 February and specifically adjourned to today because, putting it rather bluntly, the parties were nowhere near ready to proceed, and I directed that they get their house in order.  The wife then filed an application setting out orders that she was seeking, and specifically sought interim orders relating to the joinder of the husband's parents.  The joinder of the husband's parents had been a subject of some debate for nearly two years and had been going nowhere.

2. As a result of discussions this morning, the wife, through her solicitor by telephone, has indicated that she is not going to proceed with the joinder of the parents, but rather issue proceedings out of the Supreme Court of New South Wales.  That then leaves the parties with, on one view, a pool of assets of about $20,000 to divide up between them, and on another view, at best less than $200,000.  The parties have agreed to exchange some documents in relation to tax returns and the like and I have agreed to make some orders in relation to the issue of subpoenae so that the wife can investigate some of the limited issues that are still in dispute.

3. The application of the wife, which has caused the case to be stalled for so long now, is not going to proceed, and therefore the parties can move on to resolve the dispute under s 79 between themselves.  Mr Hogg on behalf of the husband sought $7000 in costs today.  That includes not only the preparation of the matter, but also his brief fee and that of his instructing solicitor who has come down from New South Wales.  Mr Taylor on behalf of the wife opposes that, simply saying it is a matter for me, but the quantum is too high. 

4. This is a case where, under s 117, there is a justification for an order for costs and I have taken into account all of the matters in subsection (2A). 

5. It is quite clear that this has been caused today by the wife withdrawing her application, but I am troubled significantly about the financial circumstances of both parties. That is a very significant feature in this case. On the last occasion, I made an order for costs, but that seems to have been still outstanding because there was no agreement on those amounts and they were to be assessed. I am not going to put the parties in that position again. The quantum of costs is a discretionary issue and, absent some evidence about costs due under a cost agreement, the schedule to the Family Law Rules 2004 applies. This is a case where, on some rough calculations that I have done looking at the scale, the appropriate quantum of costs is $2000 and I propose to order that. I also propose to order that those costs be stayed until the final hearing of the property proceedings.

I certify that the preceding Five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  13 May 2009