West and Hopper (No. 2)

[2009] FamCA 687

FAMILY COURT OF AUSTRALIA

WEST & HOPPER (NO. 2) [2009] FamCA 687

FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal for want of prosecution

Family Law Act 1975 (Cth)

APPLICANT: Ms West

RESPONDENT: Mr Hopper

FILE NUMBER: CAC 284 of 2007

DATE DELIVERED: 23 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 July 2009

REPRESENTATION

COUNSEL FOR THE

RESPONDENT:

MR BLACK

SOLICITOR FOR THE 

RESPONDENT:

PATRICK BLACK & ASSOCIATES

Orders

1. That all extant applications be struck out by consent of the husband and because of the wife’s failure to prosecute her application.

2. That the husband’s costs of these proceedings be paid by the wife subject to the existing costs orders and in default of agreement as to those costs, they be assessed.

3. That my reasons this day be transcribed.

4. That all proceedings are removed from the list of cases awaiting a hearing.

IT IS DIRECTED

1. That the solicitor for the husband serve a copy of my reasons upon the wife by post.

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 a matter which is bordering on disgraceful in terms of professionalism.  Whilst professionals act upon the instructions of their client, if what I have been told by Mr Black this morning is correct, then it leaves a lot to be desired about what the practitioner for the wife is doing.  That is particularly so having regard to the fact that the wife is the applicant for property orders.  She filed her application on 27 August 2007. 

2. I have had this case, I think, on two previous occasions as a result of it being sent to me by registrars who were bluntly frustrated by the absence of any activity notwithstanding numerous orders had been made for things to be done.  When the matter came before me, the essential dispute seemed to be about a claim that the wife wanted to make against her husband’s parent’s farming property in New South Wales.

3. I gave the wife an opportunity on that occasion to get her house in order and made it very clear that the concern I had related to jurisdiction.  When the matter came back before me, which was in May, the wife had still not got her house in order and what documents she had filed clearly still did not address the jurisdictional issue.  The solicitor for the wife attended the hearing on 5 May by telephone and obtained instructions from his client there and then not to proceed any further with the claim against the parents on the basis that his client was going to issue Supreme Court proceedings in New South Wales.  That concession having been made, there was a general consensus, although perhaps not precisely so, that the pool of assets between the parties amount to about $20,000.  The costs in this case to date have been horrendous having regard to the numerous appearances.

4. I expressed before about the fact that I was puzzled why this case was issued out of the Melbourne registry, having regard to the fact that both Canberra, and probably even Sydney, are closer, and that has exacerbated the costs position.  To make matters worse, I gave the wife another opportunity to get her house in order, having regard to the concessions as to the size of the pool by adjourning the matter for further mention before me today by telephone.  I did make specific reference to telephone because of the fact that I was troubled about the costs.  Importantly, I made an order that the wife have leave to issue subpoenas addressed to a number of organisations.  Those subpoenas were to be issued by 14 May, returnable on 28 May at 9.30.  I note that no such subpoenas were issued. 

5. Mr Black, this morning, is the only one of the two practitioners who has provided a telephone number to participate in the proceedings.

6. It is not the function of the court to be chasing practitioners, particularly when they have knowledge of the particular date and time.  What is perplexing to me is that Mr Black says that he has written five times subsequent to the May hearing to his counterpart and received no response.  No Supreme Court proceedings have been served on him or his client and the matter has not progressed. 

7. I was told on 5 May, that subject to the inquiries that would have come out of the subpoenas and having regard to the size of the pool, it was confidently thought that the matter would resolve.  Nothing has happened.

8. The husband’s position is that there is no need for property orders.  The matter relating to the children seems to be something that the parties can work out themselves and the case is otherwise going nowhere.  

9. Mr Black, on behalf of the husband, has asked me to strike the case out today, rather than to deal with it on an undefended basis, and formally dismiss it, and I propose to take that course of action, having regard to the fact that the wife’s track record in relation to compliance with orders and her indications of a lack of desire to resolve the big picture are more than evident from this file.  In those circumstances, the wife having failed to prosecute her case with any diligence, I am satisfied the only course open is to strike out the case.

10. Mr Black, on behalf of the husband, then seeks an order for costs. Under s 117 of the Family Law Act 1975 (Cth) (“the Act”), each party pays their own costs except in circumstances where the court feels that there is a justification for departure from the rule. This is not a new issue in this case, because on 5 May I made an order for $2000 against the wife, and on 16 February I made an order that the husband’s costs thrown away in respect of the hearings of 7 July, 28 October 2008, 7 January 2009 and 16 February be paid by the wife in default of agreement as to the quantum then as assessed. If the wife did not then get the message that failure to comply with court orders is a significant factor in making an order for costs then it would never happen. This is clearly a case where I do not need to traverse the factors in s 117(2A) again because I have done it twice before.

11. On that basis, I think that the only order that I can make is that the wife pay the husband’s costs of these proceedings generally, obviously subject to the costs orders that I have already made, and that in default of agreement between the parties as to those costs, then the costs be assessed pursuant to the schedule to the rules. 

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  31 July 2009