Westlake and Trask

[2013] FamCA 345

FAMILY COURT OF AUSTRALIA

WESTLAKE & TRASK [2013] FamCA 345

FAMILY LAW – COSTS – Husband to pay wife’s costs thrown away by reason of adjournment

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Westlake

RESPONDENT: Mr Trask

FILE NUMBER: SYC 1788 of 2010

DATE DELIVERED: 10 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 10 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Mr Stubbs

Orders

1. That leave is granted to the Respondent Husband to rely upon the affidavit of Mr Stubbs sworn and filed 9 May 2013. 

1. That the Respondent Husband shall pay the Applicant Wife’s costs thrown away by reason of the adjournment of the proceedings on 1 May 2013 as agreed and assessed. 

1. That leave is granted to the Respondent Husband to file in Court an affidavit of Mr L sworn on 8 May 2013. 

1. That leave is granted to the Husband’s legal representatives to uplift the Exhibit folder attached to the husband’s affidavit of 26 April 2013 and replace it with a bundle as agreed between the parties.

1. That I fix this matter for a continuation of the hearing at 10 am on Wednesday 9 October 2013 for one (1) day.

1. That leave is granted to the Applicant Wife to file and serve an affidavit of an adversarial expert in relation to the employment of the Husband.  Such affidavit is to be filed and served by no later than close of business on Friday 28 June 2013.

1. That leave is granted to the parties to each file and serve an updated affidavit dealing only with matters between the part-heard hearing 1 May 2013 until 9 October 2013. Such affidavit is to be filed and served by no later than close of business on 27 September 2013.

1. That leave is granted to the Applicant Wife to issue subpoena to Mr L and Mr C. Such subpoenae are to be made returnable and inspected prior to the hearing fixed on 9 October 2013.

1. That, in the event of any difficulties, liberty is granted to the parties to restore the matter to the list upon giving seven (7) days notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Westlake & Trask 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 SYDNEY

FILE NUMBER: SYC 1788 of 2010

Ms Westlake

Applicant

And

Mr Trask

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This matter commenced before me on 29 April 2013 as a three day property matter.  On day three, that is, 1 May 2013 the court started late due to other court commitments.  It was my intention on that day to sit extended hours to enable the matter to conclude on that day and for that purpose there was a shortened luncheon adjournment and I indicated I would sit until the end of the day, beyond usual court hours, to conclude the hearing. 

3. Much of day three of the trial was taken up with the cross examination of the husband.  A significant element of the cross examination of the husband related to his attempts and his desire to obtain work of a similar type and remuneration to that in which he had previously engaged.  The husband had been made redundant by his employer in June 2012 but remained under contract until September.  The husband swore an affidavit pursuant to orders of Justice Rees in September last year in which he made reference to some attempts to obtain work.  Perhaps not surprisingly, given the relatively short period of time for which he had been unemployed at that time, that aspect of his evidence was brief.

4. On the day before the hearing commenced in front on me the husband served what was described as an updating affidavit which dealt with a number of maters some of which  could be said to be updating and others not.  In that affidavit he once again made some, but fairly cursory, reference to his attempts to obtain employment.

5. In cross examination it was put to him forcefully that he had deliberately not sought to obtain employment.  The cross examination concluded at 3.34pm and counsel for the husband commenced to re-examine the husband.  At the end of that re-examination the husband sought to file in court and to read the affidavit of Mr C sworn 1 May 2013.  Mr C is one of the persons that was approached by the husband to assist in obtaining employment. 

6. It can be seen from the fact that the husband dealt with his attempts to obtain employment in both his affidavit of this year and in the affidavit that was filed and read at the commencement of the hearing, that attempts to obtain work were of relevance and significance. 

7. It appears that it was not until 26 March 2013 that the husband instructed his solicitor that he had approached two consultants to assist with finding employment opportunities.  It appears that after that information was received the two proposed witnesses were contacted.  Each initially declined to swear or affirm the affidavits prepared.  Subsequently, as has been seen, Mr C did swear an affidavit on 1 May 2013.  The upshot of this was that the wife had prepared and run a case on the basis that the evidence of the husband in relation to his attempts to obtain employment was fairly cursory.  The wife also sought to have the court draw an inference that the husband was not actively seeking employment.  In doing so she relied on the absence of evidence from the consultants and of any explanation for them not giving evidence.

8. The affidavit of Mr C provides evidence on that issue.  The husband sought to rely upon that evidence to rebut the inference which the wife sought to draw.  Not surprisingly, given that the affidavit of Mr C appeared for the first time late on the third day of the hearing, the wife was not in a position to deal with it.  The wife wished to issue subpoenas in relation to Mr C’s proposed evidence and possibly to engage an expert witness.

9. Thus, the choice was given to me either to reject the evidence of Mr C and conclude the hearing on that day or to decide to accept the evidence and thus put the wife at a disadvantage.  In those circumstances the matter could not properly continue on that day without the wife being given the opportunity properly to consider and if so advised test the evidence of Mr C or to call additional evidence that would bear on that issue.  In the event, I determined that the more appropriate course was to allow the evidence of Mr C.  The issue of costs is now before me today.

10. The second matter relevant to the issue of costs is the evidence of Mr B.  Mr B was appointed as a single expert to value the husband’s shares in D Bank to be received in the future as part of his remuneration from Company E.  The original order was made on 18 May 2012 but ultimately the time table for compliance with that order was extended to 27 October 2012. 

11. On 29 January 2013 the parties jointly instructed Mr B to value the D Bank stock units.  His report was received on or about 4 April 2013.  The solicitors for the husband were aware of the letter of instruction to Mr B and the documents to be given to Mr B to enable him to prepare his report.  The day after his report of 5 April 2013 the husband’s accountant wrote to him stating: “You have further requested that we review the report of [Mr B], Chartered Accountant dated 3 March 2013 in relation to your [D Bank] shares.  We comment as follows…” then proceeded to set out a number of critiques of Mr B’s report the first of which was that Mr B was not given all the relevant information. 

12. It is noted that although dated 3 March 2013 it is common ground between the parties that Mr B’s report was not received until 4 April 2013.  Thereafter, nothing occurred from the husband’s side in relation to Mr B’s report until late on the Friday before the trial commenced when the solicitors for the husband sought that the solicitors for the wife send further documents to Mr B with a request that he reconsider his report.  In fact, following some discussion in court on Monday morning that occurred.  I am informed from the bar table by the solicitors for the husband that there are still discussions ensuing with Mr B.

13. There is no satisfactory explanation given as to the delay between the receipt of the letter from the husband’s accountant on 5 April 2013 until the Friday before the hearing.  Similarly, the solicitor for the husband has candidly and very properly conceded that there was no explanation as to why the evidence of Mr C was not put on earlier save that the appropriate instructions were not given to him before 26 March 2013.

14. Nevertheless, the husband should have appreciated that these were significant matters in the proceedings.  It therefore seems to me that the matter would have been able to conclude on 1 May 2013 had it not been for the late service of Mr C’s affidavit and to a lesser extent the evidence of Mr B.  Given that Mr B was an expert witness, the balance of the proceedings could certainly have been concluded on 1 May 2013 even if some time was needed for Mr B to review the documents.

The relevant law

1. Pursuant to s 117 of the Act each party to the proceedings is to bear his or her own costs.  However, the court is free to make such order as it thinks fit in relation to costs. 

2. The financial circumstances of the parties do not seem to be especially relevant to the proceedings because it is more likely that not that each of them will be in receipt of a substantial capital sum or property at the end of these proceedings.  Neither is in receipt of legal aid.

3. The conduct of the parties and whether the proceedings were necessitated by a failure of a party to comply with the previous orders of the court are relevant factors.

4. Whilst one can readily appreciate why the affidavit that was served last year within time, contemplated by the orders of the court, would deal with the subject of seeking employment in a fairly cursory way.  Obviously, as time passed it became a more significant issue.  It was not inappropriate to bring updating evidence in relation to attempts to obtain employment before the court.  It was, however, inappropriate to do so on the third day of hearing after the point had been made blindingly obvious in the course of cross examination.  The same can be said in relation to delays raising issues with the report of Mr B.

Conclusion

1. The matter would have concluded on 1 May 2013 in all probability but for the late reliance upon the evidence of Mr C and for the difficulties in relation to the report of Mr B.  In relation to each of those reasons for delay the wife is entirely innocent. 

2. In those circumstances it seems to me, the husband having received the benefit of the court’s indulgence on being able to rely on evidence at the very last minute of the hearing, that it is appropriate that he pay the costs thrown away by reason of the adjournment of the proceedings on 1 May 2013 and I make that order.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 10 May 2013.

Associate: 

Date:  16 May 2013