Worth and Worth

[2019] FamCA 632

FAMILY COURT OF AUSTRALIA

WORTH & WORTH [2019] FamCA 632

FAMILY LAW – PRACTICE AND PROCEDURE – Application to Review Registrar’s decision – Application dismissed

Family Law Act 1975, s. 117 Family Law Rules 2004, rr. 1.12, 18.08, 18.10, 19.21, 19.23, 19.24
APPLICANT:	Ms Worth

RESPONDENT: Mr Worth

FILE NUMBER: BRC 1771 of 2014

DATE DELIVERED: 11 September 2019

PLACE DELIVERED: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: In chambers on the papers with final written submissions filed 26 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rosen Lawyers

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

1. That the Application for Review of Registrar’s decision filed 27 May 2019 be dismissed.

2. That there be no orders 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 Worth & Worth 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 BRISBANE

FILE NUMBER: BRC 1771 of 2014

Ms Worth

Applicant

And

Mr Worth

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in the discrete issue for my determination have been litigating in respect of parenting and financial issues since 2014.  I see no necessity to provide further details of the history of litigation, which is well understood by the parties (even if disputed) and set out in the following:

   a)Reasons for Judgment of Forrest J pronounced on 13 April 2017, delivered after a lengthy trial; and

   b)Reasons for Judgment of the Full Court (Strickland, Kent and Hogan JJ) delivered on 8 March 2019 in which the husband’s appeal against certain orders of Forrest J was dismissed; and

   c)Further Reasons for Judgment of the said Full Court delivered on 29 July 2019 for its order that “the appellant husband pay the costs of the respondent wife of and incidental to the appeal, up to and including 18 May 2018, such costs to be assessed on a party/party basis in default of agreement.”

The discrete issue for determination

1. Notwithstanding the substantive litigation journey set out above, during the course of the litigation, Forrest J made an order on 14 January 2016 that:

   “That the father pay the mother’s costs of and incidental to his Application in a Case seeking to restrain the mother’s solicitor from continuing to act for her in these proceedings that was dismissed, such costs to be as agreed or as assessed on a party and party basis in accordance with the Family Law Rules 2004 (Cth).”

2. It does not appear to be in dispute, that because of a failure by the wife to strictly comply with Rule 19.24(3) of the Family Law Rules 2004 (“the Rules”) by filing documents “no later than 42 days after the Notice Disputing Itemised Costs Account was served” (the husband having served such a Notice on 1 April 2016), the wife filed an Application in a Case seeking extensions of time.

3. By Order made 11 December 2017, it was ordered by Registrar Brooks that:

   “That the time for filing of the Itemised Costs Account and Notice Disputing Itemised Costs Account is extended until 22 December 2017.

   AND IT IS NOTED that thereafter Chapter 19 of the Family Law Rules 2004 will apply to determine the costs dispute.”

4. The Applicant filed on 19 December 2017 a document headed “Bill of Costs” which the Applicant wife asserts is an Itemised Costs Account (“ICA”) in accordance with Rule 19.21(1).  The Respondent husband also on 19 December 2017 filed a Notice Disputing Itemised Costs Account, which the husband says was in accordance with Rule 19.23.

5. Rule 19.21(2) provides that “For party and party costs, the person entitled to costs must serve a costs notice at the same time as the itemised costs account is served under subrule (1).”  The solicitor for the wife concedes that no costs notice was served on 19 December 2017 (or in any event before 22 December 2017).

6. As a result, it seems, from the objections raised by the husband in his Notice Disputing Costs, the wife filed an Application in a Case on 14 March 2018, seeking an order:

   “1.      That the requirement that the Applicant file a Costs Notice at the same time as an itemised costs account served under Sub-Rule (1) be waived.

   2.        Alternatively, the Applicant be granted leave to serve a Costs Notice within seven days.”

7. The Respondent husband, in his Response filed 16 April 2018, in a pleading which does not deal specifically with the relief sought by the wife, in effect seeks the Application in a Case be dismissed.

8. For Reasons delivered by Registrar Brooks on 17 December 2018, the Registrar ordered the Application in a Case filed 14 March 2018 be dismissed. The effect of the order is that the wife, having not complied with the Rules to file a Costs Notice (under Rule 19.21(2)) and with no extension to do so being granted, the wife is unable to pursue the husband for costs as these steps are, under the Rules, prerequisites for asking the Court to make an assessment under Rule 19.24(3). For these purposes of the Application before me, I have made no assessment of the basis or reasonableness of the Itemised Costs Account, which the husband does challenge.

9. The Registrar having delivered her Reasons and having made an order on 17 December 2018, a right to seek a review is available to the wife (noting of course there was not real basis for the husband to do so).

10. Rule 18.08(1) provides for a party to apply for a review of the Registrar’s decision within 28 days after the Registrar makes the order, and such review hearing must proceed de novo as “an original hearing” (Rule 18.10(1)) although the Court may receive as evidence material available at the first hearing before the Registrar (Rule 18.10(2)).

11. The wife, on 17 January 2019, filed an Application to extend the time for filing an Application for Review.  Although opposed by the husband, for Reasons delivered orally on 23 May 2019, the Court gave the Applicant leave to file an Application for Review of the Registrar’s decision published on 17 December 2018, with such Application for Review to be filed and served by no later than 27 May 2019.  It should be noted that the matter came before me on 23 May 2019, because I had earlier ordered that the Application filed 17 January 2019 be adjourned until after the Full Court delivered its judgment.

12. On 23 May 2019, the husband who is self-represented now, appeared by telephone from the United Kingdom.

13. On 27 May 2019, the wife filed her Application for Review of the Registrar’s decision made 17 December 2018 and, in accordance with my directions, the following written submissions have been received and considered, namely:

    a)the wife’s written submissions filed 26 July 2019 in which the wife indicated the material relied upon; and

    b)the husband’s submissions filed 24 July 2019 and Affidavit filed 10 May 2019.

Discussion

1. Although I directed this Review Application to proceed “on the papers”, it is apparent that the ongoing conflict between these parties continues unabated and now, at least, involves:

   a)the order for costs made by Forrest J (which I am essentially engaged in); and

   b)a dispute as to costs arising from the Appeal that was unsuccessful; and

   c)another costs dispute arising from a Contravention Application subsequently discontinued by the husband.

2. The issues, other than the costs order of Forrest J, are not relevant to the matter I am asked to determine.

3. In my view, the following findings flow from the evidence of the wife, taken at its highest:

   a)The wife did not comply with Rule 19.21(2) when she filed her ICA within the extended time limit of 22 December 2017;

   b)At all relevant times the wife was represented by a solicitor who is both experienced in family law and had acted for her in the substantive proceedings.  I do not accept he was unaware of the requirements of Rule 19.21 – which in its terms is mandatory;

   c)The husband at all times was unrepresented and the need for him to be aware of his rights (which is the essential intent of the requirement to deliver a Costs Notice) should not be ignored lightly.  The fact that the husband’s Notice reveals that the husband has some understanding as to how he might dispute items is not the point, any more than the wife’s attempt to file an amended ICA (allegedly in response to some of the husband’s objections);

   d)The time limits and requirements under the Rules are designed to ensure costs disputes are dealt with in a timely and orderly process. The conduct of the wife (firstly in failing to file notices within time) in having received an indulgence to file out of time, and then failing to do so properly, frankly beggars belief. These actions were all within the control of the wife or at least her lawyer;

   e)I accept that the Court has a discretion under Rule 1.12 to dispense with the Rules (in this case the requirement to comply with Rule 19.21(2)) and the Rule at sub-Rule (3) sets out the considerations to be taken into account, namely:

   “(a) the main purpose of these Rules (see rule 1.04);

   (b)  the administration of justice;

   (c)  whether the application has been promptly made;

   (d)  whether non-compliance was intentional; and

(e)  the effect that granting relief would have on each party and parties to other cases in the court.”

The main purpose of the Rules, as articulated at Rule 1.04 is:

“…to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.”

f)I find, with an eye to these stated considerations, that:

i)the wife’s conduct and delays reflect a failure by her to properly prosecute her claim for costs arising from the Order of Forrest J;

ii)the administration of justice requires compliance with the Rules in fairness to both parties;

iii)the history of applications reveals a somewhat chaotic and ill-disciplined approach by the wife;

iv)non-compliance was not intentional (in the sense of seeking to cause some harm or is contemptuous), but is at best due to oversights by the wife’s solicitors; and

v)I accept that if relief is not granted, that the wife will be unable to pursues costs from the husband.  I accept her financial circumstances are modest and where she is the primary carer of the children (now aged 11 years and eight years) an inability to receive funds from the husband for the costs order of Forrest J could (if her solicitor charges her), put her “out of pocket”.  This factor weights in favour of granting the extension of time, however, on balance the other factors and the financial effect on the husband outweighs this determinant.

Conclusion

1. It is not a matter for this Court to get involved in the financial retainer and relationship between the wife and her solicitor. She of course was entitled to the fruits of the order made by Forrest J - but she ought to have more diligently pursued her rights in accordance with the Rules.

2. She did not do so.  Her remedies in respect of this order for costs might lie elsewhere.  However, for the reasons given, I would not grant the extension sought by the wife.  The order that as a result must flow, is that the Application for Review be dismissed.

3. The husband being unrepresented, in the exercise of my discretion, under s 117(1) and (2) of the Family Law Act 1975, there will be no order for costs in respect of this Application for Review, including reserved costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 11 September 2019.

Associate: 

Date:  11 September 2019