WORTH & WORTH

[2020] FamCA 245

FAMILY COURT OF AUSTRALIA

WORTH & WORTH [2020] FamCA 245

FAMILY LAW – REVIEW OF A REGISTRAR’S DECISION – Where the father seeks a review of a Registrar’s decision in relation to the filing of certain documents – Where the father contends such documents were filed outside the time limit prescribed in r 19.24(3) – Where the father’s contention is based on an erroneous date stamped on the face of the documents – Where the documents were filed within the time limit – Application dismissed.

FAMILY LAW – COSTS – SECURITY FOR COSTS – Where the mother seeks an order for security for costs in relation to an order made in her favour by the Full Court – Where the mother conceded her application was misconceived – Where an order for security for costs is proactive and not reactive – Application dismissed – Where the mother is afforded the opportunity to bring an application under the Court’s enforcement powers.

Family Law Act 1975 (Cth) ss 37A(9), 117
Family Law Rules 2004 (Cth) rr 1.14, 18.07, 18.08, 18.09, 18.10, 19.22, 19.23, 19.24(3), 24.05

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Worth & Worth [2019] FamCAFC 40
Worth & Worth(No. 2) [2019] FamCAFC 126

APPLICANT: Ms Worth

RESPONDENT: Mr Worth

FILE NUMBER: BRC 1771 of 2014

DATE DELIVERED: 16 April 2020 (Orders made 25 March 2020)

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 25 March 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Rosen via telephone, Rosen Lawyers

THE RESPONDENT: Self-represented via telephone

Orders Made on 25 March 2020

IT IS ORDERED BY CONSENT THAT:

1. The respondent husband be granted leave to appear via telephone at all future Court events relating to the assessment of costs previously ordered by the Full Court dispute and any enforcement application relating to those costs.

IT IS FURTHER ORDERED:

1. The respondent husband’s Application in a Case filed on 8 December 2019 be dismissed.

2. The applicant wife’s Application in a Case, to the extent it relates to security for costs of the husband’s unsuccessful appeal, filed on 25 February 2020 be dismissed.

3. The applicant wife file any further Application in a Case and supporting affidavit for enforcement of the costs order or associated relief by no later than 4.00pm on 8 April 2020.

4. The respondent husband file any Response and supporting affidavit by no later than 4.00pm on 22 April 2020.

5. There be no order as to costs concerning either the respondent husband’s Application in a Case filed on 8 December 2019 or the applicant wife’s Application in a Case filed on 25 February 2020 to the extent it relates to security for costs of the husband’s unsuccessful appeal.

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

1. On 25 March 2020, two Applications in a Case came before me. The first, filed by Mr Worth (“the father”) on 8 December 2019, sought a review of a decision of a Registrar made on 5 December 2019 in relation to whether certain documents required for an assessment of costs had been filed within the 42 day time limitation (see r 19.24(3) of the Family Law Rules 2004 (Cth) (“the Rules”)). The second, filed by Ms Worth (“the mother”) on 25 February 2020 sought, in summary, an order for security for costs in light of an outstanding costs application flowing from the father’s discontinuance of a Contravention Application and a prior costs order made by the Full Court in her favour (Worth & Worth (No. 2) [2019] FamCAFC 126). I note here that it is only that part of the mother’s application relevant to the already determined costs order which was before me on 25 March 2020.

2. On that day, I made orders which dismissed both those applications and provided for the mother to file any further application and supporting affidavit by 8 April 2020 with the father to respond by 22 April 2020. I indicated I would provide reasons for those orders and these are those reasons.

3. It is first necessary to clarify that, notwithstanding I was one of three judges on the bench which determined the Full Court appeal and made the subject order for costs against the father, these applications came before me sitting in the trial division of the Family Court of Australia and not in the appellate division. That is, neither of the subject applications require the exercise of the appellate jurisdiction and fall to be dealt with in the trial division.

Background

1. Litigation between the mother and the father has been ongoing since February 2014. The first instance litigation culminated in final property and parenting orders made on 13 April 2017 by a judge in the Family Court of Australia (“the Family Court”). The father’s appeal from certain of those orders was heard and dismissed by a Full Court which judgment was delivered on 8 March 2019 (Worth & Worth [2019] FamCAFC 40).

2. Orders were also made for the filing and service of written submissions on the issue of costs. Those submissions were received by the Court and judgment was delivered on 29 July 2019 with orders being made requiring the father to pay the mother’s costs of the appeal on a party and party basis up to and including 18 May 2018 (being the hearing date of the substantive appeal). Those costs were to be assessed, if not agreed.

3. As it turned out, the parties were unable to agree on the amount of the mother’s costs necessitating an assessment of those costs. Under r 19.22 of the Rules, the mother provided to the father an itemised costs account which totalled her party and party costs at $48,833.22. That costs account was sent to the father on 11 September 2019.

4. On 25 September 2019, the father indicated to the mother that he wished to dispute the itemised costs account (pursuant to r 19.23). That dispute was unable to be resolved and, in October 2019, the mother caused correspondence to be sent to the Family Court registry, with both the itemised costs account and notice disputing the itemised costs account, seeking the Court determine the dispute (see r 19.24(3)). It is the filing date of those documents which has given rise to the father’s Application in a Case.

The father’s Application for a review of a Registrar’s decision

1. Section 37A(9) of the Family Law Act 1975 (Cth) (“the Act”) and rr 18.07, 18.08, 18.09 and 18.10 operate in conjunction to provide the framework within which a litigant may seek a review of a Registrar’s decision.

2. Relevant to this review is the operation of r 19.24(3) which provides as follows:

   Assessment of disputed costs

   …

   (3)If the parties are unable to resolve the dispute, either party may ask the court to determine the dispute by filing in the filing registry of the court where the case was conducted the itemised costs account and the Notice Disputing Itemised Costs Account no later than 42 days after the Notice Disputing Itemised Costs Account was served.

3. The father’s case can be summarised in that, on the face of the itemised costs account and notice disputing that account, the filing date is stamped as 22 November 2019. Which, importantly, is outside the 42 day time limit from the date of service of the itemised costs account (being 11 September 2019). Consequently, on the father’s case, the mother ought be precluded from seeking a determination of the costs dispute which, in turn, would absolve the father of the liability associated with that costs order made by the Full Court.

4. At the hearing on 25 March 2020, I proposed a hypothetical to the father that, even if I were with him on the issue of the filing date, would the Court not simply exercise its powers under r 1.14 to extend the time for filing of the documentation to not allow a strict application of the Rules to result in an injustice to the mother by depriving her of her rights under the Full Court order granting her costs. As it seems to me, the father sought only to focus on prior issues or statements made by judges to argue that the mother ought not be permitted to continue her costs assessment application due to a failure to adequately prosecute her claim, but failed to raise any prejudice he would suffer by such an extension. I reject such an argument as baseless but, in any event, that consideration is rendered irrelevant by the findings recorded below.

5. Relevantly, the Registrar recorded the following in her Orders made on 5 December 2019:

   …

   2.That the applicant party seeking costs assessment (Ms Worth) serve upon the other party (Mr Worth) sealed copies of the Notice Disputing Itemised Costs Account and Itemised Costs Account filed with the Court on 8 October 2019, processed by the Court and sealed on 22 November 2019, such service to be effected within 28 days of the date of this order.

6. It seems, then, that the Registrar, upon reviewing the Court file, satisfied herself that the stamped filing date of 22 November 2019 was an administrative error on the part of the Court rather than being reflective of the date the material was submitted for filing with the Court. Of course, documents are taken to be filed under the Rules when received by the Registry, there is no requirement for the formal date stamp or seal to be applied before a document can be considered as “filed” (see r 24.05 of the Rules).

7. However, given a review of a Registrar’s decision is a hearing de novo (see r 18.10; Harris v Caladine (1991) 172 CLR 84 at 95), I must make the decision afresh. To this end, I note that, upon my review of the Court file, it appears that the Registrar may have been mistaken in her reference to 8 October 2019 and that the correct filing date was 10 October 2019. I emphasise here, however, that the two day difference between those dates is immaterial given both fall within the time limit imposed by r 19.24(3) and the sole basis for the father’s argument is that the mother filed her documents outside that time limit.

8. However, for completeness, my reasoning for assessing the date of filing as 10 October 2019 is as follows:

   a)Annexed to the father’s affidavit filed on 5 March 2020, is an email from the mother’s legal representative dated 10 October 2019 which states, amongst other things, “[w]e are now taking the necessary steps to lodge the Itemised Costs Account and your Notice Disputing Itemised Costs Account with the Court”;

   b)Present on the Court file is correspondence from the mother’s legal representative dated 10 October 2019 which states:

   …

   We enclose:

   1.        Itemised Costs Account; and

   2.        Notice dispute Itemised Costs Account.

   We would appreciate if these documents could be filed on behalf of the [mother].

   c)Nowhere on the file or in the mother’s material before me is there a copy of correspondence dated 8 October 2019 or 9 October 2019 (being the date for filing the mother refers to in her written submissions) enclosing the relevant documentation for filing with the Court.

9. I, again reiterate that the difference of two days is immaterial and does not, of itself, justify any correction of the orders as made on 5 December 2019. As for the complaints made by the father against the conduct of the Registrar, those fall away when it is remembered that such a review is a hearing de novo and not an appeal in which such conduct could be relevant.

10. Given the father’s Application in a Case was centred on his contention that the filing date of the relevant documentation was outside the 42 day time limit, and that that issue has now been resolved, his application ought be dismissed.

The mother’s Application in a Case for security for costs

1. This application was made against the background that the father had, initially, consented to the mother retaining approximately $70,000 in her solicitor’s trust account pending the determination of costs payable as a result of the orders made by the Full Court on 29 July 2019.

2. In his material, the father deposes to having made several requests of the mother’s legal representative to release those funds to him. Those requests were denied on the basis that those monies were required to satisfy an outstanding Court order which would be unlikely to be enforceable if those monies were released in circumstances where the father resides outside of the jurisdiction in the United Kingdom and has no assets in Australia.

3. The mother’s Application in a Case sought the following order:

   1.That the Solicitors for the [mother] shall retain in their Trust Account the sum of $70,647.28 by way of security for costs of the husband pending the determination of the Application for Costs sought agianst [sic] the [father] by the [mother] pursuant to an Application for Contravention which was discontinued by the husband and the husband’s costs of the Appeal following the dismissal of his Appeal to the Full Court of the Family Court of Australia.

4. It bears repeating that it is only that part of the mother’s application relevant to the costs order made by the Full Court which came before me on 25 March 2020. In the event, on that day, the mother conceded that her application was misconceived in that an order for security for costs cannot be made to secure funds to satisfy a costs order already made.

5. That is to say, a security for costs order is proactive and not reactive.

6. In light of that concession, the mother’s application ought be dismissed. Though, as raised with the mother at the hearing, the possibility of an order achieving the same effect being made under the Court’s powers of enforcement is a live issue. To this end, the mother sought and was granted the opportunity to file any further application for enforcement she deems appropriate. The father is given the appropriate opportunity to respond should the mother file such an application.

7. In summary, misconceived as it was to attempt enforcement by way of an application for security for costs, that application reflects the mother’s intention to pursue enforcement of the costs ordered in her favour by the Full Court. In my judgment, given that the mother obviously relied upon her lawyers to advance an appropriate application, it would be productive of injustice to the mother to visit upon her the misconceptions of her legal representation and justice requires that she have an opportunity to frame appropriate enforcement proceedings.

8. Whilst the father agitated complaints at the hearing as to this indulgence being granted to the mother, the fact is he has not agreed to pay anything to the mother towards the costs she incurred in successful defending his appeal. The risk that the father may achieve avoidance of his liability for costs as ordered by the Full Court looms large.

Costs

1. The mother made an oral application for her costs of responding to the father’s Application in a Case on the basis that the father had been wholly unsuccessful. However, I see no reason and heard no cogent submissions on why the Court should depart from the presumption under s 117(1) that each party bear their own costs. Indeed, the mother was wholly unsuccessful on her application.

2. I make no order as to costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 April 2020.

Associate: 

Date:  16 April 2020