Zuccatelli and Baggio

[2012] FamCA 1111

FAMILY COURT OF AUSTRALIA

ZUCCATELLI & BAGGIO [2012] FamCA 1111

FAMILY LAW – Procedural Orders made when self-represented applicant to defacto property claim has failed to comply with some orders and failed to appear.

APPLICANT: Mr Zuccatelli

RESPONDENT: Ms Baggio

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4471 of 2011

DATE DELIVERED: 21 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr MacFarlane

SOLICITOR FOR THE RESPONDENT: Lewenberg & Lewenberg

Orders

IT IS ORDERED THAT

1. This matter be listed before me for mention at a time to be fixed on 2 August 2012 and not before the conclusion of any conference that the parties have with Registrar Riddiford.

2. The time for compliance by the applicant with paragraph 3 of the Order made on 14 October 2011 be extended to 12.00 noon on Monday 18 June 2012 NOTING THAT the applicant should have filed the documents required of him by early January 2012.

3. The practitioners for the respondent be responsible for filing a copy of the report by the single expert in relation to identification of handwriting with the Court promptly upon receipt, provided that such document need only have a cover sheet and need not be annexed to an affidavit at this stage.

4. Subject to further order of the Court and to the applicant having complied with paragraph 3 of the Order made on 14 October 2011 and the evidence of the single witness handwriting expert being to hand, by not later than 9 July 2012 the parties do all acts and things necessary to confer with Registrar Riddiford at 11.00 am on 2 August 2012 for the purpose of making a genuine effort to reach agreement on matters in issue between them and, in the absence of being able to resolve all of the matters, to identify what issues remain unresolved, to isolate the evidence relevant to those issues and, at the direction of Registrar Riddiford, to complete any table or balance sheet and, for the avoidance of doubt, in the event that the matter does proceed to a final hearing this conference take the place of any conciliation conference which would otherwise be ordered by the Court.

5. Any party who proposes to seek any orders against a superannuation trustee do all acts and things necessary to ensure that the superannuation trustee has been accorded procedural fairness in relation to the order proposed to be sought and that party be in a position to prove that procedural fairness has been accorded if called upon to do so.

6. At the mention before me on 2 August 2012, I reserve liberty to the parties to make any of the following applications:-

   (a)       for directions for trial;

   (b)       to dispense with the discrete hearing about the effect of the agreement with the effect that there would be only one further defended hearing in this matter;

   (c)       in the event that the applicant has failed or neglected to comply with paragraph 3 of the Order made on 14 October 2011 or does not attend Court for the mention, that the applicant’s application filed 23 May 2011 (and any amendment thereto) be dismissed with the effect that the proceedings would be at an end; and

   (d)       for costs or security for costs in any form including in the form of a flagging order against any superannuation interest held by either party (subject to the procedural fairness provisions in paragraph 5 above.

7. IT IS DIRECTED THAT a sealed copy of this Order be sent to:-

   (a)       the applicant at B Street, Suburb C;

   (b)       the applicant’s email address, being …; and to

   (c)       the applicant’s former solicitors, Livaditis & Co;

   for the purpose of bringing the further hearing dates and dates of compliance to the attention of the applicant.

8. The reasons for judgment this day be transcribed and when settled be sent to the respondent and to the applicant.

9. IT IS REQUESTED THAT the applicant’s previous solicitors, Livaditis & Co … do all acts and things necessary to bring any provisions of this Order and my reasons for decision to the attention of the applicant as soon as possible.

10. I reserve to the parties liberty to arrange to have this matter listed before me for directions by telephone for mention in the even that the applicant fails or neglects to comply with paragraph 3 of the Order made on 14 October 2011 as extended pursuant to this Order.

11. I reserve the costs of the respondent of and incidental to this day.

12. Paragraph 4(c) of the Order made on 14 October 2011 be varied to dispense with any need for the applicant to acknowledge the terms and conditions of the engagement of the single expert witness.

13. Paragraph 4(d) of the Order made on 14 October 2011 be varied so that Mr D, of E Pty Ltd, be and is hereby at liberty to attend Court and upon showing identification to remove from the precincts of the Court:-

    (a)       the documents which have been produced on subpoena;

    (b)       the Deed of Agreement dated 18 February 2008; and

    (c)       the original of any documents on the Court file which bear a signature of the applicant, subject to a photocopy of all such documents being retained by the Court and insofar as court documents are concerned  being placed in the Court file in same place as the originals.

14. IT IS DIRECTED that my Chambers give such support to the Registry as is necessary to produce the photocopy documents expediently for Mr D.

15. IT IS FURTHER DIRECTED that Exhibit “W1” be copied and a copy remain on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zuccatelli & Baggio 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 MELBOURNE

FILE NUMBER: MLC 4471 of 2011

Mr Zuccatelli

Applicant

And

Ms Baggio

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me as the first day of the hearing of proceedings between Mr Zuccatelli as applicant wherein he claims relief, presumably pursuant to section 90SM of the Family Law Act, and Ms Baggio who responds to that claim by seeking a dismissal. These reasons explain why I have made certain orders and directions today in the absence of the applicant, Mr Zuccatelli.

2. The proceedings were last before Kent J on 14 October 2011, when his Honour carefully considered the matter, delivered some reasons for judgment and made a detailed order requiring the parties to put forward further particulars of contentions of fact and law in relation to their case and ordering a discrete hearing in relation to the authentication and validity of an agreement purportedly executed by the parties on 18 February 2008. 

3. The matter was listed to me when it was taken out of the pool of cases awaiting allocation of a hearing.  The parties were notified by mail on 1 May 2012 of today’s hearing, which was to commence at 9 am.  The applicant did not appear.  An indulgence was granted, without objection, until 9.30 a.m. in case the applicant, who now represents himself, was running late.  I commenced after 9.30 am, at which time the applicant had still not attended court.  Mr MacFarlane, who appears for the respondent, informed me that his client had looked in the precincts of the court and not recognised the applicant as being present.  The applicant was called at the door of the court;  there was no response.  I directed the matter be stood down whilst a telephone call was placed to a telephone number for the applicant, provided by the respondent, which was …, but I’m informed that the call went to a message facility, upon which a message was left requesting that the applicant call the National Enquiries Centre. 

4. I am satisfied that everything that can be done has been done to bring today’s hearing to the attention of the applicant, Mr Zuccatelli.

5. The most significant property for division between these parties is, in effect, the proceeds of sale of a property owned by the respondent, which was inherited by her and which she ultimately sold she has reinvested some $830,000 to acquire an interest in a further real property the purchase of which is to be completed soon.  She has a modest superannuation interest.  The respondent has little in assets.  He is apparently a builder or maintenance worker in self-employment.  He has a superannuation interest of about $75,000.  I’m advised that more than once he has been incarcerated for driving under the influence of alcohol and faces further similar charges, from which counsel for the respondent asked me to infer that he has not likely accumulated any real or personal property since the matter was last before the court, when his asset holding was modest.

6. Significantly, it is alleged by the respondent that she and the applicant executed an agreement in which, amongst other things, the applicant acknowledged that he made no significant contribution to the respondent’s real property and has no interest in it.  However, the applicant denies that he made the agreement or that the signature appearing on it is his signature.

7. As indicated, Kent J made detailed orders about the future conduct of this case.  Paragraph 2 of the order of 14 October 2011 required the respondent to file and serve an affidavit annexing a pleading in the form of points of claim and setting out every fact and particular upon which she relies and the relief that she seeks with respect to the discrete issue of authentication and enforceability of the alleged agreement.  The respondent did not comply with that order within the specified 21 days, but I am told that she did file an affidavit on 13 December 2011. 

8. Paragraph 3 imposed a similar obligation on the applicant to set out those particulars and also to respond to the evidence of the respondent.  He was given 21 days in order to do so.  He has failed or neglected to file any such document.  On my calculation, by early January 2012 that document should have been filed having regard to the late filing of the respondent’s evidence. 

9. On 7 February 2012 a notice of ceasing to act was filed and served by the applicant’s solicitors, Livaditis & Co.  It specifies the last known residential address of the applicant as unit B Street, Suburb C.  It also provides an email address.  In relation to when the matter was next listed before the court, it correctly recites that:

   The proceeding has been adjourned to the registry for the fixing of a date for a directions hearing before a registrar and for the making of directions for the hearing of the discrete issue as per paragraph 6 of the orders made on 14 October 2011. 

10. Clearly the document that was sent to the applicant by his solicitors did not give today as a hearing date.  That was notified to the parties by letters sent on 1 May. 

11. I am informed by counsel for the respondent that recently the applicant has complied with paragraph 4(f) of the order made on 14 October 2011.  That order provided that the parties shall, at first instance, meet in equal shares the single handwriting expert’s reasonable fees and expenses.  The expert appointed is Mr D.  He required the sum of $1875 from each party.  The respondent paid hers contribution promptly.  The applicant paid last Wednesday, or some of it anyway.

12. One half of the reasonable fees for Mr D, who trades as E Pty Ltd, is $1875.  Inquiries made today have resulted in me being informed that the moneys received by Mr D from the applicant last Wednesday were, in fact, $170.45 short of the half share. 

13. There are also two outstanding matters in relation to the instruction of Mr D. 

14. First, Mr D, by letter dated 22 December 2011 wrote to the practitioners for the applicant, specifying the terms and conditions of his engagement and requiring that an acknowledgement of those terms be signed and returned to him.  I have been handed some documents which together I will mark exhibit W1, and direct a copy remain on the court file.  That includes Mr D’s letter dated 22 December 2011.

15. By letter dated 18 January 2012 a copy of the signed acknowledgement from the respondent’s practitioners was forwarded to the applicant’s solicitors and, in due course, sent to Mr D.  However, to date, Mr D has not received an acknowledgement by the applicant or on his behalf of the terms and conditions. 

16. In terms of the acknowledgement of the terms and conditions of Mr D’s engagement, I will dispense with further compliance with paragraph 4(c) of the order of 14 October 2011, which removes the need for Mr D to receive anything further from the applicant before commencing his report. 

17. I am informed that Mr D will proceed to prepare the report if he is in funds, and that his report would be available in the first week of July 2012.  By that stage the applicant should have complied with paragraph 3 of the order made by Kent J on 14 October 2011 and the matter can proceed to a conciliation conference with Registrar Riddiford on 2 August 2012. 

18. The conciliation conference with Registrar Riddiford is valuable.  The parties ought to make the most of it but must have to hand at least the affidavits required by Kent J and Mr D’s report.

19. Second, it is Mr D’s stated preference that he be responsible for collecting the original agreement and any other documents from the court, instead of the provisions at paragraph 4(d) of the order of 14 October 2011, which provided for the respondent, or presumably her practitioners, to remove the document from the court for the purpose of giving it to Mr D.  It does seem to me that the documents should pass through as few hands as possible, and so I will accede to the oral application made by counsel for the respondent that Mr D be at liberty to remove the documents from the court in lieu of the respondent or her solicitors.

20. If the applicant has not complied with paragraph 4 of Kent Js order by 18 June 2012, then I may vacate the conciliation conference with Registrar Riddiford and relieve the parties, but, in particular, the respondent, of being represented for that court event.  For that purpose I will provide liberty to each party to contact my associate, by correspondence which is copied to the other side.  In the event that there has not been compliance, and the matter can be listed before me for further consideration by telephone.

21. Mr MacFarlane, counsel for the respondent, has informed the court that costs are a very real issue for the respondent.  The respondent contends that the claim of the applicant is without substance but that she is the one who has been compliant and who continues to pay costs to pursue the applicant’s claim when he does little of what he is required to do.  I have been conscious to limit the respondent’s further exposure to costs as much as possible at this stage.  The respondent seeks costs of this day.  However, I have concerns about whether the applicant was notified of today’s date, although it would seem, if he has taken action recently with Mr D, that he likely was. 

22. I will reserve the costs.  The costs according to scale seem to be about $1025 for counsel and $450 for solicitor.  The costs actually claimed are $1850 for counsel and $660 for solicitor.  The fact that they are reserved entitles the respondent, on the next day, or whenever, to seek the costs be paid on a solicitor/client or indemnity basis rather than in accordance with the scale.

23. In requiring that the order and the reasons for judgment be sent to the applicant’s former solicitors, I will direct that they bring the documents to his attention by sending them to his last known address.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 May 2012.

Associate: 

Date:  2 July 2012

(Postscript)
Following the Court rising, the applicant telephoned the Court and advised the Associate to Bennett J that he had been interstate on holidays, just returned, just opened his mail and received notice of the hearing date.  The applicant was advised to look at the order made today.  He confirmed that his email address is correct.