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  • Unreported Judgment

Helen Stanley Mann v Adrian Smith Mann


[1975] FC 29


Mat. Pet. No. 1231 of 1968











Judgment delivered by Matthews J., on 3rd October, 1975 Stable J. and Dunn J., concurring with those reasons.





Mat. Pet. No. 1231 of 1968



(Petitioner) Appellant



(Respondent) Respondent


The parties to this appeal were husband and wife, the latter being the petitioner for divorce. The Petition was filed on the 19th December, 1968 and the decree was sought by it on the ground of cruelty. Orders were also sought for custody of the children of the marriage, maintenance for the petitioner and the children and an order that the respondent settle upon the petitioner his interest in some 400 acres of land which was then owned by the petitioner and the respondent as joint tenants. By his Answer the respondent sought dismissal of the petition but said that in the event of the court's granting the decree of dissolution of the marriage he would consent to an order for payment of maintenance in respect of one of the children in the sum of $8.00 per week and he further sought an order that the petitioner's interest in the land to which I have referred be settled upon him. The Answer was filed on the 19th November, 1969. On the 18th June, 1970 the solicitor for the respondent (who became the respondent in this appeal) wrote to the solicitors acting for the petitioner (now the appellant) and after referring to an offer that the respondent pay maintenance for the appellant at the rate of $20.00 per week and for the child Sean at the rate of $10.00 per week, also indicated his willingness to transfer to the petitioner 240 acres of the land to which I have referred. The letter went on to say that if these offers were accepted the respondent did not propose to contest the issue of cruelty which had been raised on the pleadings. The letter then proceeds:

  I note that this offer has been rejected except with respect to the access to Sean.

Mr. Mann has requested me to submit a further offer to you. He will pay maintenance of $40.00 per week for your client and Sean, and with respect to ‘Innisfree’, he will retain only 100 acres of the property around the house (this would be subject to survey and subdivision), and he will pay all your client's costs of the Action and the issue of cruelty will not be contested. However, would you please advise me as soon as convenient whether this offer is acceptable to Mrs. Mann.

The first offer was and foregoing offer is without prejudice to my client's submission that he is not guilty of cruelty to Mrs. Mann and that he is entitled to a transfer to a transfer to him of the whole of ‘Innisfree’ and that he is liable for no greater payment in respect of maintenance than a reasonable sum for Sean and is made only for the purpose of avoiding the possibility of the payment of the crippling costs of a defended matrimonial action from a husband's point of view whether successful or otherwise.

My client feels that in all the circumstances this is a most generous offer and if not accepted it is intended to produce a copy of this letter to the judge at the Trial of the action for the purposes of an argument that Mrs. Mann is not entitled to an Order for payment of her costs beyond an amount which would be recovered on taxation for an undefended divorce from the date hereof with consent orders in relation to matters of ancillary relief.”

The threat contained in the last of the quoted paragraphs seems to me to have relevance only if when the divorce was granted orders had been made not more favourable to the appellant than those contained in the “further offer”.

Although the suit did ultimately proceed as an undefended suit the decree nisi provided for ancillary matters by ordering apart from custody and access, maintenance for the appellant in the sum of $20.00 per week until the 1st July, 1971 and thereafter at the rate of $30.00 per week and for maintenance of the boy Sean at the rate of $20.00 per week. In respect of the land the subject of the claims for settlement of property the court ordered that 80 acres of it be transferred to the respondent and the balance of 320 acres be transferred to the appellant. It is obvious that the offers contained in the letter of 18th June, 1970 written on behalf of the respondent were not so far as maintenance or settlement of property are concerned acceptable to the appellant and thereafter the parties were preparing for trial. Under date 26th August, 1970 the solicitor for the appellant wrote to the solicitors for the respondent a letter which read:

  We refer to your request for discovery in this matter and should be pleased if you could let us know the type of matters in which discovery is required.

If discovery is confined to matters referred to in the pleadings or Affidavits, it would considerably reduce the amount of work involved, but if general discovery is required relating to all aspects of the parties' matrimonial life, we feel that the documents could be voluminous and the costs astronomical. However, our client would be prepared to grant discovery in connection with any desired aspect of the matter, but we felt that we should ascertain from you whether discovery of particular documents is required before becoming involved in possible unnecessary work.

Our client wishes the Petition to be heard as soon as possible and we must therefore request you to let us have your reply to this letter by return mail.”

And under date the 3rd September, 1970 wrote to the solicitors for the respondent a further letter which read as follows:

  We refer to the writer's recent conversation with you in which you advised that your client was not prepared to particularise so far as discovery is concerned. We are therefore proceeding to prepare an Affidavit on behalf of our client setting out all of the documents relevant to the proceedings and which are properly discoverable by your client. Mrs. Mann has to Obtain some of these from her Accountant and also from Messrs. Eckhardt & Atthow so that it may be a fortnight or so before we are able to complete the preparation of the Affidavit.

We shall endeavour to have the document prepared as quickly as possible and shall then communicate with you regarding the exchange of Affidavits.”

Although something could be made of the reference in the first of these two letters to the request that the respondent's solicitor advise “Whether discovery of particular documents is required” I think that taken as a whole the letter indicates a willingness to limit the scope of the Affidavit of documents and I think it apparent from the further letter of 3rd September, 1970, that co-operation in this behalf was not forthcoming from the solicitors for the respondent. I have dealt with the correspondence at some length because this appeal was an appeal from decisions of The Chief Justice when asked to review certain items in the party and party Bill of Costs which subsequent to the divorce had been taxed; the correspondence was and is relevant to the decision upon some of the items. His Honour dealt with many more items than those with which we are concerned but the ones subject to appeal may be dealt with conveniently in groups. The first group comprising items 52, 53 and 54 in the bill; the second group being items 327, 328, 329 and 355; Items 415, 416, 417 and 418 comprise the third group and item 436 the remainder of those the subject of appeal stands by itself.

Items 52, 53 and 54 are all concerned with the supply by the solicitors for the appellant to a solicitor who had previously acted for both appellant and respondent of a copy of an agreement which had been made between the appellant and respondent at an earlier stage, a copy of such agreement having been asked for by the solicitor on the instructions of the respondent. All of those items were disallowed. The Chief Justice refused to alter the decision of the Taxing Master in respect of them the ground of disallowance being that the items were not recoverable as party and party costs, the solicitor concerned not being engaged in the action. He thought, therefore, that these items could only be regarded as solicitor and client costs. I think that the Taxing Master misapprehended the position because the solicitor concerned was not in respect of these items performing any service for the appellant. I think that, before us, the position was fairly summarised by Counsel for the appellant when he said that the items should have been considered on a similar basis to that which would have applied if the solicitor on the record for the respondent had asked for a copy of the particular agreement. For these reasons I think that in respect of the three items I have been discussing the appeal should be allowed.

Items 327, 328, 329 and 355 are all concerned with discovery. 327 and 328 refer to the perusing of letters between the parties and other letters which subsequently were included in the brief. 328 was expressed as perusing other documents for discovery. 329 was for drawing an Affidavit of documents and 355 for perusing files concerning land and other dealings of the parties and which apparently contained 3,317 folios. In the event the Taxing Master allowed for the perusals in respect of items 327 and 328 sums of $21.40 and $123.20 instead of the claimed amounts (which we were told were claimed in accordance with a scale generally applied to perusals) of $42.80 and $173.20. Although the amount claimed for drawing the affidavit of documents was originally halved by the Taxing Officer it was subsequently allowed by him when objection was first taken to his decision. It was then treated as if it had not been allowed, and in fact the Chief Justice dealt with it on this basis and said that he was not prepared to say that the Taxing Master was wrong when he reduced the amount claimed in respect of it. I do not think anything now turns upon this because, in my opinion, there was no satisfactory basis for reducing the amounts in items 327, 328 and 329. The Taxing Master referred to the perusals in 328 as not being necessary or proper and said of the perusals in item 327 that they arose as a “matter of overcaution.”

It is, of course, incumbent upon a solicitor for a party to consider carefully and with caution the documents which may subsequently be incorporated in the affidavit of documents and it must be remembered that documents to be produced include all the documents relating to matters in question in the action and others which “may either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.” (Compagnie Financiere du Pacifique v. Peruvian Guano Company (1882-1883) 11 Q.B.D. 55 per Brett L.J. at p. 63.)

In dealing with these items the Chief Justice said:

“The petition was grounded on allegations of cruelty. The Answer was filed on the 19th November, 1969. It admitted much that was alleged in the petition but denied the cruelty. However, on 18th June, 1970 the solicitors for the respondent made an open offer with a view to resolving the disputes between the parties; and after the writing of this letter, it was clear that any attempt by the respondent to dispute the issue of cruelty would be fraught with serious difficulty; the question of custody was for practical purposes dead; and the issue remaining alive was, from a practical point of view, maintenance associated with a property settlement.”

Despite the difficulty which may have faced the respondent after the writing of that letter to dispute the issue of cruelty it seems to me important to remember that he did, until shortly before the trial, continue to do so and made no attempt through his solicitor to restrict the scope of the discovery which he sought. Under these circumstances it seems to me that the perusals, accepting that they were made, were not matters of over-caution or unnecessary and that the arbitrary reduction of the amounts in the three items should be set aside and the items taxed as claimed. I grouped with these three items, item 355 and I think that there is no room for reversing the Taxing Master's decision in respect of it. Apparently many files were perused but I assume that, to the Taxing Master who saw the files, it was patent that the nature of many of the documents in those files showed the absence of necessity of perusing them. Had there been some claim in form of an item for looking at the files and perusing particular documents in the files I would have thought it proper to allow for the doing of this, but, of course, I am dealing with the item as it appears in the Bill.

The remaining items are small in amount but the third of the groups which I made is concerned with the ordering and paying for and perusal of a transcript of the evidence which the petitioner had given in an early interlocutory application relating to an application for costs de die in diem. These items were disallowed because the Taxing Master considered that they were not costs incurred in the cause but again one comes back to the position which resulted from the respondent's continued opposition to the grant of the decree and the continuing issues of maintenance and settlement of property. In my opinion it was quite reasonable, in those circumstances, for the solicitors for the appellant to wish to brief Counsel with a transcript of the evidence which she had earlier given, evidence which dealt with her means at the time the application was before the court. I would allow the items, therefore, as claimed. The final item the subject of the appeal is item 436 and I would not reverse the decision of the Taxing Master to disallow it. The Golden Casket result slip the subject of this item was not admissible in any form; it may have confirmed the appellant's instruction to the effect that the respondent had won a prize in the Golden Casket Lottery but it seems to me that for the purposes of cross-examination of the respondent such confirmation was unnecessary. For these reasons I would allow the appeal to the extent which I have indicated in the course of them.


Editorial Notes

  • Published Case Name:

    Helen Stanley Mann v Adrian Smith Mann

  • Shortened Case Name:

    Helen Stanley Mann v Adrian Smith Mann

  • MNC:

    [1975] FC 29

  • Court:


  • Judge(s):

    Stable J, Matthews J, Dunn J

  • Date:

    03 Oct 1975

Litigation History

No Litigation History

Appeal Status

No Status