Aheb and Aheb (No. 3)
[2009] FamCA 524
•12 June 2009
FAMILY COURT OF AUSTRALIA
| AHEB & AHEB (NO. 3) | [2009] FamCA 524 |
| FAMILY LAW – PROPERTY – Application to re-open – COSTS |
| Family Law Act 1975 (Cth) |
| Murray v Figge (1974) 4 ALR 612 Re Australian Meat Industry Employees Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 Summitt v Summitt (re-opening) [2009] FamCA 365 Gelley v Gelley [1992] FLC 92-290 Smith v New South Wales Bar Association (1992) 176 CLR 256 Urban Transport Authority v Nsuiser (1992) 28 NSWLR 471 EB v CT (No 2) [2008] QFC 306 |
| APPLICANT: | Ms Aheb |
| RESPONDENT: | Mr Aheb |
| FILE NUMBER: | MLF | 2471 | of | 2006 |
| DATE DELIVERED: | 12 June 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 2 – 4 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr D. Carlile |
| SOLICITOR FOR THE APPLICANT: | Jane Baldwin |
| COUNSEL FOR THE RESPONDENT: | Ms O Nikou SC |
| SOLICITOR FOR THE RESPONDENT: | JK Lawyers & Co |
Orders
The Application in a Case filed by the Husband on 11 June 2009 is dismissed.
The Husband pay the Wife’s costs of today fixed in the sum of $3500.00, payable as an amount additional to any amount otherwise ordered to be paid to her pursuant to the orders made consequent to the trial in these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Aheb & Aheb (re-Opening) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2471 of 2006
| MS AHEB |
Applicant Husband
And
| MR AHEB |
Respondent Wife
EX TEMPORE
REASONS FOR JUDGMENT
In November of last year, I commenced hearing the trial of this action as a judge visiting this registry from another registry. The trial did not conclude at its initial hearing and was scheduled to be continued at the earliest opportunity upon which I could again travel to this registry. That resumed hearing concluded before me on 4 June. Judgement was reserved.
The husband was cross‑examined extensively on each of those two separate occasions.
Yesterday, a week after the conclusion of the second part of the trial, an application was made on behalf of the husband which, in terms, seeks an order that, "Leave of this Honourable Court be granted to reopen the case in order to lead evidence of the expert witness, neuropsychologist, Ms [V]."
An unsealed copy of that application and an accompanying affidavit was served upon the solicitors of the wife yesterday and the matter was listed for urgent hearing before me this morning.
The application was supported by an affidavit by the solicitor for the husband, Ms Khoo. It is significant, I think, to summarise the terms of that affidavit.
At paragraph 2, Ms Khoo deposes among other things that she has had "limited opportunity to interview my client, [Mr Aheb], who is the respondent husband in this application, in person in order to prepare his family law matter for trial …"
The husband, on any view of the evidence, has spent a significant proportion of his time, and probably the great majority of his time, living in Egypt. It is clear that, prior to the trial commencing in November, and again prior to its resumption in June, that the husband had continued residing in Cairo.
Ms Khoo goes on to depose that the "next time" that the father attended in person, after an earlier attendance which occurred on 19 August 2008 was -
“… to provide instructions to junior counsel, Mr David Carlile and me ... on or about 13 November 2008 at the chambers of Mr Carlile two working days before the trial which was scheduled to proceed on 17 November 2008.
Ms Khoo deposes that the husband then flew back to Cairo on 30 November 2008.
The next occasion that the husband attended in person upon Ms Khoo, again, apparently, with counsel, Mr Carlile, was on 1 June 2009. Ms Khoo then deposes that all other correspondence between she and her client had been via electronic mail and "very occasionally via long-distance telephone". She deposes, “Usually [the husband’s] responses to my long messages via electronic messages had been brief.”
During the November 2008 proceedings, which proceeded over a number of days, the husband was at all times represented by Ms Khoo and, as his counsel, by Mr Wilson QC with junior counsel, Mr Carlile.
I had an opportunity to observe the husband in the witness box over a considerable period of time during the earlier part of the hearing in November.
Ms Khoo deposes in respect of the resumed hearing in June of this year:
“Every day of the trial from 1 June to 4 June 2009 [the husband] consistently complained that he had not received any requests from me to provide supporting documents for litigation matters and business dealings that he claimed were going on in Cairo, Egypt. At each instance my response was that I had been making some requests for documentary evidence regularly via electronic mail and occasionally by telephone since December 2008 and each month thereafter. I was concerned he did not appear to have any recollection of the numerous requests that I have made of him to provide documents relevant to this case. He consistently insisted that he received the first of such requests by me only three days before the trial.”
It is significant to point out that the failure by the husband to disclose in anything like a sufficient manner has been a live issue in these proceedings for a considerable period of time.
It was certainly a live issue in the lead-up to the first part of the trial which occurred in November 2008.
It was certainly a live issue in proceedings of various types which occurred in this court prior to November 2008.
There can be little doubt that, since proceedings were commenced by the wife in August 2006, the failure by the husband to disclose documents and/or provide information relevant to his financial affairs and those of the parties (and, in particular, financial transactions said to have occurred in Egypt) has been a live issue.
Ms Khoo goes on to depose at paragraph 7 of her affidavit:
“On the evening of 4 June 2009 after the trial had concluded, [the husband] spoke with me via telephone and during the conversation, he was adamant that there had been no trial in November last year. He insisted the only hearing last year occurred at the end of December 2008, wherein no-one appeared for him. This made me extremely concerned that he had a mental disability that was affecting his ability to recall dates and events.”
In paragraph 8, Ms Khoo deposes:
“I was present in court on each day of hearing and I had observed [the husband’s] inability to answer questions with any precision and his extremely poor ability to recall dates and events.”
Ms Khoo then goes on to depose to conferring with counsel the result of which was the instant application.
The affidavit of Ms Khoo deposes, hearsay, to a report prepared by Ms V which, it is said, is the substance of the evidence sought to be adduced at the re-opened hearing.
A number of observations should be made about that report.
First, whilst on its face Ms V indicates that she is a "clinical neuropsychologist" and "clinical psychologist" and refers to having "BSc Hons, Mpsych (Clin) (Neuro) (MAPS)", nowhere in that report does Ms V explain what those qualifications mean or where and when they were obtained.
Furthermore, nowhere in that report does it appear, and nowhere in Ms Khoo's affidavit is it deposed, as to the experience and training otherwise possessed by Ms V. Each of those matters are of course directly relevant to the issue of expertise for the purposes of the Evidence Act.
Next, the report lists as sources of information "two letters from Dr [C] (GP), both undated", as well as three separate letters from "Dr [A] (GP in Cairo) dated respectively 20 February 2008, 1 March 2008 and 2 June 2008". None of those letters are annexed to Ms V’s report.
Furthermore, apart from a reference at page 2 of the report where Ms V says, “His GP Dr [C] also reported acute anxiety due to his marital and financial difficulties in the past, but otherwise [the husband] stated he had no psychiatric history”, nowhere in the report is there any reference by Ms V to what any alleged GP themselves said about the husband's health.
The only references made by Ms V in the report to that topic are references to what the husband said of what his GP or GPs had said to him.
The thrust of the application for reopening derives from an opinion, or series of opinions, expressed by Ms V based partly on information reportedly received in the manner just indicated, information from the husband's solicitor, and an interview, history and testing of the husband conducted by Ms V.
Ultimately, the application has as its source a number of opinions, including:
“... I would advocate that [the husband] have help sorting out his financial picture with his legal cases both here and in Egypt. As I did not specifically assess this, I am not sure if he would meet the criteria for an application for guardianship from the Victorian Civil and Administrative Tribunal (VCAT). At this point, perhaps a better option may be a legal advocate, but I'm unsure of any organisations that can provide this service.”
Ms V goes on to say:
“It was apparent that his pride was negatively affecting his ability to testify in his best interest as he refused to discuss issues that he found breached his sense of pride and privacy. If possible, hearings should be conducted with as few people present as possible to minimise his sense of invaded privacy and humiliation. This may increase his willingness to provide relevant information and context in his case.”
Ms V goes on to suggest that the husband be reviewed by a geriatrician or old-age psychiatrist "with the view of managing his vascular factors and slowing his cognitive decline as much as possible". She goes on:
“[The husband’s] cognitive abilities will almost certainly continue to decline and he will need support as this progresses. This will be very difficult for him to accept due to his strong sense of pride and should be handled delicately by anyone involved.”
Submissions on behalf of the husband in support of the application provided initially in writing by his counsel, Mr Carlile, assert as follows:
“(3) the husband submits that the evidence of the neuropsychologist:
(i)is material in considering the evidence of the husband as to credit in circumstances where credit is a major issue in the trial;
(ii) upon being accepted affects the result by:
(a) bolstering the husband's credit;
(b)reduces the likelihood of the court drawing adverse inferences by reason of his failure to specifically recall dates and events;
(c)reduces the likelihood of the court drawing adverse inferences against him by reason of his failure to adequately disclose all relevant documents;
(d)makes it more likely that the court will not infer, by reason of his memory failure and inadequate disclosure of documents that assets exist other than those already disclosed;
(e)makes it more likely that the court will accept that moneys had been legitimately expended by him in pursuit of joint projects of the parties.
(iii)the evidence could not with reasonable diligence have been found before because of the nature of the disability
(i)upon the applicant having an opportunity to cross‑examine the expert, no prejudice can otherwise be shown.”
The written submissions on behalf of the husband refer to the principles applicable to applications of this type and cite in support two decisions, Murray v Figge (1974) 4 ALR 612 and Re Australian Meat Industry Employees Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491 particularly at 493.
In opposing the application, Senior Counsel for the wife refers to an earlier decision of mine in Summitt v Summitt (re-opening) [2009] FamCA 365 delivered on 8 May 2009 and counsel specifically relied on the principles outlined in that case. It seems convenient to repeat them, as they, in my view, apply to the decision before me.
In a case involving an application for settlement of property, it can be said that common law principles govern applications to reopen in this court (see eg Gelley v Gelley [1992] FLC 92-290 and the cases there discussed). Those principles make it clear that the granting of leave to reopen is discretionary. That discretion is guided by the interests of justice. The essential question is: is the court more able to do justice in the facts and circumstances of the particular case if the application is granted (see eg Smith v New South Wales Bar Association (1992) 176 CLR 256; Urban Transport Authority v Nsuiser (1992) 28 NSWLR 471 at 478 and EB v CT (No 2) [2008] QFC 306).
In cases where reasons for judgment have not been delivered, the High Court has held that the primary consideration should be embarrassment or prejudice to the other side (see Smith above at 266-267).
A recent decision of the Supreme Court of Queensland, EB v CT (No 2) above involved an application for property settlement under the then applicable state law with respect to de facto relationships. In that case, Applegarth J summarised, by reference to earlier authorities the (common law) principles applicable to a reopening as follows:
“[2] The guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application. Reference is made in Finborough Investments Pty Ltd v Airlie Beach Pty Ltd and in the cases referred to in it to the need for finality of litigation.
[3] In Smith v New South Wales Bar Association, the High Court stated that different considerations may apply depending on whether the case is simply one in which the hearing is complete or one in which reasons for judgment had been delivered. As to the former situation, the court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.
[4] In Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered was said to be as follows:
(a) the further evidence is so material that the interests of justice require its admission; (b) further evidence if accepted would most probably affect the result of the case; (c) the further evidence could not by reasonable diligence have been discovered earlier and (d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.”
In what I, with respect, consider to be an important passage within that judgment, his Honour held that:
“[5] Reference by the High Court to prejudice to the other party and the guiding principle of the interests of justice require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by delay in the delivery of an expected judgment at the end of stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice is served by finality in litigation, particularly where prolonged litigation imposes a strain on personal litigants.”
I consider this passage to be important because I consider it to be particularly true of litigation in this court generally. I also consider it to be specifically true in respect of this case. This case has now been ongoing for almost three years. The interests of justice demand finality to it at the earliest possible opportunity.
The delay in this particular case has been exacerbated by the unfortunate necessity to have a period of time elapse between the first part of the hearing and the second part of the hearing which concluded a week ago.
The parties are both elderly. They have been involved in litigation for a long time. Also, the process of that litigation has involved numerous interim applications and the continual search by the wife for information and documents which any reference to the applicable authorities reveals are at the core of a party's obligations when involved in financial proceedings in this court.
There is evidence before me of the cost of litigation in both its financial and emotional terms. I have not the slightest doubt that the litigation has been stressful to both parties. I equally have no doubt whatsoever that the litigation has been particularly stressful for the wife, as is submitted on her behalf by her counsel. I have in mind specifically what the High Court said in Smith, particularly as that passage has been referred to by the Queensland Supreme Court as earlier referred to.
The application by the husband should be given further context.
It involves an application to lead evidence from a person whose report indicates that she is a “clinical neuropsychologist” and “clinical psychologist”. Some criticisms were made by Senior Counsel for the wife in respect of the method of the obtaining of the report. In particular, it is submitted that the report writer was "not given an open brief". Leaving aside any contested issues about the nature and extent of the briefing process of Ms V, there is little doubt that Ms V’s is -contrary to the usual situation which is intended to apply in trials in this court (see Chapter 15 of the Family Law Rules 2004) - a report prepared at the behest of one of the parties to litigation. It is a report, then, from someone who is other than a single expert.
Ms Nikou SC, counsel for the wife, says that, although specific instructions have not yet been received, it is highly likely that the wife, if the application to reopen is successful, would seek to obtain her own expert evidence. In the light of the history of this litigation and the circumstances in which the report was obtained on behalf of the husband, that is an unsurprising submission.
If that is the case, then it is accepted that the best-case scenario for a reopened trial would be the cross‑examination of Ms V which might take approximately half a day. If the situation develops (which Ms Nikou submits and which I accept is a more likely scenario) and two experts are involved, the possibility is raised of the proceedings extending significantly beyond half a day. They might, for example, include (as was submitted) an application to recall the husband in respect of evidence thrown up by the additional expert evidence.
I think it highly likely that significant prejudice would be created to the wife in the event that the proceedings were reopened in the manner suggested I am bound by authority, and would in any event be persuaded, that this is a very significant matter in the exercise of discretion to reopen in the circumstances of this case.
I should add that some prejudice may also attend a reopening on the part of the husband. If Ms V’s report is to be accepted at face value, there is raised - significantly, as it seems to me - the possibility, if her opinions are correct, that an application might need to be made for a case guardian to be appointed for the husband. The difficulties inherent in such an application for the litigation, and the potential for delay, additional cost and the like are, on their face, obvious.
The husband contends that the prejudice to him arises essentially from the fact that, if the trial was reopened and the evidence of Ms V accepted, then there might be explanations for matters about which I might otherwise arrive at adverse credit findings. A number of submissions were made in that respect.
There is no doubt, as submitted on behalf of the husband, that the husband's credibility generally is significantly in issue in these proceedings. Specifically, there is an issue about the husband's willingness to comply with previous court orders and his attitude towards disclosure and his failure (accepted on his behalf) to disclose the existence of five units at one stage owned by him in Egypt until immediately prior to commencement of the first part of the trial in November.
There is the possibility, as counsel submits, that inferences will be drawn about the husband's honesty and his position generally as a result of adverse findings of credit made against him. It is also correct, as is submitted on behalf of the husband, that part of the process of arriving at credit findings in respect of the husband is likely to involve an examination of his capacities to recall events, including, for example, dates.
Accordingly, it can be appreciated that there is prejudice potentially to the husband in not receiving what might become evidence by Ms V as to any incapacity that he might suffer having an impact upon any findings to be made about his credit generally or about his memory specifically.
That issue, though, needs to be looked at not only in terms of what I have found to be the significant prejudice to the wife if the proceedings are reopened, but also in light of the other criteria relevant to the exercise of the discretion to reopen.
In particular, I refer to whether the evidence could, with reasonable diligence, have been discovered earlier. In that respect, the chronology of earlier proceedings in this court does not assist the husband.
There have been a number of previous occasions where it has been contended on behalf of the husband that medical evidence would be submitted on his behalf in respect of, generally speaking, health conditions suffered by him. It is pointed out by Senior Counsel for the wife that one of those occasions was in a hearing conducted by telephone by me on 28 November 2008. There, medical evidence was foreshadowed by Queen's Counsel then representing the husband. Similarly, medical evidence on his behalf has been foreshadowed on earlier occasions in proceedings conducted by Cronin J in this registry.
Whilst there is no evidence before me as to the precise nature of the medical evidence that was sought to be produced on any of those occasions, I note that not only was it foreshadowed on a number of earlier occasions, but that no point was taken at the trial before me in November about any aspect of the husband’s medical (or mental) condition/s.
Specifically, on Ms Khoo's own evidence, not only Ms Khoo, but the husband's junior counsel and the husband's Queen's Counsel, had an opportunity to observe and obtain instructions from the husband in respect of all matters relevant to the conduct of the case at that time. No suggestion was made at any time by those representing the husband during the proceedings in November that medical evidence would, or should, be introduced so as to explain what was then apparent, clearly, were significant lapses in the husband's recall of events.
Further, no application was made to adjourn the hearing in November.
As earlier pointed out, the next available occasion on which the matter could be continued before me in this registry was some seven months after the conclusion of that part of the hearing in June.
On no occasion during that seven‑month period did the husband’s solicitor representing him in November and who continued to represent him during the interregnum make any application of any type that had any reference to the husband's medical condition, nor is any evidence adduced by her in respect of any concerns that she had during that period of time.
It is pointed out, in that respect, that Ms Khoo filed an affidavit in proceedings on 23 December 2008 in which "medical treatment" was referred to. Significantly as it seems to me in light of what Ms Khoo now deposes in an affidavit filed in the manner and at the time earlier described, Ms Khoo deposes in that earlier affidavit to the husband not responding to her requests for information. Equally significantly, as it seems to me, Ms Khoo deposes at paragraph 6 of that affidavit that she is unable to obtain "clear instructions" from her client.
At no time during the resumed hearing in June was any application made that had as its foundation any concerns about the medical or mental condition of the husband.
Each and all of the matters deposed to by Ms Khoo at paragraphs 2 through 6 of her current affidavit refer to matters which occurred or of which Ms Khoo was aware, prior to the conclusion of the trial on 4 June.
In particular, in that respect, I note that Ms Khoo deposes, at paragraph 6 of that affidavit, to being concerned "every day of the trial" that the husband "did not appear to have any recollection of the numerous requests that I have made of him to provide documents ... ".
I reiterate: no application was made during the course of that trial, either for adjournment or for any other order that had as its foundations those particular concerns.
Furthermore, and in any event, it seems to me that I am entitled, notwithstanding what is contained in the report of Ms V, to take account of the fact that I had the opportunity to observe the husband in both November 2008 and June 2009. Whatever might be any expertise, experience or training possessed by Ms V, she did not have that opportunity.
My observation of the husband was that his capacity to recall, his demeanour, and his evidence in general, exhibited no differences between November 2008 and June of 2009.
Secondly, what was abundantly plain in his evidence in November, and also in June 2009, was that he claimed to have a very specific recollection about a number of things and claimed no failure in memory himself, save in respect of an incapacity to recall dates. It is by no means uncommon that witnesses in this court, or indeed in any other court, claim to have an incapacity to recall dates or specific periods of time.
About many matters though, the husband gave not only what I considered to be clear evidence, in the sense that it did not in any way, shape or form appear to be affected by an incapacity to recall, but he was emphatic that his version of events was correct.
In the course of argument in this application, I referred to two matters in particular. The first was when the husband was being cross‑examined about entries in his passport and he was able to recall, quite specifically, whether he was or was not in a particular city as alleged and whether on a particular date at a particular place, he had either stayed in the city or was only in transit. In that latter respect, the husband was adamant that, on a particular occasion in a particular city, he was only in transit, and, upon further analysis, Senior Counsel for the wife acknowledged to him that he was in fact correct.
Secondly, the husband referred in evidence, on a number of occasions, to attempting to undertake a series of business opportunities involving import/ export which, on his case, necessitated him being able to travel through various parts of Europe. His passport tendered in the trial proceedings clearly corroborated a significant degree of travelling undertaken by the husband.
There was no suggestion by him that any mental incapacities (or indeed any physical incapacities about which he was questioned) impeded his capacity to travel extensively through Europe or to pursue what he considered to be, clearly enough, viable business opportunities.
In this case, the evidence points to the following conclusions:
(1)There is the potential for prejudice to the husband in the application for reopening being refused and his not being able to adduce evidence from Ms V in the way in which I have earlier indicated.
(2)I consider that there is likely to be very significant prejudice to the respondent wife by that application being granted (noting what the High Court and the Queensland Supreme Court have each said in that respect.
(3)I do not consider that any such (significant) prejudice as might be occasioned to the wife can be "cured" by costs.
(4)There is a very significant public interest in the finality of litigation and, in this particular case, there is a very significant private interest in each of the parties, but particularly the wife, in finalising this litigation.
(5)I am not satisfied by reference to the test earlier enunciated that the evidence now sought to be presented could not "by reasonable diligence" have been discovered earlier. All the evidence suggests such evidence could have been discovered, or at the least foreshadowed, by reasonable diligence on an earlier occasion. In that respect, I particularly have in mind what Ms Khoo herself deposes to in her affidavit, and particularly paragraph 6 thereof.
Balancing all of the considerations which I consider to be relevant to the exercise of my discretion, the application to reopen is refused.
Costs
Consequent upon my dismissal of the husband's application to reopen the trial of this matter, the wife makes application for costs. The general rule in this court is contained in section 117(1) of the Act, that is, that each party bear their own costs of and incidental to proceedings.
Subsection (2) of section 117 allows the court to depart from that general rule in circumstances where the court, in the exercise of its discretion, considers that there are appropriate circumstances in which to do so.
Subsection (2A) of that section sets out a number of considerations to which the court must have regard in the exercise of that discretion.
A number of the matters specifically contained in subsection (2A) can be readily dealt with. I have not been made aware of any offers to settle in respect of these proceedings.
These specific proceedings have not been necessitated by the failure of a party to comply with previous orders of the court.
I am aware of the financial circumstances of each of the parties by reference to the material generally before me in the trial. In that respect, it is to be noted that the central assertion made by the wife in the trial of these proceedings is that the husband has available to him capital, and perhaps income, not otherwise disclosed in the context of these proceedings.
Moreover, relevant to the financial circumstances of each of the parties is the conduct of the husband in and about the use of moneys which might otherwise have been available to the parties in Australia.
It can readily be seen that the husband has been wholly unsuccessful in these proceedings within the meaning of subparagraph (e) of that section.
Subparagraph (c) of that section requires me to take into account -
“The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of fact, production of documents and similar matters.”
On a strict interpretation of that section, it might be thought that it applies solely to these particular proceedings in respect of which costs are sought. However, the wording of the sub-section makes it clear that the matters enumerated are not exhaustive. The nature of this application is an application to reopen a trial and where the evidence in respect of that application must, of necessity, be the interests of justice which, in significant part flow from the facts and circumstances of the trial sought to be re-opened. I consider that I am entitled to take into account for the purposes of subsection 117 (2A) of the Act the conduct of the parties to the trial proceedings of which the proceedings to reopen can be seen to be a part, although, of course, a distinct part.
Therefore, I take account generally of the conduct of the husband in respect of the failure to comply with court orders and to produce documents and make proper disclosure.
Without impinging upon credit findings necessary to be made as part of the trial process, I can refer to one matter not the subject of dispute in the trial that best illustrates the point. The husband disclosed for the first time in about two and a half years of litigation of the existence of five flats in Egypt on the first day of the November hearing. No prior information or documents had previously been provided by him in respect of that asset.
It has been said many times by many Full Courts that the obligation to disclose is the first and fundamental obligation of parties to litigation in this court. Indeed, it is the first and fundamental obligation of parties in litigation in any court, but the Full Court of this court has made it clear that it is particularly true of property litigation conducted in this court.
Further, it seems to me that the conduct of the husband, particularly as in regard to the provision of particulars, disclosure of documents and disclosure and provision of information in and about his financial affairs is a matter that I can take into account generally as being directly relevant in respect of this application for costs.
Even if I am wrong in that conclusion, it seems to me that the facts and circumstances relevant to this application justify an order for costs being made in favour of the wife.
By reason of the findings made in respect of the application to reopen, it will be clear that I consider that each of the matters forming the essential foundation of the application to reopen were within the province of reasonable diligence and, as it seems to me, the application could not be said to have enjoyed reasonable prospects of success prior to it being brought.
Furthermore, I take note of the fact that the application was brought on urgently and that material in that respect was received by the respondents only a day before the hearing before me.
Irrespective of my finding with respect to conduct, it seems to me that the facts and circumstances of this particular case justify an order for costs being made in favour of the wife.
In that respect, although I have not been provided with particulars of the items, I am told that the calculation done in respect of the solicitor's fee has been done by reference to the scale hourly fee and therefore is referable to Schedule 3. The claim made on behalf of counsel refers to the specific costs agreement between counsel and her client as distinct from the scale fee applicable to senior counsel in an application of this type.
Accordingly, application is then (effectively) made for indemnity costs to the extent of approximately $2500 in respect of the difference between the scale fee for counsel and the fee actually incurred by the wife.
The law in respect of indemnity costs is relatively clear. I refer in particular to the decision of the Full Court in Kohan. In broad terms a court needs to be satisfied that the circumstances of a particular case fall outside the ordinary or are exceptional. Whilst, as I have indicated, I think I can take account generally of the conduct of the husband in respect of the trial proceedings, I am somewhat troubled about doing so, as being the sole support for, in effect, an application for indemnity costs.
It may be that those very same matters might ultimately found an application for indemnity costs in respect of the trial, but it seems to me that in respect of what can be broadly described as exceptional relief, I should have regard only to those matters pertaining to this particular piece of litigation.
Accordingly, I reject the application for indemnity costs.
After discussion, the parties were relatively content to agree on a fixed sum of $3500. I will order that the husband pay the wife's costs of and incidental to the application before me fixed at $3500.
I take account of the fact that the husband, I am told, is in Cairo and I order that it be paid within 14 days.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate:
Date: 23 June 2009
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