Aldam and Cesari

[2020] FamCA 54

FAMILY COURT OF AUSTRALIA

ALDAM & CESARI [2020] FamCA 54

FAMILY LAW – COSTS – respondent’s conduct in proceeding dilatory – non-participation in parts of litigation – application for costs of one appearance – costs ordered.

Family Law Act 1975 (Cth), ss 117, 117(2A)

Colgate–Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

APPLICANT: Mr Aldam

RESPONDENT: Mr Cesari

FILE NUMBER: MLC 9029 of 2018

DATE DELIVERED: 4 February 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Wilson

HEARING DATE: 4 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: J. Schmidt

SOLICITOR FOR THE APPLICANT: Blackwood Family Lawyers

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Not applicable

Orders

1. The respondent pay the applicant’s costs on an indemnity basis in the sum of $9,762 for the hearing on 14 January 2020.

2. The applicant’s costs of today are reserved for trial.

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  Aldam & Cesari 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 MELBOURNE

FILE NUMBER: MLC 9029 of 2018

Mr Aldam

Applicant

And

Mr Cesari

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This case has had a lamentable history since it came into my control not by reason of any conduct by the applicant but rather by reason of conduct of the respondent.  The conduct of Mr Cesari and his then solicitors have occasioned a degree of disruption in the orderly presentation of this case culminating in an abortive appearance before me on 14 January 2020.

2. As a result of that conduct leading to the events of 14 January and as a result of the orders made on 14 January, Mr Schmidt on behalf of the applicant sought his client’s costs of 14 January on an indemnity basis.  Mr Schmidt also sought costs wasted of today.  He pressed for payment of costs orders made by the registrar on a previous occasion.  I have informed Mr Schmidt and Mr Cesari that there is such a factual quagmire about the events at and after the conciliation conference that I propose to reserve those costs for a full factual investigation at trial.

3. Mr Cesari has applied to review the decision of the registrar made in December of last year and with it, the costs order.  There again is a factual examination that must be undertaken for me to better understand precisely what happened in and around that day.  I reserve the question of costs on that occasion. 

4. The situation on 14 January is in a different category it seems to me.  I propose to make the orders sought by Mr Schmidt for Mr Cesari to pay Mr Schmidt’s client’s costs on an indemnity basis in the sum of $9,762.

5. The presumption of each party bearing his, her or its own costs embedded in s 117 of the Family Law Act can be upended if the circumstances appropriate to any of the subsections set out in s 117(2A) of the Family Law Act are enlivened. In this case, Mr Schmidt contended that the conduct of Mr Cesari enlivened the application of the provisions of s 117(2A) permitting the court to impose a costs order where the conduct of the parties in relation to a proceeding is such as to warrant a departure from the ordinary presumption that there will be no costs order.

6. In my view Mr Cesari’s conduct has been cavalier, to say the least, in the preparation to the events of 14 January.  That hearing was intended to be an undefended application.  Mr Schmidt’s client prepared as if the case was undefended and necessarily did not have any material to respond to in order to endeavour to make submissions in respect of contested property division matters.

7. On 14 January Mr Cesari attended court in person.  It was apparent that he was wholly unprepared.  He said to me that he had been served less than dutifully by his previous solicitor with whom he was embroiled in a costs dispute as a result of which steps that should have been done had not been done in order to properly advance his case.  Upon hearing Mr Cesari on 14 January, I told Mr Schmidt, much to Mr Schmidt’s tolerant acceptance but underlying misgiving, that I was required by law to hear Mr Cesari if he proposed to proceed on a defended basis.  As a result I made orders to adjourn this proceeding to 4 February 2020 in the expectation that Mr Cesari would, in fact, bring to court on this day the barrister to whom he said he had spoken to in order to present argument today. 

8. As it happens, between 14 January and today Mr Cesari did in fact speak to the barrister who he assured me would be ready to debate all relevant issues before me today.  As I anticipated, the barrister has declined to appear.  It seems that Mr Cesari was told, as he told me, that the relevant barrister said that she did not have the requisite expertise to adequately represent him today.  Today therefore has resulted in Mr Cesari personally being present but unrepresented when dealing with Mr Schmidt’s submissions before me.

9. Mr Cesari told me that his case is now fully prepared.  On the slightest discussions with him, that could not be further from the truth.  Valuation evidence is in a state of considerable unpreparedness.  Mr Cesari told me that he may well be inviting others to swear affidavits in this case.  In short, the case is a very long way short of readiness for trial. 

10. Mr Cesari told me that he wishes to contest this case at all factual levels.  That is a far cry from the state of the case as it was intended to proceed on 14 January of this year.  Of course, a party is entitled to contest a case at trial, but if in the course of that party vacillating it causes the other side to be adversely affected, then costs consequences should follow.  I am not in a position to assess the truth of the skirmish between Mr Cesari and his former solicitor.

11. Very oddly, Mr Cesari told me that if the former solicitor’s fees were paid, he (the former solicitor) would come back onto the record and represent Mr Cesari.  That seemed to me to be a most peculiar set of circumstances.  Mr Cesari said he does not wish to have the services of that solicitor.  Yet, on the other hand, he told me he fully intends to have legal representation at the trial of this case.

12. Self-evidently Mr Cesari is vacillating to the detriment of Mr Schmidt’s client. He can do so, of course, but he does so at a penalty and the penalty is a costs order. In my view a costs order is appropriate under s 117(2A)(c) on the basis of Mr Cesari’s conduct and I order indemnity costs against him in the sum of $9,762. It is said even at intermediate appellate level in this court that an indemnity costs order is exceptional. I do not agree. An indemnity costs order has routinely been made following the decision of Sheppard J in the Federal Court of Australia in Colgate-Palmolive Co v Cussons Pty Ltd.[1]  It has been routinely applied in almost every court of this country and there is no necessary prerequisite that exceptional circumstances be found to exist before visiting such an order on a payee.

    [1] (1993) 46 FCR 225.

13. Conduct is key to an assessment of liability for an indemnity costs order. I am satisfied that Mr Cesari’s conduct has been wasteful of the court process and that he should be visited with an indemnity costs order in the sum of $9,762 which I make pursuant to s 117(2A) of the Family Court Act. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 4 February 2020.

Associate: 

Date:  6 February 2020