BAGHERI & GOUDARZI

[2018] FamCA 636

FAMILY COURT OF AUSTRALIA

BAGHERI & GOUDARZI [2018] FamCA 636

FAMILY LAW – COSTS – Where the father seeks costs arising from parenting proceedings – Where a hearing was previously adjourned as on the first day of trial the mother introduced into evidence material that could not be fairly met by the father – Where the mother informed the father on the first day of a subsequent hearing that she would be relying on a previous affidavit and not her most recently filed trial affidavit – Where the father seeks his costs be assessed pursuant to r 19.18 of the Family Law Rules 2004 (Cth) – Where the father incurred costs over and above those which he would normally incur because of the conduct of the mother – Where a costs order is made against the mother on a party and party basis.

FAMILY LAW – COSTS – Where the father seeks to be reimbursed for one half of the cost of the single expert – Consideration of r 15.47 of the Family Law Rules 2004 (Cth) and s 117 of the Family Law Act 1975 (Cth) – Where the usual order in respect of the fees of a single expert is that the fees be paid equally by the parties – Where the mother is ordered to reimburse the father for half the cost of the single expert.

FAMILY LAW – COURTS AND JUDGES – Bias – Where the mother has made an oral application for recusal due to bias – Consideration of the legal position explored in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and other case law – Where there is nothing to suggest that a fair-minded lay observer might reasonably apprehend that the Court might not bring an impartial and unprejudiced mind to the determination of the costs proceedings – Where the application has no prospect of success.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 15.47, 19.18

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Stephens v Stephens and Anor (2010) 44 Fam LR 117

APPLICANT: Mr Bagheri

RESPONDENT: Ms Goudarzi

FILE NUMBER: SYC 7646 of 2008

DATE DELIVERED: 23 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 17 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE APPLICANT: Mr O’Reilly

THE RESPONDENT: In person

Orders

1. The mother shall pay to the solicitor for the father the sum of $44,756.23 in respect of costs within 21 days from the date of these orders or within such further time as is agreed between the parties.

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 Bagheri & Goudarzi 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 SYDNEY

FILE NUMBER:  SYC 7646 of 2008

Mr Bagheri
Applicant

And

Ms Goudarzi
Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings for costs arising out of parenting proceedings before the Court.  The father seeks an order that the mother pay the costs associated with aspects of the parenting trial, including the costs associated with an adjournment of the trial and the costs of the single expert.

Applications

1. The father sought orders to the following effect:

   (a)that within seven days the mother pay to the father $12,234.75 being one half of the fees of the single expert in the parenting proceedings;

   (b)that the mother pay the father’s costs thrown away by reason of:

   (i)the adjournment of the parenting proceedings on 14 August 2017; and

   (ii)the mother abandoning reliance on her affidavit filed 4 August 2017.

   (c)as to (b), the father seeks that the costs be assessed pursuant to r 19.18 of the Family Law Rules 2004 (Cth) (“the Rules”) and paid within 14 days. In the alternative, he seeks that those costs be calculated on a party/party basis as assessed or agreed and paid within 14 days of the agreement or assessment.

2. The mother seeks that the father’s application be dismissed.

Written Evidence

1. The father relied on:

   (a)affidavit of the father affirmed and filed 10 July 2018; and

   (b)affidavit of Ms RR sworn and filed 11 May 2018.

2. No responding documents were filed by the mother.

The hearing

1. The hearing was listed on 17 July 2018.  The father was represented by counsel.  The mother was without legal representation.

2. The mother became very excited, spoke loudly and had difficulty in limiting herself to the issue she set out to address.  Her allegations about the father’s lawyers became more and more extreme.

3. The mother did not rely on any filed documents.  She sought permission to cross‑examine the father’s solicitor.  I indicated that it would be unusual to have cross-examination in a costs hearing.  In any event the mother could not satisfy me that she had a legitimate forensic purpose behind the request, as opposed to a tangential campaign.

4. The mother sought compliance with a Notice to Produce.  It transpired that the “Notice” was an email sent at 12.17 pm on the day of the hearing, requesting documents as varied as:

   5.… all your firm’s account numbers and names and the banks your firm deals with.

   And information such as:

   6.… any specific details of your dealings with Mr Bagheri’s legal representatives for his University … “Investigation”.

5. No documents were produced in answer to the email and I did not require the father’s solicitor to provide any of the requested documents or information.  The father’s costs application was filed on 11 May 2018.  It was not reasonable for the mother to make a request for information less than two hours before the commencement of the July hearing of that application.

6. The mother referred to oral applications she wished to make.  Firstly she sought that I disqualify myself.  I will deal with that issue below but given that issue it was bizarre that at the same time she sought that I deal with oral applications for orders in respect of overseas travel for the children.  I gather that she also sought to agitate issues about the children’s names and other matters.

7. There are no current parenting proceedings.  I nevertheless stood the matter in the list so that the father’s counsel could obtain instructions in the hope that the parties could sort something out.  I was told that the father would sign passport applications if the mother could provide them to him but there were issues about permission to travel and the Watchlist entries that could not be resolved at that time.  I could take the matter no further and it is up to the parties to negotiate with each other or take further action.

Recusal

1. The mother made an oral application that I recuse myself from dealing with the costs proceedings because (the mother asserts) I am biased against her.  As I have mentioned above, that did not prevent the mother from also seeking that I deal with a number of issues related to the parenting orders, but there it is.  There was no formal application that I recuse myself, no application for leave to make an oral application, nor was any notice of the application given to the father’s lawyers.  No explanation was offered for the lateness of the application.

2. No evidence was relied on in support of the application.  I understood the gist of the mother’s submissions to be:

   ·although I made final orders in the parenting proceedings in similar terms to those sought by the mother, I made adverse comments about her in the reasons for judgment;

   ·I have made a number of other orders in the parenting and financial proceedings between the parties, that were wrong and injurious to the mother.  Those errors were not identified on appeal because the mother did not lodge an appeal against those other orders.  The mother did not appeal against those decisions because, by reason of the manner of the Full Court’s disposition of an earlier appeal by the mother and/or because that Court is fundamentally flawed, she did not believe that there was utility in appealing;

   ·the Family Court of Australia is being abolished, perhaps as a result of a petition associated with the mother;

   ·in the course of my dealings with the proceedings I have heard or otherwise come to know too much about the mother and therefore should not hear the costs argument;

   ·I have protected the father’s lawyers when those lawyers, and particularly the father’s solicitor, have lied and are the source of all the problems that have befallen the family in recent years; and

   ·I should disqualify myself and refer the proceedings to be heard by the Chief Justice of the Court.

3. Without consent or permission the mother’s application was made informally and late.  Some of the mother’s submissions were vexatious and bizarre.  There is no proper application before the Court but I will nevertheless say something about this issue.

4. In summary, the legal position[1] in respect of recusal is as follows:

   ·judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the Court to which they belong.  Importantly, judges do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause;

   ·similarly (and apropos the mother’s request that the proceedings be heard by the Chief Justice), litigants are not permitted to select the judge who will hear their case;

   ·if one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case;

   ·in a case of real doubt about whether a judge is disqualified it may be prudent for a judge to recuse himself or herself;

   ·the issues in question follow from a consideration of the fundamental principle that court cases must be decided by an independent and impartial tribunal;

   ·one category of basis for disqualification is the appearance of bias; and

   ·the test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

   [1]  See the majority judgment of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and the High Court decision in Johnson v Johnson (2000) 201 CLR 488.

5. It would be possible for a judge to hear a costs argument arising out of proceedings heard by another judge.  For example, that would need to happen if the trial judge had subsequently retired or was otherwise unavailable.  However, if available, the trial judge invariably hears any related costs application.  Many of the relevant considerations would be more efficiently addressed by the judge who had carriage of the substantive proceedings.

6. There is no evidence to support the mother’s contention of bias.  That means, in turn, that there is nothing to suggest that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of the costs proceedings.

7. In my view a properly made application of the nature proposed by the mother, even if supported with evidence of the contentions she raised, would have no prospects of success.

Costs

1. The father seeks two categories of costs arising from the parenting proceedings.  He seeks to be reimbursed for one half of the cost of the single expert.  Secondly, he seeks a payment for the legal costs he incurred because the hearing listed to commence on 14 August 2017 was vacated and because on the first day of the final trial the mother announced that rather than the latest affidavit filed and served by her (an affidavit of 4 August 2017), she relied on an affidavit sworn and filed in December 2015.

The legislation

1. Costs applications are decided by reference to s 117 of the Family Law Act 1975 (Cth) (“the Act”). In the context of this case s 117 relevantly provides:

   (1)Subject to subsection (2) … each party to proceedings under this Act shall bear his or her own costs.

   (2)If …the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)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 facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

2. As to the calculation of the costs, the father seeks that the costs be assessed pursuant to r 19.18 of the Rules and be paid within 14 days.

3. Rule 19.18 provides:

   19.18  Method of calculation of costs

   (1)The court may order that a party is entitled to costs:

   (a)of a specific amount;

   (b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

   Example: For paragraph (1)(c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.

   (2)If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.

   (3)In making an order under subrule (1), the court may consider:

   (a)the importance, complexity or difficulty of the issues;

   (b)the reasonableness of each party’s behaviour in the case;

   (c)the rates ordinarily payable to lawyers in comparable cases;

   (d)whether a lawyer’s conduct has been improper or unreasonable;

   (e)the time properly spent on the case, or in complying with pre‑action procedures; and

   (f)expenses properly paid or payable.

Costs thrown away - the section 117(2A) considerations

1. The father addressed the question of the parties’ financial circumstances in his affidavit.

2. Apart from superannuation the father has approximately $4,600,000 in net assets.  He is the registered owner of property at:

   ·Suburb H which had a value for the purposes of the property proceedings of $2,650,000;

   ·Suburb WW valued at $1,650,000; and

   ·Suburb J valued at $890,000.

3. He retains savings of about $758,500 and he owes about $1,208,998.  The father deposes that his superannuation interest with XX Super is worth about $550,000.

4. The father’s income is $4,362 per fortnight, together with $12,652 per month in pension payments from YY Super.  There is no evidence about the father’s weekly liabilities.

5. The mother provided no evidence about her financial circumstances.  As to her income, in the parenting proceedings I recorded that “…the mother has a Ph.D. … but she is not currently in paid employment”.  I also recorded that in a judgment given on 4 April 2016 in proceedings between the parties for property settlement the trial judge found that the parties’ net assets had a value in excess of $14,000,000 and orders were made to divide the matrimonial property as to 55 per cent to the wife and 45 per cent to the husband.  There was an appeal but the substance of the property orders were not disturbed.  

6. The father contends that the mother received a total of $4,541,860.83 from the proceeds of the sale of a property at Suburb R.  He also contends that she is the sole registered owner of property at:

   ·Suburb P valued for the earlier proceedings at $820,000;

   ·Suburb R valued in 2014 at $1,150,000; and

   ·Tasmania purchased using $305,000 from the proceeds of sale of a property at Suburb N which were received in about September 2016.

7. I was not told that either of the parties was in receipt of a grant of legal aid.

8. As to the conduct of the proceedings by the parties, that is very much the basis of the father’s claim.  It is submitted for the father that some of the work done for the hearing to commence on 14 August 2017 and all of the attendances for that hearing were wasted because the application was adjourned.  The sequence of events was that the mother’s counsel tendered various documents at the commencement of the hearing.  They were admitted over the objection of the father.  That resulted in an adjournment application on behalf of the father which was itself opposed by the mother but for reasons given on the day, was granted.[2] 

   [2]Reported as Goudarzi & Bagheri (No 2) [2017] FamCA 775

9. Put simply, the proceedings were adjourned because, on the first day of the trial, the mother introduced into evidence material that could not be fairly met by the father.  Whatever might be said about why that occurred, it occurred through no fault of the father.  The father should be indemnified as to his costs.

10. The second issue relates to the mother’s conduct at the hearing commencing in February 2018 in relying on an affidavit filed 24 December 2015 rather than a more recently filed affidavit.  As I noted in the judgment in the substantive proceedings, that came as something of a surprise to the Court and to the other parties.  Naturally, preparation in the father’s case for the trial would have focussed on the most recently filed trial affidavit of the mother, and the issues raised in that document that needed to be addressed in cross-examination.  I do not recall any explanation being given for the mother’s decision about this issue.  The father was on notice that there was an issue about the mother amending or updating her August 2017 affidavit but there was no reason for him or those representing him to suspect that she would rely on an affidavit that was sworn more than two years before the hearing.  By definition it meant that the mother’s evidence was not up-to-date and that in turn, required the indulgence of an opportunity for the mother to give updating evidence orally.  The costs claimed according to exhibit 1 are $255 in profit costs claimed from the father on an invoice dated 28 February 2018.  I take it that the claim, expressed at scale is included in the profit cost estimate reflected in exhibit 4.  In any event, the claim is modest and I will allow it.

1. The proceedings were not necessitated by the failure of a party to comply with Court orders.

2. Although a concession is made in the written submissions prepared on behalf of the father about the substantial outcome, it can rarely be said in parenting proceedings that a party was wholly unsuccessful.  That is also the position here.  The father did not achieve the main purpose of his application but the mother did not succeed on every aspect of her case.

3. I was provided with no evidence of settlement discussions in writing in the substantive proceedings.  However, a letter went between solicitors on 16 August 2017 about the costs implications of the adjournment.  By that letter, the mother was put on notice that the father would seek orders in the following terms:

   1.The mother pay the father’s costs thrown away by reason of the adjournment of the parenting proceedings listed for hearing for three days to commence Monday, 14 August 2017, as agreed or assessed within 28 days of agreement or assessment, whichever applies.

   2.That the mother pay the father’s costs thrown away by reason of the mother abandoning her affidavit filed 4 August 2017, as agreed or assessed within 28 days of agreement or assessment, whichever applies.

4. There is no evidence of a response by or on behalf of the mother to the letter from the father’s solicitors.

5. The only other issue is the question of the costs of a formal assessment process, should that be necessary for quantifying the father’s costs.  Ms RR makes an estimate of the costs of that process in her affidavit.

6. The father’s application for costs is not quantified and, save for the reference to r 19.18, does not specify a basis for the calculation of costs save that if the claimed amounts are not awarded, he seeks his costs on a party and party basis. Under r 19.18 I could:

   (a)specify a specific amount;

   (b)order that costs be assessed on a particular basis (e.g. lawyer and client, party/party or indemnity); or

   (c)order that costs be calculated in accordance with the method stated in the order or assessed in accordance with Schedule 3.

   Subrule 2 of r 19.18 implies an assessment on a party/party basis if no other basis is specified.

7. Similarly, there was nothing in the submissions made on behalf of the father that identified a basis for calculation.  The schedule of costs[3] handed up is apparently drawn on a solicitor and own client basis.  I asked learned counsel for the father to provide an estimate of the claimed costs on a party and party basis and was provided with a handwritten document[4]. That document appears to accord with Schedule 3 to the Rules as those rules applied to work done between 1 January 2017 and 31 August 2017. I note that the relevant daily and hourly rates for work were taken at the top of the range allowed for senior counsel. Some work was done after August 2017 but there is no unfairness to the mother in the estimate provided for that work at the lower rate.

   [3] Exhibit 1

   [4] Exhibit 4

8. Costs are generally awarded on a party and party basis.  That basis usually provides only a partial indemnity to the party who secures a costs order.  Absent considerations such as the costs of a representative litigant such as a trustee, the authorities require that justification is given by a Court for awarding costs on any more generous basis than party and party costs.

9. In Colgate Palmolive Co and Another v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 the Federal Court of Australia (Sheppard J) reviewed the English and Australian authorities about costs generally and at paragraph 24 said:

   24.It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-

   1.The problem arises in adversary litigation, i.e. litigation as between parties at arm’s length.  Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority. 

   2.The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.

   3.This has been the settled practice for centuries in England.  It is a practice which is entrenched in Australia.  Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it.  No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other.  The relevant passages from the respective judgments have been earlier referred to. 

   4.In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require.” Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, “The categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.

   5.Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.

   6.It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order.  The costs are always in the discretion of the trial judge.  Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.

10. As I have referred to above, there are aggravating factors in the mother’s conduct but in my view there is insufficient justification to depart from the usual level of indemnity, which is party and party costs.

11. I am satisfied that the father is obliged to meet the claimed costs, albeit in an amount significantly in excess the quantum identified in exhibit 4.

12. The mother did not make any submissions in respect of the father being represented by senior counsel per se, much as she was nearly as critical of Mr Richardson SC as she was of the father’s solicitor and of course, me.

13. By his Application in a Case filed 11 May 2018 the father seeks that his costs be assessed pursuant to r 19.18 of the Rules. I am confident that the parties could not efficiently manage the processes of either reaching agreement about the quantification of the father’s costs or engaging in an assessment process with a taxing officer. I appreciate that the mother has not had sufficient opportunity to be heard in respect of the particular items claimed. To the extent that she addressed the schedule marked as exhibit 1, her submissions seemed to be focussed on items in the relevant invoices that are not being claimed against her. Nevertheless, for the reasons set out above I will make the assessment.

Dr LL’s fees

1. I made a notation on 14 March 2017 to the effect that the updating of the single expert’s report “may have to be at the father’s cost in the first instance”. The father incurred a total of $24,469.50 for the fees of Dr LL for the preparation of an updated report and for his attendance for cross-examination. The father seeks to be reimbursed by the mother for one half of that sum. The question of the mother contributing to Dr LL’s fees is addressed by s 117(1) of the Act. The father paid the entire fee in the first instance but in the normal course the cost of an expert witness is born equally by the parties. Rule 15.47 of the Rules provides:

   15.47Single expert witness’s fees and expenses

   (1)The parties are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report.

   (2)A single expert witness is not required to undertake any work in relation to his or her appointment until the fees and expenses are paid or secured.

   Note:This rule applies unless the court orders otherwise (see rule 1.12).

2. I refer to the findings made in relation to the s 117(2A) considerations. There is no reason for the position identified by the Rules not to apply. I will make the order sought by the father.

Conclusion

1. The usual order in respect of the fees of a single expert is that the fees be paid equally by the parties.  That will apply in relation to the fees of Dr LL and the mother will be required to reimburse the father for one half of the fees incurred by him.  That reimbursement shall be in the sum of $12,234.75. 

2. The father incurred costs over and above those which he would normally incur because of the conduct of the mother in causing the abandonment of the hearing listed in August 2017 and in waiting until the commencement of the hearing to indicate that she was relying on a two year old affidavit rather than her most recently filed affidavit.  The father should be indemnified in relation to those costs.  The parties’ litigation has spanned a decade.  The taxation process would involve costs out of proportion to the matters at issue.  The parties are highly unlikely to reach an agreement about the quantification of costs.  I will assess the costs in accordance with the estimate provided on a party and party basis which is exhibit 4.  The costs are $2,659.14, together with disbursements of $29,862.34, making a total of $32,521.48.

3. The total payment for costs will be in the sum of $44,756.23.

4. Beyond the application, there were no submissions in relation to the time within which any costs should be paid.  I will provide for the mother to pay the costs within 21 days or such other time as the parties might agree upon in writing.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 23 August 2018.

Associate:  

Date:  23 August 2018