Barre & Barre
[2021] FedCFamC1F 61
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Barre & Barre [2021] FedCFamC1F 61
File number(s): SYC 6149 of 2016 Judgment of: HARPER J Date of judgment: 20 September 2021 Catchwords: FAMILY LAW – COSTS – Application by a self-represented litigant – Where self-represented Third Respondent is an intervener – Costs not available to self-represented litigants – No justifying circumstances for the grant of a costs order – Where Third Respondent has a history of seeking broad based relief – Where applications have previously been dismissed as having no jurisdictional basis – Where Third Respondent’s conduct has led to delays in finality – No basis for dollar for dollar costs order in favour of self-represented litigant – Application dismissed – Costs order made in favour of Applicant Wife. Legislation: Bankruptcy Act 1966 (Cth) ss 35, 35A, 35B
Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act2021 (Cth) ss 67, 68
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act2021 (Cth) s 37
Family Law Rules 2004 (Cth) rr 1.04, 1.06, 1.07, 1.08, 1.16
Family Law Repeal Rules 2021 (Cth), Schedule 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.05, 12.01(3), 12.13
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; [2009] HCA 27
Atkins & Hunt (2018) 57 Fam LR 128; [2018] FamCA 14
Atkins & Hunt [2017] FamCAFC 131
B v J (2006) FLC 93-259; (2006) 35 Fam LR 222; [2006] FamCA 256
Barre & Barre (Superannuation) [2021] FamCA 463
Barre & Barre [2021] FamCA 101
Barre & Barre and Ors [2019] FamCA 907
Barre & Barre and Ors [2020] FamCA 455
Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555; [2019] HCA 29
Cachia v Hanes (1994) 179 CLR 403; (1994) 120 ALR 385; [1994] HCA 14
Casley & Casley [2010] FamCAFC 189
G & T (2003) 32 Fam LR 101; (2004) FLC 93-176; [2003] FamCA 1076
Latoudis v Casey (1990) 170 CLR 534; (1990) 97 ALR 45; [1990] HCA 59
Northern Territory v Sangare (2019) 265 CLR 164; (2019) 60 Fam LR 71; [2019] HCA 25
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Parke & Estate of the Late A Parke (2016) FLC 93–748; (2016) 314 FLR 322; [2016] FamCAFC 248
Penfold v Penfold (1980) 144 CLR 311; (1980) 28 ALR 213; (1980) FLC 90-800; (1980) 5 Fam LR 579; [1980] HCA 4
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; (1998) FLC 92-812; [1998] HCA 44
Sfakianakis & Sfakianakis [2019] 59 Fam LR 419; [2019] FamCAFC 54
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 9 September 2021 Place: Sydney Counsel for the Applicant: Mr Parker Solicitor for the Applicant: Swaab Attorneys Solicitor for the First and Second Respondents: Mr Barre in person Solicitor for the Third Respondent: Ms Gilliam in person Counsel for the Fourth Respondent: Mr Tolton Solicitor for the Respondents: Jeff Horsey Solicitor ORDERS
SYC 6149 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARRE
Applicant
AND: MR BARRE
First Respondent
BARRE PTY LIMITED
Second Respondent
MS GILLIAM
Third RespondentMR UU AS TRUSTEE IN BANKRUPTCY FOR MR BARRE
Fourth Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
20 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Third Respondent’s application contained in the document entitled “Respondent Ms Gilliam Minute of Order” filed on 12 July 2021 be dismissed.
2.The Third Respondent pay the costs of the Applicant Wife, fixed in the amount of $1,100.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barre & Barre has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
These proceedings have a long and complex history. I delivered final judgment on 8 March 2021: Barre & Barre [2021] FamCA 101 (“Barre”) (“the primary judgment”). The somewhat tortured history of the proceedings are described in detail in that judgment, hence it is unnecessary to repeat those details here, except as otherwise noted.
The central dispute in the primary judgement concerned enforcement of a binding financial agreement entered into between the Applicant Wife, Ms Barre (“the wife”), and the First Respondent Husband, Mr Barre (“the husband”).
Following the primary judgment, there remained residual issues concerning superannuation. Accordingly, the proceedings were adjourned for further consideration, evidence, and submissions. On 19 August 2021, I delivered a supplementary judgment dealing with the superannuation issues: Barre & Barre (Superannuation) [2021] FamCA 463 (“Barre (Superannuation)”) (“the superannuation judgment”).
The husband is bankrupt. In the primary judgment I determined that this Court has jurisdiction in relation to any matter connected with, or arising out of, the bankruptcy of the husband, by reason of s 35(1)(b) of the Bankruptcy Act 1966 (Cth): Barre at [222].
As a result of the primary judgment and the superannuation judgment, the only remaining issues are those which may arise out of the husband’s bankruptcy. However, this remains to be seen, and this judgment is not concerned with any bankruptcy issues. The finalisation of the husband’s bankruptcy awaits, in part, the sale of certain properties in accordance with the Court’s orders in the primary judgment, or the possibility of negotiation with the husband’s trustee in bankruptcy.
Apart from the matters considered in this judgment, no applications for costs have been made.
The Third Respondent in these proceedings is Ms Gilliam, with whom the husband was in a relationship for a time. Ms Gilliam was joined to the proceedings on 8 May 2019 upon her application to intervene as a creditor of the husband: Barre at [47] – [51]. As recorded in the primary judgment, it was agreed during the course of the proceedings that the husband owed Ms Gilliam $228,000: Barre at [19] and [409], which is set out later in these reasons; see also Barre & Barre and Ors [2020] FamCA 455 at [8]. Ms Gilliam received a total of $125,000 in distributions during the course the proceedings. There remains $108,000 owing to her by the husband. This judgment deals with Ms Gilliam’s claim for costs.
It should also be recorded, again, that Ms Gilliam is also the applicant in proceedings SYC342/2019 (“the de facto proceedings”). She seeks a declaration that she and the husband were in a de facto relationship for a period of approximately two and half years. The husband denies this. The Court attempted to hear that matter consecutively with these proceedings, however, the disorganised progress of these proceedings has made this impossible. The de facto proceedings remain part heard, and have been adjourned from 1 and 2 October 2020 due to Ms Gilliam’s health. The lockdowns and disruption caused by the Covid-19 pandemic delayed the allocation of fresh hearing dates, however the part heard hearing has now been listed to resume on 22 and 23 December 2021.
As recorded in the primary and superannuation judgments, Ms Gilliam has filed a range of applications in the proceedings. These applications have made claims to very broad based relief against the wife, the husband, various companies associated with the husband, properties which are the subject of the binding financial agreement, and superannuation assets held by a self-managed superannuation fund in which the wife and the husband have an interest. To the extent that the Court could understand the jurisdictional basis for this relief, orders have been made dismissing the applications of Ms Gilliam.
CURRENT APPLICATION BEFORE THE COURT
On 12 July 2021, Ms Gilliam filed a document entitled “Respondent Ms Gilliam Minute of Order”. Ms Gilliam states these proposed orders follow those sought by her in an application she claims was filed on 10 May 2021, although, as pointed out in the superannuation judgment at [6], no such application appears on the Court file. I will treat the Minute of Order filed 12 July 2021 as an Application in a Case.
The orders Ms Gilliam seeks are as follows:
1. Judgement for the third Respondent in the amount of $108,000,00 on a joint and several basis against the Second Respondent , Barre 1 PTY LTD ACN … , Barre 2 PTY LTD ACN … and F PTY LTD (in administration)
2. Interest from the date of Judgement continuing until Judgement is paid in full pursuant to the family court rules.
3. That the wife in her capacity as Director of the companies listed at 1. their agents or assigns do all things and sign all documents to cause the payment of the Judgement debt and interest due to the third Respondent via bank transfer to an account nominated by her from the deposit monies from the exchange of contract for sale or on transfer of real property situate at 2 G Street Suburb B NSW forthwith.
4. That in the event no deposit monies are received on exchange of contract or on transfer pursuant to order 3 that the wife do all things and sign all documents to cause payment to the third Respondent of $108,000,00 either before settlement or as a disbursement on settlement of sale or on transfer of either 2 G Street (sic) Suburb B or C Street which ever occurs first in time.
5. That if the wife, her agents or assigns fail to communicate with and provide evidence of the progress of and procedural steps taken to give effect to orders herein to the third Respondent of the signing of and doing of all things necessary to cause payment to the third respondent then a registrar of the court be substituted to do all things and sign all documents to give effect to the orders.
6. That the court hears and determines the issue of third respondents costs of these proceedings on a summary basis as a seperate (sic) decision on the papers prior to the finalisation of the proceedings as between the husband and the wife.
7. That upon payment in full pursuant to the orders 3 and 4 herein and any order as to costs pursuant to order 6 that the third respondent be removed as a party to the proceedings.
8. That pending the determination of the third respondents application for costs in the proceedings a dollar for dollar costs order equal to that of every dollar distributed or to be distributed to the benefit of the other parties and each of the legal representatives of the other parties in payment of any costs incurred pursuant to orders of March 2021 be paid into the court pending further order.
9. In the alternate to orders 7, 8 and 9 that all orders for the payment of costs pursuant to orders of March 2021 be immediately stayed and ;
10. Any payment of costs already paid to the benefit of any party or to the legal representative of any party pursuant to orders of March 2021 is deposited into a controlled monies account and held on trust for all the parties until after the final determination of all of the proceedings.
11. That leave be granted to the third respondent to file and serve an affidavit and submissions in support of the orders sought herein within 7 days of the husband advising the court and all the parties simultaneously of his current address for service.
12. That leave be granted to the third Respondent to file and serve an affidavit and submissions in support of the orders sought herein within 7 days of the wife advising who accepts service on behalf of the entities in her control listed in order 1.
13. Any other order that the court deems convenient or necessary including the granting of leave or dispensation with the rules or regulations to give effect to the orders sought herein.
14. Interim injunctions in terms deemed fit by and convenient to the court restraining monies held or received on exchange of contract for the sale of D Street in breach of the courts orders of March 2021 pending further order.
It can be seen that Order 1 seeks relief directly against the husband and the named companies.
At [409] of the primary judgment, I held as follows:
Ms Gilliam also makes an undisputed claim for repayment of the money she lent to the husband. One residual question is how much remains owing after the amounts disbursed to Ms Gilliam during the proceedings. This raises the question of how the payments to Ms Gilliam from the Controlled Monies Account should characterised. Nothing was said in the Court's orders about the $25,000 released to Ms Gilliam on 8 May 2020. In the orders made on 3 December 2019, the characterisation of the payment of $50,000 was reserved to final hearing. The balance of $45,000 which was released came to Ms Gilliam through Barre Pty Ltd, which owned the funds in the Controlled Monies Account: Barre & Barre and Ors [2020] FamCA 455. Since Ms Gilliam was present as a party in these proceedings as a creditor only, I characterise $125,000 as partial repayment of the debt owed by the husband to Ms Gilliam, leaving a balance owing of $108,000.
Order 1 also appears to be the same or similar to the relief sought by Ms Gilliam, and already considered in the superannuation judgment. At [35] of that judgment, I held:
In my view, Ms Gilliam has not established any basis for orders in her favour, to discharge a debt owed by the husband, against any of the named corporations or either the assets of the SMSF or the wife as the remaining capable director of either trustee. None of the orders sought by Ms Gilliam regarding superannuation should be made.
As outlined at [7] above, it can be seen that Ms Gilliam has received a partial repayment of the debt owed to her by the husband. The husband is the debtor, thus, there is no basis to order judgment against other entities for the balance. Although Ms Gilliam appears to believe that she would be denied a remedy for the balance of her debt, this is not so. She has remedies in the bankruptcy of the husband through her status as a creditor, a status which is clear from the primary judgment; Barre at [13]. She may also have remedies if she succeeds in her claim to a de facto relationship, although this is undetermined. I note that at present, the husband’s trustee in bankruptcy is enjoined by the orders of 8 March 2021 from making any dividend distribution to creditors, pending further order.
Orders 2 – 4 seek relief directly against the wife. No basis for those orders could conceivably exist. For this reason, I did not list them for hearing. They reflect a belief held by Ms Gilliam that the wife should be treated, for no ascertainable reason, as a co-obligor with the husband in favour of Ms Gilliam. They will be dismissed.
Order 5 seeks that if the wife or her agents fail to take the steps necessary to give effect to the other orders sought, then a Registrar be substituted to do what is necessary so the orders may take effect. As I dismissed Orders 2 – 4, the wife is not required to undertake any action, and so this Order becomes redundant.
Accordingly, the hearing of Ms Gilliam’s application in respect of the remaining Orders 6 – 14 was listed on 9 September 2021.
Orders 6 and 7 in effect seek some form of costs order in favour of Ms Gilliam. Order 8 seeks a dollar for dollar costs order in her favour.
Order 9 seeks a stay of costs orders made in “March 2021”. The only order relating to costs made in March 2021 was an order, made on 8 March 2021, reserving all questions of costs.
Orders 11 and 12 seek directions for Ms Gilliam to put on further evidence about costs, while Order 13 seeks that the rules of Court be dispensed with.
Orders 10 and 14 seek some form of preservation of a fund, pending orders being made in Ms Gilliam’s favour.
I am not persuaded any of these orders should be made. The central orders sought are Orders 6, 7 and 8. The others are ancillary to or consequential upon the making of Orders 6, 7 and 8. Thus, the main question is whether Ms Gilliam should receive a costs order in her favour of any sort.
APPLICABLE LAW
The relevant principles with respect to costs in this Court are well settled, and are set out in detail in the Full Court decisions of Parke & Estate of the Late A Parke (2016) FLC 93–748 and Atkins & Hunt [2017] FamCAFC 131.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) is the central provision. In proceedings to which the Act applies, the starting point is that each party shall bear his or her own costs: s 117(1). If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs, and security for costs as the Court considers just: s 117(2). An applicant for costs need not establish extraordinary or exceptional circumstances, however there must be circumstances which, at the absolute discretion of the Court, justify a costs order. As the High Court made clear in Penfold v Penfold (1980) 144 CLR 311, s 117(2) requires a finding of justifying circumstances before any costs order can be made.
In determining whether a costs order should be made and in what form, the Court has regard to the considerations set forth in s 117(2A) of the Act, namely:
(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.
It is well-settled that no one factor has priority under s 117(2A), nor must more than one factor to be satisfied. There may be a dominant or outstanding feature that makes an order for costs appropriate, and thus, although any one factor may be sufficient, no one factor is essential.
The Rules of Court should also be considered. The Family Law Rules 2004 (Cth) (“2004 Rules”) have been repealed as of 1 September 2021 (Family Law Repeal Rules 2021 (Cth), Schedule 1). The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) commenced on 1 September 2021 (“the new Rules”). These apply to proceedings not finally determined before the repeal of the 2004 Rules (FCFCOA Practice Direction – TRANSITIONAL ARRANGEMENTS, Clause 2.1).
Rule 1.05 of the new Rules defines “costs” as “an amount paid or to be paid for work done by a lawyer, and includes expenses”. This definition is materially identical to the definition in the 2004 Rules.
However, it should be noted that the r 1.16 of the 2004 Rules also contained a definition of “expense” – “an amount paid to a third party, other than a lawyer, for work done in a case or services provided for a party”. This definition led authorities decided under the 2004 Rules to hold that a self-represented litigant may sometimes recover actual disbursements paid to third parties in the course of the proceedings, pursuant to the Court’s power to award costs: Casley & Casley [2010] FamCAFC 189. There is no definition of “expense” in the new Rules, and accordingly, given the apparently intentional omission, the definition of costs in the new Rules may not extend to expenses paid by a self-represented litigant to third parties. Regardless, on the view I take, it is not necessary to further consider this question.
Chapter 12 of the new Rules now deals with costs. Rule 12.01(3) provides that Chapter 12 does not apply where a Family Court is exercising its jurisdiction under s 35, 35A or 35B of the Bankruptcy Act. As I explained at [5], this judgment is not concerned with any bankruptcy issues.
Accordingly, rule 12.13 relevantly provides that:
(1) The court may make an order for costs on its own initiative.
(2) A party may apply for an order that another person pay costs.
(3) An application for costs may be made:
(a) at any stage during a proceeding; or
(b) by filing an Application in a Proceeding within 28 days after the final order is made.
It is a basic principle that an order for costs is compensatory and is not to be used to punish parties: Latoudis v Casey (1990) 170 CLR 534; Cachia v Hanes (1994) 179 CLR 403 (“Cachia”); Oshlack v Richmond River Council (1998) 193 CLR 72 at [1]. Costs are awarded by way of indemnity; not as compensation for lost earnings, much less as a reward for a litigant's success: Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555 at [33]. In Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at [91] and [92], the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) referred only to costs in the conventional sense, and could not, for instance, permit the Court to order a non-party to incur expenditure for litigation over which they had no control. “Costs” in s 117(2) is limited to the definition as provided in the Act. This interpretation was then followed in the Full Court: B v J (2006) FLC 93-259.
It is also well established that self-represented litigants cannot obtain a costs order. The “costs” provided for in the new Rules do not include time spent by a litigant who was not a lawyer in preparing and conducting his case; such costs are confined to money paid, or liabilities incurred for professional legal services: Cachia at [6]. The definition of “costs” in r 1.05 of the new Rules makes this clear.
DISCUSSION
Ms Gilliam argued that she is the only party “truly insolvent” in the proceedings. She stated she owes approximately $130,000 in legal fees to lawyers who previously acted for her. However, she also conceded this amount was “across both proceedings”, that is, for these proceedings and the de facto proceedings. She provided no breakdown of what amount for costs related to these proceedings, and what amount related to the de facto proceedings.
I will accept that Ms Gilliam is in difficult financial circumstances and that she has incurred some costs payable to her former lawyers in these proceedings, prior to January 2020. She applied to intervene on 18 January 2019. She was added as a party to the proceedings on 8 May 2019 by consent, and received a distribution of $25,000. She had also filed an Application in a Case seeking $150,000 be paid to her lawyers from a controlled monies account. On 3 December 2019, $50,000 was released to Ms Gilliam: Barre & Barre and Ors [2019] FamCA 907. However, she was self-represented by January 2020, before any final hearing took place (as had been originally listed for January 2020).
The question is, therefore, whether there are any justifying circumstances for Ms Gilliam to receive an award of costs prior to January 2020. If the answer to that question is in the negative, none of the orders sought by Ms Gilliam should be made. For the reasons which follow, the answer is in the negative.
Section 117(2A)(c) of the Act requires the Court to consider the parties’ conduct, specifically conduct
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.
In Northern Territory v Sangare (2019) 265 CLR 164 at [25] (“Sangare”), the High Court referred to factors such as unreasonable delay and want of the cooperation required of litigants to ensure the “just resolution of the real issues in civil proceedings with minimum delay and expense”[1], as ones which may be taken into account in determining whether a costs order should be made.
[1] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [90].
Sangare makes clear that the relevant Court Rules should also be taken into account when the Court is exercising its discretion on costs. Under the 2004 Rules, the Court’s overarching purpose was to ensure that “each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Rule 1.04 of the new Rules specifies the “main purpose” of the Rules, which is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”, as provided in s 67 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the new Act”), which commenced on 1 September 2021. Section 37 of Part 5, Schedule 5 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act2021 (Cth) provides that Division 4, Part 5 of Chapter 3 (Case management) of the new Act “applies in relation to a proceeding commenced before, on or after the commencement day,” which was 1 September 2021. Section 67(1) provides that:
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible
Section 68 of the new Act obliges parties to conduct themselves in accordance with the overarching purpose.
Prior to 1 September 2021, the 2004 Rules required the Court to apply those Rules to promote and achieve the main purpose in r 1.04: rr 1.06 and 1.07. Rule 1.08 of the 2004 Rules imposes on the parties’ obligations to, amongst others, promote and achieve the main purpose of the Rules, including readiness for Court events, assisting the just, timely and cost effective disposal of cases, and being satisfied there is a reasonable basis for alleging, denying or not admitting a fact.
Therefore, it is clear that there were, and are, very similar obligations on the parties to achieve a just, quick and cost effective result, both before and after 1 September 2021.
As noted, the primary proceedings concerned the enforcement of a binding financial agreement between the wife and the husband. Ms Gilliam was a party as a creditor of the husband. Nonetheless, she made several applications seeking orders against the wife directly, as well as the husband and several companies associated with the husband.
In the primary judgment, I recorded:
116. The de facto proceedings were listed on 1 October 2020 for final hearing. On 2 September 2020, Ms Gilliam filed an amended Application in a Case in these proceedings seeking an extravagant range orders, many of which appeared to lack any jurisdictional basis, including orders restraining dealings with a property held in a Self-Managed Superannuation Fund, discussed later in these reasons. This remains to be dealt with. The de facto proceedings, which were once intended to be dealt with consecutively with these proceedings, have also been adjourned part-heard.
117. It can be seen that since the trial in February 2020, these proceedings have been beset by constant interlocutory applications and problems relating to the necessity to afford the husband and Ms Gilliam procedural fairness as self-represented litigants. The amount of Court time required to manage the numerous Applications which have been made became excessive and caused considerable delay in the finalisation of judgment.
In the superannuation judgment at [27] – [34], I set out the wide ranging claims and arguments of Ms Gilliam against properties which are the subject of the binding financial agreement. I have set out [35] of the superannuation judgment earlier in these reasons, wherein I found that Ms Gilliam failed to establish any basis for orders in her favour.
As outlined above, it is clear that the Act requires parties to demonstrate justifying circumstances before the Court will award costs in their favour. Whilst these circumstances need not be exceptional or extraordinary, I am not persuaded that Ms Gilliam has established any circumstance justifying a cost order in her favour prior to January 2020 in these proceedings, even allowing for difficulties in her financial circumstances. On the contrary, Ms Gilliam’s conduct in the proceedings counts against any exercise of a costs discretion in her favour. As seen in [45] and [46] above, Ms Gilliam has a marked history of seeking extravagant orders without a jurisdictional basis. Having also had regard to the requirements for parties to ensure the just and efficient resolution of disputes ([40] – [42] above), I am of the opinion that a costs order would be inappropriate.
A dollar for dollar costs order is only usually granted as a last resort where one party to property settlement proceedings is financially disadvantaged and the Court is persuaded, after considering s 117(2A), that such an order is necessary to create a level playing field between the litigants: Atkins & Hunt (2018) 57 Fam LR 128 at [46] and [47]. It may also be appropriate where a financially advantaged party has not given proper disclosure: G & T (2003) 32 Fam LR 101.
Ms Gilliam seemed to believe that she was entitled to claim against the entire asset pool which is the subject of the binding financial agreement, as well as superannuation assets, as a source for her to recoup the money she lent the husband. However, as I explained in the primary and the superannuation judgments, this is not correct. She is a party to these proceedings as a creditor of the husband.
On the question of costs, I am unaware of any authority in any Australian court which holds that a dollar for dollar costs order could ever be appropriate in favour of a self-represented litigant, especially one who has been joined to proceedings only as a creditor of another party. Such an order appears contrary to established principle. But in any event, I am unable to accept there is any basis for such an order in favour of Ms Gilliam in these proceedings.
Ms Gilliam also seeks further time to put on evidence and submissions. I reject her request, as I am satisfied that she has had sufficient opportunity to do so. Taking account of the overarching purpose set out in r 1.04 of the 2004 Rules and s 67 of the new Act, I am not inclined to allow Ms Gilliam any further opportunity to put forward arguments about costs. These proceedings must achieve finality.
Accordingly, Ms Gilliam’s application, contained in her Minute of Order filed on 12 July 2021, will be dismissed.
WIFE’S APPLICATION FOR COSTS
Finally, I note the wife applies for her costs of this application against Ms Gilliam. The wife argues that Ms Gilliam has been wholly unsuccessful, and having regard to [409] of the primary judgment and [45] of the superannuation judgment, Ms Gilliam should have known she had no chance of success.
By her Case Outline dated 6 September 2021, the wife seeks $3,025 on an indemnity basis or, in the alternative, 30% of that amount as representing party/party costs. This figure was based upon five hours of professional time at $550 per hour. During the course of submissions, the solicitor for the wife claimed an additional hour.
The Court has power to fix a specific sum for costs. I accept the circumstances of this case makes it desirable for a specific amount to be fixed, “so as to avoid the parties being involved in lengthy, contentious and expensive assessment of the costs,” and particularly where there is already an acceptable basis upon which to determine the appropriate amount: Sfakianakis & Sfakianakis [2019] 59 Fam LR 419 at [37]. I take account of Ms Gilliam’s financial circumstances, but the position of all parties in the litigation must be considered by the Court. I am satisfied a costs order should be made against her in favour of the wife. Bearing in mind Ms Gilliam is self-represented, I am not persuaded an indemnity costs order is warranted.
I will order Ms Gilliam to pay the wife’s costs of the application, which are the subject of this judgment, fixed in the amount of $1,100.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Dated: 20 September 2021
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