Bell and Bell (No.2)
[2017] FCCA 2138
•7 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELL & BELL (No.2) | [2017] FCCA 2138 |
| Catchwords: FAMILY LAW – Costs – whether the father should pay the mother’s costs of parenting proceedings in which the father, as Applicant, continued the proceedings after three family consultants recommended that his son spend no time with him. |
| Legislation: Family Law Act 1975 (Cth), ss.117, 70NFB(1), 117AA, 117AC, 118, 117(2A), 117(2), 11F |
| Kohan & Kohan (1993) FLC 92-340 Hawkins & Roe [2012] FamCAFC 77 Colgate-Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 |
| Applicant: | MR BELL |
| First Respondent: | MS BELL |
| File Number: | MLC 12264 of 2007 |
| Judgment of: | Judge Small |
| Hearing date: | 3 February 2017 |
| Date of Last Submission: | 15 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 7 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Applicant: | Self-Represented |
| Counsel for the Respondent: | Ms Mimmo |
| Solicitors for the Respondent: | Plaza Legal |
ORDERS
The Father shall pay the costs of the Mother in these proceedings on a party and party basis as agreed, or failing agreement as taxed, from the date of the letter of offer prepared by the wife’s solicitor, being 15 June 2016, to the date of her filing her costs submissions, being 17 February 2017.
The husband shall pay those costs no later than 7 March 2019.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bell & Bell (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 12264 of 2007
| MR BELL |
Applicant
And
| MS BELL |
Respondent
REASONS FOR JUDGMENT
On 3 February 2017 the court gave judgment and made final orders in the substantive parenting proceedings between Mr Bell (“Mr Bell” or “the father”) and Ms Bell (“Ms Bell” or “the mother”) in relation to the care arrangements for their son X born (omitted) 2003 (“X”).
The substantive proceedings were initiated by Mr Bell on 25 August 2014 with the final trial being held over three days from 13 July 2016.
Throughout the proceedings, Mr Bell had sought orders for X to spend time with him, but at the final hearing he sought only orders for X to attend counselling so that he could explore his negative feelings about his father in the hope that he might be able to spend time with him in the future.
The final orders pronounced on 3 February 2017 provided that X would spend time and communicate with Mr Bell only at X’s instigation and in accordance with his wishes. The orders did not force X to attend counselling.
After the final orders had been pronounced 3 February 2017, the solicitor for the mother sought an order for her client’s costs of the proceedings and orders were made for her to file written submissions on that question by 17 February 2017 with the father to file written submissions in response by 17 March 2017.
Both parties complied with those orders.
The law
The law in relation to costs in family law cases is found in s.117 of the Family Law Act 1975 (Cth) (“the Act”).
Subsection (1) of that section states as follows:
Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this act shall bear his or her own costs.
Subsection 70NFB(1) refers to the powers of the Court upon finding that a party has contravened court orders, sections 117AA and 117AC refer to costs of proceedings relating to overseas enforcement and international conventions, and section 118 refers to costs in “frivolous or vexatious proceedings”. None of those sections is relevant to these proceedings.
Section 117(2) states as follows:
If, in proceedings under this Act, 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)[1] 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.
[1] Subsections (4), (4A) and (5) refer to decisions about costs of an Independent Children's Lawyer, and costs being awarded against an officer of a state or territory child protection agency, none of which is relevant to these proceedings.
In other words, if the Court is of the opinion that there are circumstances that justifies it making a costs order, the Court’s discretion is very wide indeed, requiring the Court only to make such orders as it considers just.
Section 117(2A) then sets out the matters to which the court must have regard in deciding whether it is just to make a costs order against a party:
(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.
In addition, the Court has power to make an order for indemnity costs where a party has incurred costs pursuant to a costs agreement which departs from the usual scale of costs, and where the Court finds that there are exceptional circumstances (Kohan & Kohan (1993) FLC 92-340). I will return to that issue later in these Reasons.
The mother’s submissions
The mother filed her written submissions on 17 February 2017. She sought an order that Mr Bell pay, on an indemnity basis, the sum of $35,085.01, said to be the costs of the following:
a.Response filed on 10 October 2014;
b.Affidavit filed on 10 October 2014;
c.Appearance at court on 15 October 2014;
d.Appearance at court on 19 may 2015;
e.Affidavit filed on 6 July 2016;
f.Case outline filed on 8 July 2016;
g.Appearance at court for final hearing on 13 July 2016, 14 July 2016 and 15 July 2016;
h.Appearance at court for judgement on 3 February 2017
i.Submissions filed in support of Ms Bell’s application for costs.
The sum sought was allocated as follows:
Counsel’s fees $7500
Dr P’s fee $1300
Legal costs $23,670.98
WIP $1894.03
Estimated further work $720
Total $35,085.01
On 12 May 2015, Family Consultant Mr N (“Mr N”) had released a memorandum following his interviews with the parties and X pursuant to s.11F of the Act.
In that memorandum, Mr N suggested that it would be counter-productive for Mr Bell to continue the proceedings seeking orders to spend time with X. I will return to the detail of that report later in these Reasons.
The relevance of that memorandum here is that the mother’s submission document states that only the following items were incurred after 19 May 2015, which I can only infer was the date on which Ms Bell or her solicitors received that memorandum:
Counsel’s fees $7500
Dr P’s fee $1300
Legal costs $17,715.77
WIP $1894.03
Estimated further work $720
Total $29,129.80
The mother’s submission for her costs is said to be based on considerations under ss.117(2A)(a), (c), (e), (f) and (g).
Section 117(2A)(a) the financial circumstances of each of the parties to the proceedings;
In relation to the parties’ financial circumstances pursuant to s117(2A)(a), the mother says only that she works part-time, for about 28 hours per week, and that she is entirely responsible for all expenses in relation to X’s support. She makes no further submission in relation to her financial circumstances.
In relation to the father’s financial circumstances the mother simply submits:
[…]that Mr Bell has the capacity to comply with an order for costs as made against him or in the alternative can do so in instalments.
Section 117(2A)(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;
In relation to the parties conduct pursuant to s117(2A)(c), the mother refers to the judgment of the Full Court of the Family Court of Australia in Hawkins & Roe [2012] FamCAFC 77, where the majority, May & Ainslie-Wallace JJ said, at paragraph 147:
Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of the child[2], then a judge may well conclude that there are circumstances justifying an order for costs.
[2] Emphasis in the mother's submission.
In this case, there were three expert reports: two memoranda prepared pursuant to s.11 F of the Act, and one full family report.
In the first s.11F memorandum, dated 15 October 2014 Mr B wrote the following under the heading “Future Directions”:
Whilst the testing of evidence would be required to ascertain to what extent (if any) either parents’ (sic) version of events is a correct and true representation of reality, the damage is to some extent done. Only a slow, gradual and non threatening strategy of involvement by Mr Bell, with the assistance of Ms Bell will perhaps go some way in changing X’s mind set against the notion of him spending time with his father.
Mr B then makes several recommendations as to how the matter might progress, including the following:
That X’s views are respected and that he is not forced to spend time with his father. (However this writer does NOT agree at this juncture with X’s view that his father should be eliminated from his life forever).
Mr B’s further recommendations were for the family to participate in the Parenting Orders Program, that the parties contact a children’s contact centre to organise supervised time between X and his father, and that the matter return for a further section 11F intervention to review progress in the matter.
There is nothing in those recommendations which might indicate that Mr Bell would be ignoring expert advice were he to persist with the proceedings.
The second s.11F memorandum was prepared by Mr N on 12 May 2015. Mr N wrote the following under the heading “Future Directions”:
· […] (X’s) views were very definite and are unlikely to change within the foreseeable future. On that basis, the family consultant would envisage significant difficulties emerging in relation to implementing any arrangement, including supervised time, for X to spend with his father.
· The family consultant is concerned about Mr Bell’s attitude towards the current dispute. In many respects, Mr Bell’s comments suggested that he was more intent on pursuing, or even ‘punishing’ Ms Bell, as opposed to seeking to improve or repair his damaged relationship with his son.
· Whilst appreciating that it would be very difficult for Mr Bell to withdraw from the current proceedings, the family consultant nevertheless believes that it would be counter-productive for Mr Bell’s attempts to improve his relationship with his son, if he was to pursue Court Orders for him to spend time with X. As explained to Mr Bell, the family consultant believes that if he chose to do so, an unfortunate outcome might be that X becomes more entrenched in his views and simply perceives his father as someone who is seeking to ‘punish’ or ‘hurt’ his mother. Given the important and close relationship X has with her, such perception about his father’s motivation will most likely only drive a further ‘emotional wedge’ between them that will make it even more difficult for their relationship to be repaired.
· The family consultant would encourage Mr Bell to consider an alternative course of action whereby he withdraws from the current Court process, but at the same time provides X with a clear message that he respects X’s current views and will not force his son to spend time with him against his wishes. He could also provide a message to X that he will wait until X is ready to spend time with him in the future. The family consultant would suggest that such an approach is less likely to entrench X’s negative views about him, but instead may provide a future opportunity for them to repair the father/son relationship.
The expert opinion in that memorandum could hardly have been clearer.
The family report of Ms B is dated 20 April 2016.
Ms B describes Mr Bell’s presentation as “strongly focused on “setting the record straight””.
At paragraphs 37 to 39 of that report, Ms B says:
37. Mr Bell was able to articulate the emotional turmoil X would be experiencing, as a result of him pursuing contact with X. Mr Bell reported his belief that Ms Bell has been instrumental in influencing X over the years until such time that X himself has rejected contact with Mr Bell. Mr Bell reiterated that he would not give up on trying to have time with X, explaining his belief that as he was adopted he holds strong family values. He stated his determination to show that he has not been coercive, abusive either verbally or physically, or manipulative during the years of the relationship or since separating, which might be construed as contributing to X not wanting contact with him.
38. Mr Bell said that he has written a letter to X explaining that he loves him and wants the ICL to read this to X without Ms Bell being witness to that letter. Mr Bell said that he is determined for the court to “test every piece of evidence” in support of his explanation responding to the allegations made by Ms Bell.
39. Contrary to his application, Mr Bell said that he believes X would be best placed with him and his family as he is able to provide him with a balanced and protective environment. He also said that he has met his biological family with whom he has maintained a positive relationship since he was 18 years old. He holds strong beliefs and attitudes about maintaining a family unit. This appeared to be a reflection of his own experiences and is considered to be the motivating factor in his pursuit in the court. He explained that he wants to have contact with X but understands that X does not want that contact so he has pursued the legal pathway to ensure his voice is heard and that eventually X would know that he was wanted by Mr Bell.
Later in the report under the heading “Evaluation”, Ms B made the following observations and recommendations:
60. […] While Mr Bell feels the injustice of the situation, his pursuit of proving himself right may well impact his capacity to remain child focused. Specifically, Mr Bell reported that he understands that X does not want to spend time with him, but Mr Bell continues to pursue the matter of contact to X’s detriment.
Nevertheless, despite those comments, and the comments of Mr N, Ms B’s recommendation was for X to attend counselling “to address and resolve issues within the father-son relationship” and “with the aim of developing and supporting the relationship between him and Mr Bell”. Ms B also recommended that both Mr Bell and Ms Bell participate in the Parenting Orders Program.
I also note that Mr Bell’s whole case was based on his belief and allegation that Ms Bell had engaged in a deliberate and conscious pattern of behaviour designed to alienate him and exclude him from X’s life. He referred to that behaviour throughout his written and oral evidence as “a master plan”.
In my judgment in the substantive proceedings in this matter I noted the following:
394. It was Ms B’s evidence that she thought that Mr Bell’s motivation in bringing the litigation was “two pronged” in that he genuinely wanted to have a relationship with X, but that in the absence of that relationship, it was important to him that his voice be heard in relation to the reason for X’s resistance to seeing him.
395. That is not an unreasonable motivation, but on the basis of all the evidence before the court I find that at least part of his motivation has been to punish Ms Bell and cause her to spend money on these proceedings.
I made further comments in the course of my Reasons for Judgment to the effect that I could not find that Ms Bell had engaged in the deliberate and conscious “master plan” alleged by the father.
However, that finding is far from a finding that “false allegations” were made during those proceedings.
Nevertheless, the comments of the experts in relation to Mr Bell’s apparent need or wish to hold Ms Bell accountable for wrongs he perceived her to have inflicted upon him are particularly pertinent in this matter.
Indeed, it could genuinely be said that in persisting with the proceedings, Mr Bell was “clearly motivated by self-interest rather than the best interests of the child”.
In my reasons for judgment I described him as “a confident, perhaps even cocky man, who appeared to want not only to repair his relationship with his son, but to ensure that the mother was held to account for what he saw as her myriad attempts to prevent him from having a relationship with X”. I do not resile from that view.
Section 117(2A)(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The orders I made on 3 February 2016 did not provide for X to either spend any time with his father unless instigated by X, or for him attend counselling in an attempt to repair that relationship.
In those circumstances it can be said that Mr Bell has been “wholly unsuccessful in the proceedings”.
Section 117(2A)(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;
On 15 June 2016 Ms Bell’s solicitors sent a letter to Mr Bell offering to settle the matter in the following terms:
1.That the child of the marriage X born (omitted) 2003 (“X”) live with the mother.
2.That the mother have sole parental responsibility for X.
3.That X spend time and communicate with the father at his discretion and election.
4.That X participates in independent counselling that focuses on issues arising from dysfunctional father-son relationships, at the expense of the Father.
5.That X participates in independent counselling that focuses on repairing and developing his relationship with the Father, at the expense of the Father.
6.The father to participate in a Parenting Order Program and to provide evidence of completion of same to the mother’s solicitors.
7.The Mother to participate in a Parenting Order Program and to provide evidence of completion of same to the Father.
8.That the parties encourage and foster X’s relationship with them and neither party denigrate the other or members of the other’s family to the child, and take into account the wishes of X in relation to them spending time with X.
In her submissions the mother notes that that offer essentially reflected the recommendations of Ms B in her family report.
Mr Bell did not accept the offer to settle the proceedings on the above terms and chose to take the matter to trial seeking orders in almost identical terms.
The father’s submissions
Mr Bell submissions began by referring to s.117 of the Act and stating that he:
[..] believes this statement about bearing your own costs is totally relevant in this matter, as this case DOES NOT (sic) present as an extreme circumstance or exceptional to which a parenting matter should have costs awarded against applicant father (sic), and the case had merit and did not constitute a hopeless application.
He points out that he went to trial agreeing with Ms B’s recommendations, and notes further that the Independent Children’s Lawyer was also of that view that the Court would serve X’s best interests by following Ms B’s recommendations.
Mr Bell then addresses the matters set out in s.117(2A).
Section 117(2A)(a) the financial circumstances of each of the parties to the proceedings
Mr Bell says that he has remarried and he and his wife have two young children. He says:
[..] any costs order made against the applicant father would cause extreme financial distress for him and his new family, especially his live at home dependent children.
He states that he and his family live “pay to pay”, and that he is carrying credit card debt of some $3000 in the form of monies paid to Dr P for his psychiatric report in the substantive proceedings.
He states that he would have to access his superannuation entitlements in order to pay any further debts he might incur (including, presumably, any costs order the court might make), and that he had represented himself both in the substantive proceedings and in preparing his submissions purely for financial reasons.
Section 117(2A)(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;
In his submissions Mr Bell states as follows:
Applicant Father states that he always had the best Interests (sic) of X at heart since the day he was born (omitted) 2003, and this should be evident to the court including the perseverance the applicant father displayed to try and get the recommended psychological intervention ultimately recommended for his son by the family report writer Ms B. The applicant father believes he has complied with all the requirements relating to the conduct of parties within these proceedings.
Mr Bell says that he was not afforded the opportunity to cross-examine Mr N at trial and says he would like to have asked him questions about his statements that “Mr Bell’s comments suggest that he was more intent on pursuing, or even punishing Ms Bell as opposed to seeking to improve or repair his damaged relationship with his son” and “his comments suggested that his primary motivation for doing so relates to his intention to pursue Ms Bell so that a blowtorch can be applied to her through ongoing court processes”.
It is notable in the context of this application for costs, that Mr Bell attended trial having accepted Ms B’s recommendations. That is, his application at trial was for X to attend counselling in an attempt to repair his fractured relationship with his father. He was no longer seeking orders that X spend time with him. That was a significant change from his previous position.
In those circumstances, while what I called in my Reasons for Judgment “Mr Bell’s personality vulnerabilities as described by Dr P and Mr N” have perhaps caused him to be somewhat rigid in his thinking and in his determination, right up to trial, to obtain orders that X spend time with him, I cannot find that Mr Bell displayed “a complete absence of preparedness to compromise in the face of unambiguous expert evidence”.
However, I also note my comments in my Reasons for Judgment at paragraph 392:
While both parties are to blame for the situation in which X currently finds himself, the father’s palpable hatred and contempt for the mother as seen in both his written and oral evidence, and his focus on holding her to account in some way for what he perceives as breaches of his rights as a father, permeated these proceedings.
Section 117(2A)(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
Mr Bell’s submissions note that the orders I made on 3 February 2017:
[…] did not follow the recommendations of the expert Ms B, who wrote the family report in April 2016 several years after both 11 F reports were compiled, the applicant father strongly ran his case based on his alignment to the beliefs and confidence of the expert Ms B and her recommendations which he believed were in the best interests of his son X, additionally the ICL barrister also supported the applicant father’s position throughout the trial. Her honours (sic) conclusion does not match the family report writers (sic) recommendations or ICL in respect to applicants (sic) seeking of psychological intervention, however applicant father (sic) believes this should NOT (sic) support a view of wholly unsuccessful or imply this was not a valid trial […].
Mr Bell says that pursuing the litigation was the only option available to him to “support his son to receive the psychological intervention required in order for X to have a healthy future, this was not a hopeless application without merit or hope of success”.
In light of many of the other comments made by the independent experts and by the Court about Mr Bell’s demeanour and attitude, I think this statement is a little is disingenuous, as before the family report was released, it was Mr Bell’s clear case that he wished to obtain orders that he spend time with X.
Section 117(2A)(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;
Mr Bell’s submission in relation to the letter sent to him by the mother’s solicitors about a month before trial is that the offer contained therein was not genuine because the counselling proposed would not be reportable to the court, and that all counselling was to be at Mr Bell’s expense.
Decision as to the application for costs
In Hawkins & Roe, the majority said the following at paragraph 18:
The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
When I balance all the matters set out in s.117(2A) of the Act, I find that it is just to depart from the usual situation where each party pays his or her own costs.
In particular, I note that a party’s impecuniosity is not in itself a reason not to make a costs order, and Ms Bell was put to considerable expense in the substantive proceedings.
Further, I find that the father’s conduct in insisting on a trial when he could have accepted the mother’s offer of settlement, and in his behaviour and attitude to the mother as displayed at trial and mentioned in my Reasons for Judgment, warrants an order that he pay at least some of the mother’s costs of the substantive proceedings.
Indemnity or party-party costs?
In Colgate-Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248, Sheppard J sets out in some detail the history of the law in relation to applications for costs. He then says:
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, ie 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 O 62, rr 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[3] and Handley JA in Cachia v Hanes[4] on the one hand and by Rogers J in Qantas[5] 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[6] (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[7] 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[8]:′′the categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata[9].
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 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 131at 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 721at 724(Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records[10]). 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.[11]
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.
[3] Berry v British Transport Corporation [1962] 1 QB 306.
[4] Cachia v Hanes (1991) 23 NSWLR 304.
[5] Qantas Airways Ltd v Dillingham Corporation (SCNSW 14 May 1987, unreported).
[6] Andrews v Barnes (1887) 39 Ch D 133.
[7] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397.
[8] Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (1991) FCA 225.
[9] Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) FCA 115.
[10] EMI Records Ltd v Ian Cameron Wallace Limited [1983] Ch 59.
[11] Emphasis added.
Conclusion
While I have found some of the considerations set out by Sheppard J in the passage quoted above to exist in this case, when I take the above passage as a whole, I do not believe the conduct of the father to have been so egregious as to warrant a departure from making an order for costs on a party and party basis and I decline to exercise my discretion to make that order.
In those circumstances, I will make an order that the father pay the mother’s costs of the substantive proceedings on a party and party basis from the date of the letter of offer, that being 15 June 2016 to the filing of the mother’s submissions in relation to her costs application, that being 17 February 2017.
Those costs will be in a sum as agreed and in default of agreement as taxed.
I will give the father 18 months from the date of these orders to pay those costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Small.
Date: 7 September 2017
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