Bhagat & Sandhu (No 2)
[2023] FedCFamC1F 138
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bhagat & Sandhu (No 2) [2023] FedCFamC1F 138
File number: SYC 806 of 2020 Judgment of: REES J Date of judgment: 10 March 2023 Catchwords: FAMILY LAW – COSTS – Where the applicant was wholly unsuccessful in his application – Where the application had no reasonable prospects of success – Where the applicant has prosecuted these proceedings with wilful disregard of clearly established law – Where the applicant has sought to ground his application on groundless contentions – Applicant to pay the respondent costs on an indemnity basis. Legislation: Family Law Act 1975 (Cth) ss 112(AP), 117(2A) Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Division: Division 1 First Instance Number of paragraphs: 12 Date of last submission: 10 March 2023 In Chambers: 10 March 2023 Place: Sydney Solicitor for the Applicant: Turnbull Law Solicitor for the Respondent: Sarah Bevan Family Lawyers Independent Children's Lawyer: Kathryn Renshall Lawyers ORDERS
SYC 806 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BHAGAT
Applicant
AND: MS SANDHU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
REES J
DATE OF ORDER:
10 march 2023
THE COURT ORDERS:
1.That, on or before 10 April 2023 the applicant husband pay the respondent’s costs of the Application – Contempt filed on 11 November 2022 in the sum of $3,960.
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 Bhagat & Sandhu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
On 10 February 2023, I summarily dismissed an Application – Contempt filed by Mr Bhagat (“the applicant”) in proceedings related to his marriage to Ms Sandhu (“the respondent”). The full reasons for the dismissal are set out in the reasons for judgment published on that day. For the purpose of the respondent’s application for indemnity costs, it is sufficient to say that the Application - Contempt had no reasonable prospect of success.
The respondent seeks an order that the applicant pay her costs on an indemnity basis.
It is necessary to consider that application in two steps. Firstly, having regard to the provisions of s 117(2A) of the Family Law Act 1975 (Cth), (“the Act”) should the applicant pay costs? If the answer to that question is “yes”, should costs be paid on an indemnity basis?
Each party was directed to file any written submissions in relation to the issue of costs. The husband has not filed any submissions.
Section 117(2A) provides:
(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.
There is no evidence before me of the parties’ respective financial positions or that either party is in receipt of a grant of legal aid and I have not been made aware of any offers of settlement.
The applicant was wholly unsuccessful in the application and that is a sufficient reason to order that he should pay costs.
When considering whether an order for indemnity or solicitor/client costs would be appropriate, it is instructive to revisit the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 where his Honour reviewed the authorities and said:
4. …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 ay 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). 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.
The facts of this matter are recorded in the reasons for judgment delivered on 10 February 2023.
Those reasons disclose that the husband has prosecuted these proceedings with wilful disregard of clearly established law and has sought to ground the application on groundless contentions which could not support a finding of contempt pursuant to s 112(AP) of the Act.
It is appropriate that the costs be paid on an indemnity basis.
The respondent’s estimate of costs is $3,960 which appears to be reasonable and costs will be ordered to be paid in that amount.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 10 March 2023
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