Brownless and Warren (No. 2)

[2018] FamCA 257

FAMILY COURT OF AUSTRALIA

BROWNLESS & WARREN (NO. 2) [2018] FamCA 257

FAMILY LAW – COSTS – Where party wholly unsuccessful

Family Law Act 1975 (Cth) s 117

Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248

Prantage & Prantage (2013) 49 Fam LR 197

APPLICANT: Mr Brownless

RESPONDENT: Ms Warren

FILE NUMBER: SYC 5430 of 2015

DATE DELIVERED: 19 April 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 19 April 2018

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Blackman Legal

Orders

1. The Applicant pay the Respondent’s costs of and incidental to the proceedings commenced by way of an initiating application filed on 18 August 2015 on a party-party basis as agreed or as assessed within 14 days of the date of agreement or assessment

2. Order 1 above excludes that part of the proceedings relating to the injunction proceedings before his Honour Justice Watts for which a costs order has already been made.

3. Mr Brownless is to deposit into the trust account of Blackman Legal Pty Ltd, BSB: … Account: … Westpac, by 4:00pm on Monday 23 April 2018 the sum of $127,000.

4. Mr Brownless is restrained from leaving the Commonwealth of Australia pending compliance with order 1 and 3.

5. IT IS REQUESTED that the Australian Federal Police give effect to order 4 of these orders by the placing the name of Mr Brownless, born in 1946, on the Airport Watch List in force at all points of departure and arrival in the Commonwealth of Australia and maintain the Mr Brownless on the Watch List until the Court order its removal;

6. The solicitor for the Respondent is to advise my chambers of the compliance of Mr Brownless with order 3 above, at which point orders 4 and 5 will be discharged in chambers.

7. That an injunction is granted restraining the applicant from selling, transferring, encumbering, alienating or adversely dealing with his interest in the property situated at lot Q Street, L Town in the state of NSW, being the land described as lot … in deposited plan … (“the L Town property”) pending his compliance with order 3 above and until further order.

8. Mr S is restrained form doing any act or thing so as to cause any monies too be paid to Mr Brownless pursuant to any contract for the sale for the L Town property pending compliance by Mr Brownless with order 3 above.

9. Orders 7 and 8 above are contingent upon the Respondent providing an undertaking to damages in accordance with the form by filing such with the Court by 2:00pm on 20 April 2018, failure to lodge such undertaking will result in an immediate discharge of those orders without further order.

10. A sealed copy of these orders is to be served upon Mr S by posting then to T Street, U Town NSW … and PO box … U Town … and by SMS message to …

11. Liberty is granted to the parties and Mr S to restore this matter before me on 12 hours’ notice to the other parties.

12. The matter is otherwise adjourned to 4:00pm on Monday 23 April 2018 before his Honour Justice Gill at the Canberra registry of the Family Court of Australia and the parties are granted leave to appear by telephone.

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 Brownless & Warren (No. 2) 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 5430 of 2015

Mr Brownless

And

Ms Warren

EX TEMPORE REASONS FOR JUDGMENT

1. Supreme Court proceedings were commenced by the respondent for possession of her property at Suburb B.  Cost orders were made in those proceedings, which I understand are pending assessment in that jurisdiction.  The applicant Mr Brownless filed an application for declaration of a de facto relationship and relief pursuant to s 90SM of the Family Law Act on 18 August 2015.  On 28 October 2015 the respondent sought the dismissal of that application.  In February 2016 the respondent made an offer to settle both sets of proceedings, the Supreme Court proceedings and the Family Court proceedings for the sum of $200,000.  That offer was not taken up by the applicant.

2. On 27 March 2017 costs orders were made against the applicant by Justice Watts in relation to injunctive relief that had been sought by the applicant. 

3. On 27 February 2018 the application was dismissed for want of jurisdiction. 

4. Application is now made by the respondent for costs, initially on an indemnity basis in a fixed sum, or then as assessed on an indemnity basis, with a fall-back position that they be paid on a solicitor client basis in a fixed sum, or alternatively as assessed, with a further fall-back position that they be on a party-party basis again in a fixed sum, sought presently in the sum of $85,500 or as assessed. 

5. Further orders are sought to secure the payment of the costs award should it be made.  These will be returned to later.

6. In this case there should be an order for costs despite the starting position pursuant to s 117 of the Act being that each party should bear their own costs. What justifies it in this case are a number of circumstances.

7. In particular the applicant was wholly unsuccessful as failing to establish jurisdiction.  Secondly, an offer in writing was made to dispose of both these and the Supreme Court proceedings through the payment of $200,000 to the applicant, which would have placed him in a far superior position for the combined disposition of the two sets of proceedings rather than the summary dismissal he suffered in the Supreme Court, and the failure to attract jurisdiction he suffered in this jurisdiction.  The further financial circumstances of the parties are limited in respect of determining the costs matter.  The respondent has a limited income of a pension, although she has reasonably significant assets following the sale of her Suburb B property.  The applicant put on no direct evidence as to his current circumstances, although the evidence in the proceedings indicates that he undertakes works as a professional, although the financial statement that was available in those proceedings and tendered in these proceedings as exhibit R2 also shows that he has a reasonably limited income.  He has assets which were until recently tied up in a property held at L Town, but which on his current admission have now been liquidated through the sale of that property, his assertion being that the sale price of the property of $300,000 has left him now with somewhere between $150,000-$200,000 held in cash reserves secreted in various locations following the payment of the expenses of sale, a mortgage and various other legal and other expenses that he has sustained. 

8. As to the nature of the costs order sought, the order is firstly sought on an indemnity basis.  The respondent has correctly identified that departure from the ordinary rule that costs be paid on a party-party basis requires exceptional circumstances.  To do so, the respondent points to the applicant's failure in the proceedings and says that the applicant should have known that he had no prospects.  I observe that it is one thing to not be successful in proceedings but different to be able to, on an objective basis, be required to recognise that there were no prospects, particularly where, as here, some of the indicia of a de facto relationship were present and the subject matter of the litigation contains no bright line division as to when a de facto relationship is or is not in place but rather involves the weighing of criteria.  It can be observed that it may have been imprudent for the applicant to have commenced the proceedings in this Court, but that imprudence is not sufficient to justify indemnity costs.  I am also unable to conclude, as was urged upon me, that the proceedings were taken for an ulterior motive or in wilful disregard of known facts.  I accept that the reasons to depart are not the subject of closed categories but are as the justice of the case demands (see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248). At the same time an order for indemnity costs is a very great departure from the normal standard and it requires circumstances that justify such a very great departure. In considering those circumstances it is important not to conflate the conduct of the applicant towards the respondent with his conduct of the proceedings (see Prantage & Prantage (2013) 49 Fam LR 197). The conduct of the proceedings here, while sufficient to justify a costs award, is not sufficient to justify costs other than on a party-party basis. 

9. While an order for a fixed sum is an attractive proposition in this case in order to end the proceedings (I have again been given significant assistance by the written submissions prepared by Senior Counsel which helpfully identify that the authorities require confidence in the approach taken to the estimate as being logical, fair and reasonable).  Unfortunately, there is insufficient material before me to enable me to come to that conclusion.  I hasten to add that is not the same as saying that the amount that has been calculated is not logical, fair or reasonable, simply that I am not in a position to assess that it is so.  Accordingly, no order for a fixed sum will be made in these circumstances.

10. Two other matters arise.  Costs are sought in respect of the cost proceedings.  While it may readily be observed that the application for costs should not be characterised as having been wholly successful, given that the application for indemnity costs has been refused, the close connection of the costs application to the success in the overall proceedings for the respondent is such as to justify departure from the usual rule and so an order will be made for the costs of the costs application in favour of Ms Warren.

11. Finally a question has been raised as to the certification for Senior Counsel.  It is asserted Mr Brownless that this matter was not one of a complexity that required Senior Counsel.  I observed that this was factually a very difficult case in terms of jurisdiction.  The difficulties in terms of the facts that were presented to the Court, particularly in the context where it was necessary to weigh competing inferences to be drawn from those facts, justified Senior Counsel's involvement and it was appropriate that that involvement continue in terms of having continuity of representation for Ms Warren through the costs aspect of the proceedings and so I certify as to senior counsel. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 April 2018.

Associate: 

Date:  24 April 2018