Byrd & Byrd & Ors
[2012] FamCA 206
•5 April 2012
FAMILY COURT OF AUSTRALIA
| BYRD & BYRD AND ORS | [2012] FamCA 206 |
| FAMILY LAW - PROPERTY – Application to abort hearing – Application to amend application for final orders to include application for costs during the trial |
| Family Law Act 1975(Cth) Family Law Rules (2004) (Cth) Evidence Act (1995) (Cth) |
| Vestris v Cashman (1998) 72 SASR 449 |
| APPLICANT: | Mr Byrd |
| RESPONDENT: | Ms Byrd |
| SECOND RESPONDENT: | Mr Y |
| THIRD RESPONDENT: | Ms D |
| FILE NUMBER: | SYC | 767 | of | 2009 |
| DATE DELIVERED: | 5 April 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 30 November 2011 15 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPLICANT: | Gibsons Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Newnhams Solicitors |
| COUNSEL FOR 2ND & 3RD RESPONDENT: | Mr Aldridge SC |
| SOLICITOR FOR 2ND & 3RD RESPONDENT:: | Watts Mc Cray |
Orders
The application of the wife contained in her Response to an Application in a Case filed on 30 November 2011 is refused.
The husband’s application to amend his Application for Final Orders in the manner sought is allowed and the husband is ordered to file and serve such amended Application within 14 days from the date of these orders.
The matter is listed for further mention for directions at 10.00am on 27 April 2012.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Byrd & Byrd and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC
| Mr Byrd |
Applicant
And
| Ms Byrd |
Respondent
| Mr Y |
Second Respondent
| Ms D |
Third Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an interlocutory application contained in a minute of order tendered by the husband in the trial which is part heard before me. The document was tendered on 28 November 2011 and marked as exhibit H6 in the hearing. The orders sought are as follows:
That pending further order:
1. That the wife be restrained from filing any further Affidavit evidence without leave of the Trial Judge Justice Le Poer Trench.
2. That the Wife be restrained from:
2.1. Transferring, mortgaging or encumbering, or further encumbering, dealing with or adversely affecting her interest in the properties at:
2.1.1. [The B property]; and
2.1.2. [R Street, Sydney Suburb 1]; and
2.1.3. Upon completion of the purchase of the [Sydney Suburb 3] property, that property.
2.2. Further drawing down or upon the loan facility provided by the Commonwealth Bank secured upon the [Sydney Suburb 1] property save and except to meet and pay
2.2.1. Funds necessary to complete the purchase of the property at [Sydney Suburb 3] exchanged by the wife at the purchase price of $500,000.00 but yet to be completed; and
2.2.2. Her legal costs of these proceedings; and
2.2.3. Any interest due on the said facility from time to time.
3. That the husband be granted leave to amend his Orders sought to apply for an Order for indemnity costs on a joint and several basis as against the wife and;
3.1. The Wife’s forensic accounting expert, [Ms D]; and
3.2. The Wife’s solicitor, [Mr Y].
On 15 February 2012 orders were made, by consent, as between the husband and the wife. Those orders dispensed with the necessity to consider a number of the orders sought by the husband in exhibit H6. Further, I was told by the wife on 15 February that she would not be filing any further affidavits in this proceeding and if she was unsuccessful in obtaining the orders sought by her the trial would continue and she would need to convince the Court in the normal course of a final hearing as to why she should be permitted to rely on any evidence filed after the commencement of the hearing and not filed pursuant to a direction of the Court.
On 28 November 2011 the husband filed in Court a minute of the order the husband would seek against the wife and second and third respondents if leave was granted to amend his application. That document clearly illustrates the particular costs orders he would seek. When the husband addressed on that minute I was told he no longer needed to press for orders numbered 7.1 and 7.2 in that minute. Further the orders sought enabling the husband to issue further subpoena were made on 1 December 2011.
Also before the Court is a Response to an Application in a Case, filed by the wife on 30 November 2011. The orders sought by the wife in that document are:
Orders Sought:
1. That the hearing of the within proceedings commenced before His Honour Mr Justice Le Poer Trench on 22 September 2011 be aborted.
2. In the event that the husband is granted leave to make an application to seek orders for indemnity costs as identified in his Minute of Order, that such application be listed together with this response at the first available date.
3. That the husband pay the wife’s costs of and incidental to the proceedings from 22 September 2011 to date on an indemnity basis.
The second and third respondents are Mr Y and Ms D. They oppose the orders sought against them by the husband. Mr Y was the solicitor for the wife until he withdrew from the proceeding on 28 November 2011. Ms D is an adversarial expert engaged by the wife in the proceeding. They became respondents in the proceeding when the husband filed the document in Court which became exhibit H6.
Early on the day of 15 February 2012, when the matter was before the Court, Mr Aldridge SC, counsel for the second and third respondents advised the Court that Ms D no longer wished to be an expert in the case. I note that Mr Richardson for the husband has put the third respondent (Ms D) on notice that he requires her to file an affidavit setting out the circumstances as to why she will no longer participate in the case as an expert.
In submission the husband has made clear that he would not seek to have the Court consider his application for costs against any of the respondents until the trial is concluded or alternatively final property orders are made in the proceeding were that to happen after a settlement between the husband and the wife.
Background Facts
The trial of the competing property orders sought by each of the husband and the wife was set down for hearing for four days commencing 26 September 2011. As it transpired the whole of that time was consumed in argument principally about the admissibility of experts’ reports (annexed to affidavits) sought to be relied upon by the wife. There were four judgements delivered by me in relation to that issue and they are now reported as Byrd & Byrd (expert’s report inadmissible) [2011] FamCA 803 – 26/09/2011, Byrd & Byrd (expert’s report inadmissible No 2) [2011] FamCA 804 – 27/09/2011, Byrd & Byrd (filing expert’s report during trial) [2011] FamCA 808 – 27/09/2011, Byrd & Byrd (conditional admission of expert’s evidence) [2011] FamCA 810 – 29/09/2011.
Following the delivery of the third of the determinations above cited the husband tendered the minute of order contained in exhibit H6. Following the delivery of the determination given 29 September 2011 Mr Y, who had represented the wife to that point in time, announced that he could no longer do so as he regarded himself in potential conflict with her because of the orders sought in exhibit H6. Ms Rees SC, as she then was, who had appeared for the wife instructed by Mr Y, then indicated she could no longer act for the wife as she did not have instructions from Mr Y to do so. She none the less continued to appear on that day amicus in order to ensure the wife was not left unrepresented in the face of the Court. The hearing was shortly thereafter adjourned.
Each of the wife, the husband and the second and third Respondents, has provided written submissions which were relied upon at the hearing of the above referred to minute of order and application in a case.
In considering the husband’s application for leave to amend his application for final orders the husband has made it clear that he does not seek to run his cost application concurrently with the balance of the orders sought pursuant to section 79 of the Family Law Act 1975(Cth). He would press the application after final property orders have been made. That position, it seems to me, is important to bear in mind when determining the application for leave.
The wife’s application to abort the hearing
Given that the wife was seeking an order that the trial be aborted, the consequence of which would be the trial would need to start afresh, probably before another judge, it was agreed between the parties that the wife should address first and I should determine that application before moving to consider the husband’s application.
The wife provided her written submission supporting the orders she sought on 1 December 2012. At the hearing on 15 February 2012 the wife relied upon her written submissions.
Those submissions commence with a statement of background history clearly provided to set the scene for the submissions which follow. In paragraph 5 of the submission the wife says “[Mr Byrd] did not inform [Ms Byrd] as to the opposition sought”. If that statement is meant to mean that on 22 September 2011 when the wife sought leave to have Mr K give evidence by electronic means, the husband did not articulate the reasons for his opposition to Mr K’s evidence being relied upon in the trial (which was to commence on 26 September 2011), I reject such a proposition. The transcript from 22 September shows that Mr Richardson SC for the husband very precisely set out why the husband would oppose that evidence.
At paragraph 41(b) of the submission the wife says of Mr Richardson’s submissions, made to the Court on 29 September 2011 following the delivery by me of the determination which conditionally admitted the report of Ms D, that he spoke of having to “sure up his case regarding both admissibility and costs in cross-examination of the wife and [Ms D] (i.e. he did not have all of the evidence)”. A fair reading of the transcript referred to at page 13 on 29 September 2011 does not support such a submission. The fair reading, in my view, (which accords with my understanding of what was said by Mr Richardson at the time) is that he was pointing out what section 117(2A) of the Act would require the Court to consider in the making, or otherwise, of any costs order. He was submitting that it would not be until the evidence was concluded that all of the material upon which the Courts discretion could be exercised would be available.
In paragraph 41.(b) it is contended that at the time Mr Richardson made his submissions, as recorded on pages 13 and 14 of the transcript of 29 September, the wife’s “Solicitor and Counsel had properly withdrawn”. The husband takes issue with the proposition that it was proper for the solicitor for the wife to withdraw from the proceeding. I am not in a position to say it was an appropriate step as I have not heard any argument on the allegation.
With respect to the wife’s counsel it is not easy to follow the written submission he has made. I am sure the fault is mine and not his. However, I am able to discern some of his submission as follows.
In paragraph 61 it is submitted that the husband acted inappropriately by filing the application contained in exhibit H6. It is conceded that the Rules enable a cost application to be made at any time (Rule 19.08). The application is said to be inappropriate because the husband should have foreseen that once made, the wife’s solicitor would be conflicted out of the case and would need to be represented during the balance of the case. The wife would consequently be required to engage a new attorney. The wife would incur considerable expense in having a new attorney consider all the work thus far undertaken in the case. The husband should also have foreseen that Ms D would need to be legally represented in the proceeding. These submissions are based on the assumption that in the giving of evidence by the wife and Ms D each may be cross-examined about matters which go only to the costs question as opposed to being relevant to the main proceeding of property division.
The wife alleges the husband has in this application for leave to amend made “serious unfounded allegations against a party’s legal representatives or third party expert witnesses”. Where such allegations appear on the transcript has not been specified by the wife.
The wife alleges that Ms D will not be able to give evidence freely without her own legal representative present. It is submitted that Ms D has not been put on notice of her alleged misconduct which might form part of a consideration under section 117(2A) of the Act. I note however that on 16 November 2011 the husband filed in the Court a document titled “[Byrd]. Points in Issue. Proposed Claim Against [Mr Y], [Ms D] and the Wife (“W”).” That document contains some 8 pages of particulars of the case to be made against each of those persons.
In paragraph 62 of the wife’s written submission she submits that allegations of misconduct aimed at legal practitioners and expert witnesses should not be made unless there is strong evidence available to support the claim. I doubt there would be argument against such a proposition. However the submission goes on further to suggest that even where there is such strong evidence available, the allegation should not be put before the Court during the currency of the proceedings in which they are engaged. It is submitted that the threat of action such as the seeking of indemnity costs orders should not be raised during the currency of a trial because it may “seriously impede the Court’s ability to administer justice” Such threats may deter practitioners and expert witnesses generally from participating in such cases..
In relation to the last mentioned submissions of the wife it seems to me that, almost without exception, if a legal practitioner or an expert witness engage in behaviour, which can quite clearly be seen as misconduct, then it ought be brought to the Courts attention as soon as possible as the misconduct may itself cause an injustice to arise to a party. Further, it seems to me, that any professional who takes work for reward exposes him/herself to risk of sanction if that job is done improperly and/or negligently. The law imposes some limitations on liability for negligent work, they be pressed as part of the husband’s case.
In litigation in this Court each legal practitioner who participates in that litigation, engaged by a client, understands how expensive that litigation becomes. Any improper action by such a legal practitioner which causes the other party or parties to suffer loss through the unnecessary payment of legal costs for their own representation, can expect to face an application for payment of costs of the injured party/parties.
In making the statements in the above two paragraphs it should not be inferred that I consider either Mr Y or Ms D have engaged in any inappropriate behaviour or acted negligently. I am yet to hear and determine those allegations should they be pressed. I am merely responding to general submissions made on behalf of the wife.
In relation to the submissions from paragraph 66 onwards of the wife’s written submission, it is important to note that the husband has not made an application for costs. He has made an application for leave to amend his orders sought in the trial to include the costs orders which he has outlined. He says he is content to run such cost applications at the conclusion of the trial. Rule 19.08, it seems would enable him to file his application within 28 days of a final order being made. The husband’s case is that as the application, if granted, might be expected to have serious financial consequences to any of the parties against whom such order is to be made, then it is incumbent upon the husband to give notice to all concerned.
The wife in her submission has not referred to the specific Rule relating to “Costs Orders Against Lawyers”. The rule is numbered 19.10 and needs to be considered in the mix with Rule 19.08 which the wife has addressed.
The wife raises argument which goes to whether the Court would or could make any cost order against the wife, Mr Y or Ms D on the evidence which has thus far been placed before the Court. Such a submission, with respect to the wife, is not for consideration at this time as the husband does not seek to prosecute a cost order, rather, he seeks leave to amend his application before the Court in a part heard trial so that it might be determined at the conclusion of the Courts determination of the property proceeding (i.e. after a final property order has been made). The husband says that this process does nothing more than to put all relevant parties on notice so that they can take whatever steps they consider prudent armed with that knowledge.
The wife raises the consequence to the finality of the proceeding before me if the husband was granted leave to file his amended application and then asked the Court to determine that cost application before moving on to determine the property application. The answer to such submission is that the husband does not seek to have his applications determined at this time even if leave was granted.
The submission made by the wife in paragraph 72 of her written submissions I cannot appreciate. I am unable to discern why the wife submits that the husband’s application for leave renders the “entire proceeding inoperable”. As best I can discern the reason advanced is that both Mr Y and Ms D would need to be represented in the further hearing. That must be a matter entirely for each to decide. Further, as I understand the submission, it is suggested the wife would have to cross-examine both Ms D and Mr Y during the hearing in relation to the question of costs and would herself be available to be cross-examined by those parties. This submission probably states an available conclusion if the husband was permitted to run the costs case concurrently with the balance of the property proceedings, however, that is not his application. In fact he has stated specifically he would not do that.
The wife submits the application by the husband is an abuse of process.
On 22 February 2012 the wife provided further written submissions in response to the oral submissions of the husband made 15 February 2012. That course of action (to provide further written submissions) was opposed by the husband. Given that current commitments meant I would be unable to deliver a judgement within a week or two I granted the wife’s application.
In the written submission of the wife delivered on 22 February 2012 she asserts that the principle flowing from the decision in Vestris v Cashman (1998) 72 SASR 449 has been misapplied by the husband in his oral submissions. The wife submits the principle from that case regarding the requirement for early notice to be given of any claim for costs against a third party relates to a third party who is acting behind an impecunious plaintiff. The wife submits that does not apply to the facts in this case. Further, having set out quotations from the judgment, the wife submitted in paragraph 8 that the authority is confined to cases where security for costs is sought.
The Submissions of Mr Y and Ms D.
The 2nd and 3rd respondents relied upon written submissions supplied to the Court on 30 November 2011. These submissions were provided at a time when it seems the 2nd and 3rd respondents had not received the “Response to an Application in a Case” which had been filed by the wife and which sought that the trial be aborted. Consequently the written submission does not address that Response. The 2nd and 3rd Respondents did, however, have an opportunity to address the wife’s position when the matter was listed for hearing on 15 February 2012.
When the matter resumed on 15 February 2012 Mr Aldridge for the second and third respondents informed the Court that the wife’s application “strictly speaking doesn’t affect me, because if successful, Mr Richardson’s (the husband) application to amend abides another day.” The submissions thereafter addressed the husband’s application.
The Husband’s Response to the Wife’s submission on aborting the trial
The husband in his submissions in reply, apart from attacking the real motivation of the wife in seeking to abort the trial, challenges the withdrawal by Mr Y from acting for the wife without his providing any explanation. He points out that no evidence has been advanced by either of the 2nd and 3rd respondents. It is to be recalled that although the wife did file an affidavit, that affidavit was struck out. The husband effectively poses the question “Why did the wife’s former solicitor withdraw from acting for her?” On the face of it there appears to be a common cause rather than a conflicted one, when both oppose the husband’s application to amend the orders he seeks in the trial which is part heard. Perhaps the husband and the Court might easily discern a potential conflict between Mr Y and the wife in the hearing of the proposed application the husband seeks to run at the conclusion of the hearing, however, in the absence of explanation at the time of hearing these applications, the husband says the situation is perplexing.
The husband argues that the wife’s submissions are really an excursion into the hypothetic. He submits no conflict between the wife and her solicitor has been demonstrated. Likewise it is submitted no conflict between the wife and Ms D has been stated. The question is posed by the husband “What would they have to cross-examine each other about?
Discussion
In my view the husband has done nothing to warrant the aborting of the trial. I accept that given the possible magnitude of any cost order made against the wife, Mr Y and/or Ms D, on the successful application of the husband (as foreshadowed) it is proper that they should all be given notice of the husband’s proposed application.
It might realistically be said that, based upon experience, each lawyer representing a party in a property dispute in the Court should have a clear understanding that cost applications are frequently made and may be granted. Each competent legal representative practicing in Family Law in this Court would be expected to bring such a circumstance to the attention of their client. The same cannot be said, in my view, about experts giving evidence in proceedings in the Court. I consider they would not necessarily have an understanding that their conduct in acting as an expert could be questioned and could give rise to an application that such expert pay costs lost or wasted by litigants in proceedings which arises as a direct result of any such conduct.
As a consequence of the above, I consider it is necessary for an applicant for costs against such an expert, to give notice of the intended application for costs as soon as possible, after the conduct, which it is alleged forms a platform for the cost application, has become apparent.
If it is appropriate to give notice of an intended cost application against an expert witness then it is also appropriate as part of such an exercise to give notice to all other parties/persons who may also be affected as part of the same application. Thus in this case it would be inappropriate for the husband to give notice of an intended cost application against Ms D without advising her that the same order would be also sought against the wife and the wife’s solicitor and that the order sought may be for any one of those persons to pay the costs order sought.
Assuming the above paragraph is correct; the question then arises as to how that notice should be given. Presumably it could have been given in correspondence or it could be given in the manner chosen by the husband. The distinction between the two approaches is most stark in the way in which the later approach causes the wife’s solicitor and Ms D to be named as parties. Does that distinction create a critical difference for Mr Y and Ms D?
The wife says the making of those two persons as parties to the proceedings, immediately means they are likely to be represented in the proceeding thus elongating the hearing. I do not accept that is necessarily so. True it is that as parties they have a right to be represented and may choose to do so as a matter of prudence, however, in relation to the cost application the husband wishes to pursue he has clearly stated it will not be moved upon until the conclusion of the trial. Further he has told the Court he would not seek to traverse the cost matter with Mr Y or Ms D within this trial. It must be acknowledged however, that some cross-examination of Ms D and the wife may be relevant to matters, clearly relevant in the trial currently being conducted and also to the cost application. Provided the cross-examination is relevant to the matters in issue in the trial it must reasonably be anticipated the cross-examination will be permitted even if it was also relevant to the husband’s cost application. I am reasonably confident however, that if both Mr Y and Ms D were represented it would not unduly lengthen the trial.
If the husband had chosen to give notice only through correspondence would that situation give rise to a different response from both Ms D and Mr Y? I consider it probably would not create a different response. If Mr Y says he is conflicted out of the case because a cost order is sought against him and the wife in the alternative then one asks rhetorically would he not be in the same conflict if he was given (along with the wife) written notice of the intended application? It seems to me probable that he would take the same view. In making those statements it should not be inferred that I have concluded that Mr Y is “conflicted out” from acting for the wife in the trial. That matter has not been argued before me.
If the written notice was given by the husband rather than making the application to the Court would that make a difference for Mr Y and Ms D requiring or desiring to be legally represented in the balance of the trial. It seems it ought not make an appreciable difference to them. Presumably they would wish to be represented in the trial where they are named parties to protect their interests. It is hard to see how they would not wish to protect their interests once they had been put on notice of the husband’s intended application notwithstanding that the application had not been made. In deed should the husband be unsuccessful in his application to amend his Application for Final Orders it is hard to see how that would change anything for Mr Y and Ms D because they are clearly on notice of what awaits them at the conclusion of the trial should the husband be a “man of his word”.
Before concluding this determination I need to record that Ms D advised the Court through her counsel that she did not wish to be an expert in the case any further. No application to have her discharged as an expert witness in the case was made, should such an application be required in the circumstances.
Conclusion
The conclusion I reach is as follows.
The husband is under an obligation to give notice of an intended application as soon as he is in a position to formulate it. He has done so in this case and provided particulars of the basis of his application.
Once the husband determines he may bring an application for costs at the conclusion of the trial he then has to elect how to give notice of that intention. Failure to give notice at an early time may prove fatal to his application because the intended respondents to the application have been permitted to proceed on the basis that no cost application would be brought following a particular event in the proceedings and as such, consequences to the husband’s application may be reasonably predicted.
Whether the husband gives notice via correspondence or in the manner in which he has will depend on the particular circumstances of the case. His action in the circumstances of the case must be seen as reasonable rather than extreme.
In the circumstances of this case the Court has spent a number of days dealing with the admissibility of evidence the wife sought to rely upon as expert evidence from Ms D. Each of the husband and wife were represented by senior counsel. The costs incurred by each party, of that exercise must reasonably be anticipated to be significant. The Rules provide (Rule 19.08) that a costs application may be made by a party against another person at any stage during a case. Alternatively an application may be filed within 28 days of final order being made. In my view the action of the husband in applying to amend his Application for Final Orders to include the costs order foreshadowed was not an unreasonable action in the circumstances of this case.
Clearly a significant amount of time and cost has been invested in the hearing of the trial thus far. To abandon the hearing and start afresh will see that time and cost wasted. The parties can expect significant delay in being able to commence a trial again before another judge in this registry of the Court. A significant injustice would flow to the husband and wife if that course of action were taken. The circumstances of the case do not, on balance, warrant that action being taken.
Accordingly I will dismiss the wife’s application contained in her response filed in a Response to an Application in a Case on 30 November 2011.
Application for leave to amend
All of the respondents opposed the husband being granted leave to amend his Application for Final Orders in the manner sought. The second and third respondents relied upon written submissions provided to the Court on 30 November 2011 together with oral submissions made by their counsel.
The respondents did not concede that section 117 of the Act provided a source of power to make an order for costs against a witness. Further it is submitted that an expert witness’ evidence is absolutely privileged. The Court’s attention is drawn to Rule 15.61(2). Even if the power to make a cost order against an expert exists it could only be made in the most extreme case.
As against those submissions the husband says section 117 of the Act does not confine itself to orders for costs against parties to a marriage or parties to a proceeding. Further Rule 15.64(d)(iv) specifically provides for the making of a costs order and does not exclude by its terms such an order being made against the expert.
The respondents’ submission is that the husband’s application should be dismissed “out of hand”.
I repeat, at the risk of being repetitive, that the application before the Court is for leave to amend an application, not the prosecution of a cost order. The authorities relied upon by the respondents are not of great assistance in determining that the husband’s application for costs, should he be permitted to bring it, simply could not succeed. In my view the husband is not prevented from proceeding with a cost application against Ms D and/or Mr Y as a matter of law. I would not therefore dismiss his application to amend on that basis.
The balance of the written submissions on behalf of the second and third respondents seek to argue that the case against them is weak and unlikely to succeed. It is not argued that it could not succeed.
Further it has to be remembered that the evidence to support the husband’s application, should it be allowed, has not been placed before the Court. Until that occurred no determination of the application could be made.
I conclude that the second and third respondents’ application to have the husband’s application dismissed should not succeed.
Should the Husband’s Application for costs be heard before the trial continues further?
The wife argued that if the husband is to bring an application for costs against the wife and her solicitor it should be determined before the trial continues. The reason appears to be that once resolved the wife could then continue to instruct Mr Y. Further it is put that it would be untenable for Ms D to continue to give evidence in the case when she is under the threat of an order for costs being made against her.
As against those arguments it is put by the husband that this application should be determined at the conclusion of the case like most other costs applications which require detailed consideration. Further, in relation to the wife there may be other bases upon which additional costs are sought once the trial is concluded and orders made. The husband has further submitted that the Court has not excluded Mr Y from acting for the wife.
In fairness, another matter should be considered and that is that matters arising from the evidence in the trial and from the orders made by the Court may have a considerable bearing on whether any cost order should be made against any of the respondents.
If the cost application were to be determined at this time then evidence from all affected persons would be taken. There may be something which arises in that hearing which itself causes the trial to be aborted. It may be that credit findings would be required in relation to one or more of the witnesses. Such credit findings may make it unjust for the trial to proceed with the same judicial officer.
On balance I conclude that the hearing of the husband’s costs application against the respondents should abide the conclusion of the trial and the making of final property orders.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 5 April 2012.
Associate:
Date: 5 April 2012
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