Charters & Webb (No 2)
[2023] FedCFamC1F 7
Federal Circuit and Family Court of Australia
(DIVISION 1)
Charters & Webb (No 2) [2023] FedCFamC1F 7
File number(s): SYC 7278 of 2017 Judgment of: ALTOBELLI J Date of judgment: 18 January 2023 Catchwords: FAMILY LAW – COSTS – Where the applicant seeks costs following completion of a final hearing in which a finding was made in his favour – Application for indemnity costs – Where the respondent was wholly unsuccessful – Where the applicant made multiple offers of settlement – Costs ordered on an indemnity basis in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13(3)(b) and 12.17
Cases cited: Charters & Webb [2022] FedCFamC1F 527
Ebner v Official Trustee in [Bankruptcy] (2000) 205 CLR 337; [2000] HCA 63
Idoport Pty Limited v National Australia Bank & Anor [2007] NSWSC 23
Kazimierczak and Koch (1987) FLC 91-849; [1987] FamCA 19
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Lenova & Lenova (Costs) (2011) FLC 93-467; [2011] FamCAFC 141
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28
Division: Division 1 First Instance Number of paragraphs: 36 Date of last submission/s: 11 October 2022 Date of hearing: Determined on the papers Place: Sydney Solicitor for the Applicant: Mr Mewett of Acorn Lawyers The Respondent: Litigant in person ORDERS
SYC 7278 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WEBB
Applicant
AND: MS CHARTERS
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
18 January 2023
THE COURT ORDERS THAT:
1.Within 42 days of the date of these orders, the Respondent must pay the costs of the Applicant fixed in the sum of $18,800.
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 Charters & Webb has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
introduction
By way of an Application in a Proceeding filed 22 August 2022, Mr Webb (“the applicant”), seeks an order for costs against Ms Charters (“the respondent”), following the conclusion of long running parenting proceedings on 25 July 2022. The precise orders sought are as follows:
1.That the Applicant Grandmother in the substantive parenting proceedings pay the Respondent Father’s legal costs on an indemnity basis with respect to her Application filed 7 September 2017.
2.In the alternative to Order 1, the Applicant Grandmother in the substantive parenting proceedings pay the costs of the Respondent Father on a party/party basis as agreed, or in default of agreement, in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
3.That the Applicant Grandmother pay the costs within 28 days of the date of these orders
4.The Applicant and Respondent file and serve written submissions not exceeding 500 words within 21 days of the Court hearing this Application in Chambers.
5.Such further and other Order as this Honourable Court deems fit.
(As per the original)
In her Response to an Application in a Proceeding filed on 5 October 2022, the respondent seeks that the Court dismiss this application.
The application for costs was filed within time pursuant to r 12.13(3)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). This Court is not precluded from determining this application under the doctrine of functus officio; see Kazimierczak and Koch (1987) FLC 91-849 at 76,418–76,419.
background
On 22 July 2022, the substantive proceedings concerning an application by the maternal grandmother (the respondent in this application) to spend time with her granddaughter, the applicant’s oldest child, was dismissed. Extensive reasons for judgment were provided following an eight day hearing; Charters & Webb [2022] FedCFamC1F 527 (“reasons for judgment”). To the Court’s knowledge, no appeal was filed in relation to the orders made on 22 July 2022. There is some suggestion in material filed by the respondent that an appeal may have been filed but was ultimately withdrawn. Where it is relevant, various passages from the reasons for judgment will be referred to or reproduced.
evidence
In support of his case, the applicant relied on the following material:
(a)Application in a Proceeding filed 22 August 2022;
(b)His affidavit filed 22 August 2022;
(c)Financial statement filed 21 September 2022;
(d)Acorn Lawyers Summary Report & Tax Invoices Issued between 31 October 2017 and 29 June 2022;
(e)Schedule 3 – Estimates of costs;
(f)Reasons for judgment delivered on 25 July 2022, Charters & Webb [2022] FedCFamC1F 527;
(g)Written submissions served on 21 September 2022, filed on 11 October 2022; and
(h)Written submissions in reply filed 11 October 2022.
In support of her case, the respondent relied on the following material:
(a)Response to Application in a Proceeding filed 5 October 2022;
(b)Application in a Case filed 12 January 2018;
(c)Her affidavit filed 20 February 2018;
(d)Her affidavit filed 26 September 2018;
(e)Financial Statement filed 26 September 2018;
(f)Her affidavit filed 5 October 2022;
(g)Affidavit of Mr F filed 5 October 2022;
(h)Affidavit of Ms O filed 5 October 2022;
(i)Financial Statement filed 5 October 2022; and
(j)Written submissions filed 5 October 2022.
THE APPLICABLE LAW
The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748.
An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that:
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) and the applicable Rules of Court, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) sets out the matters that the Court is to have regard to:
(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.
Although the Court is required to consider each of the abovementioned factors, it is plain that their relevance to a particular matter will depend upon the circumstances of that case and they should be considered in that light. That is, no one factor prevails over another and it is a question of the weight that is to be afforded to each of the relevant factors depending on the circumstances of the matter (Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24]). There is also “nothing to prevent any factor being the sole foundation for an order for costs” (PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 at [41]).
Whilst the applicant in a costs application must establish the circumstances justifying the making of a costs order, the Court is not limited to making such an order only in what has been described as a “clear case” (Penfold v Penfold (1980) 144 CLR 311).
It is well settled that when costs are ordered by this Court, such costs are payable on a party-party basis. It has been held that the Court should not lightly depart from the ordinary rule: Kohan and Kohan (1993) FLC 92-340.
The provision relating to the calculation of costs is governed by r 12.17(1) of the Rules which is as follows:
12.17 Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a) of a specific amount; or
(b)as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c) to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
The rule further provides that:
(3) In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceeding, or in complying with pre‑action procedures; and
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
In relation to an award of indemnity costs, the Full Court decision of Phillips & Hansford (2020) FLC 93-941, helpfully summarises the position as follows:
35.Indemnity cost orders are made only in exceptional cases (Kohan and Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No. 2) (2010) FLC 93-435).
36.Whilst the categories of cases in which indemnity cost orders may be awarded are not closed, it is accepted that such costs may be ordered where a case was pursued with “wilful disregard of known facts or clearly established law” and where there has been “an imprudent refusal of an offer to compromise” (Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233).
37.In relation to the first category, it has been said that indemnity costs may be awarded where “the applicant, properly advised, should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401) and where “a party persists in what should on proper consideration be seen to be a hopeless case” (J Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch & Anor [1993] FCA 70 per French J at [5]).
In relation to the Court exercising its discretion to make a costs order in a specific amount pursuant to r 12.17(a) of the Rules, the judgment of Idoport Pty Limited v National Australia Bank & Anor [2007] NSWSC 23 outlines the applicable principles at [9]:
[9]For present purposes it seems convenient to commence with a recitation of the principles which inform the exercise of the discretion:
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J p 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation” (All ER p 265)];
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at [22]; [following (Wentworth v Wentworth (CA, 21 February 1996 unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788 Sony Entertainment v Smith (2005) 215 ALR 788 [2005] FCA 228; BC200500963 at [199]; at 200500963 at [199];
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at [22];
v.the gross sum “can only be fixed broadly having regard to the information before the Court”: Beach Petroleum at 124;
[In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that … is what the rule contemplates".]
vi.nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120”;
vii.In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, put the matter as follows, at [16]:
On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court: Leary v Leary at [265].
preliminary issue
Before considering, and adjudicating on, the submissions made by the parties, the Court needs to address an issue raised by the respondent in her submissions and evidence. On the first page of the respondent’s written submissions filed 5 October 2022, the respondent makes the following statement:
If the court hears the matter I will be forced to make application and submissions regarding
…
3) That Justice Altobelli recuse himself from hearing this matter.
(Per the original)
On page 2 of the respondent’s written submissions, under the heading “Irregularities” at paragraph 9, the applicant asserts “[n]ew information suggests Justice Altobelli has prior connections to the father.” There is a footnote to this statement that refers to the affidavit of Mr F filed 4 October 2022 in support of the costs application. Mr F is the respondent’s husband. At paragraph 62 of his affidavit, Mr F deposes as follows:
It has also been suggested to me by [Ms T], someone who knows Justice Altobelli, that Justice Altobelli's Wife and [Mr Webb's religious leader, Mr U] and his wife and family grew up in the same social circles together and attended church together for many years.
In essence, and doing the best the Court can to understand the respondent’s contention, the respondent seems to allege that she was told by her husband that Ms T had said to him that my wife allegedly knows the religious leader of the Church that the applicant father attends.
Even if it were the case that the applicant was making an application for recusal, rather than threatening to make an application for recusal if the Court proceeds to deal with this application, the evidence she leads would not justify making an order for recusal. Firstly, the evidence would need to be probative rather than vague and speculative. Secondly, the evidence would need to be accepted. Lastly, even if the evidence were accepted it is unlikely that recusal would follow as a matter of law: see Ebner v Official Trustee in [Bankruptcy] (2000) 205 CLR 337 at 345.
The Court simply notes paragraph 9 of the applicant’s outline of submissions in response filed on 11 October 2022:
The Respondent Grandmother threatens further legal action in her written submissions stating "If the court hears the matter, I will be forced to make application and submissions regarding 1) jurisdiction ... "This is not an appropriate forum for the Grandmother to threaten the Court with further legal action, and can be particularised as Contempt in the face of the Court as a flagrant challenge to the authority of the Court.
(Citations omitted)
submissions made on behalf of the applicant
In his application for costs, the applicant relies upon ss (a), (c), (e) and (f) of s 117(2A) of the Act.
The applicant submits that his financial circumstances are modest and yet he has incurred total costs of $80,462.27, per paragraph 25 of his affidavit filed 22 August 2022, in relation to the proceedings in which he was entirely successful, and the respondent was entirely unsuccessful.
The applicant submits that the Court was highly critical of the respondent’s conduct during the proceedings. He specifically refers to the following paragraphs in the reasons for judgment, each of which are reproduced below.
46As should become apparent, the answer to all of those questions focus primarily on the grandmother and [X], and not on the father and the mother. With the greatest of respect to the grandmother, too much of this hearing was an indulgence to her so that her case might be fully presented to the Court, even though most of the evidence that she led and her cross examination of the parents was quite irrelevant. Indeed, her cross-examination of the mother revealed more important information about the grandmother, than about the mother herself. Regrettably, the Court’s strong impression at various times during the hearing, and most obviously at the conclusion of the hearing, was that the grandmother’s case was about herself and seeking some form of vindication for what she considered to be scurrilous allegations made about her in the substantive proceedings between the mother and father in 2016.
…
81At paragraphs 20–22 of his affidavit, [Mr C] makes a number of serious allegations against the grandmother, in relation to her involvement in the mother’s litigation against the father. At paragraph 20 he deposes to observing the grandmother often sending emails from the mother’s email address. At paragraph 21 he deposes that the grandmother had heavy involvement in the drafting of emails from the mother’s email address. At paragraph 22 he deposes to being present for a discussion about the father’s replies to the emails. He deposes that the grandmother withheld information from the mother and [Mr C], and that it was not until after the mother and the father were able to communicate, that they became aware of this.
82The mother’s evidence is consistent with the evidence of [Mr C] in relation to the above matters. The mother gave evidence that she considered herself “extremely impressionable” by the grandmother. The Court observes in this regard that this does not necessarily mean that the mother was not also influenced by others at points of her life including, for example, by the father when they were together, and by other people who counselled and supported her during her life. The totality of the mother’s evidence, however, does suggest that the grandmother had an element of control over her life.
83The grandmother was herself cross-examined about these allegations and for all practical purposes conceded that she sent emails from the mother’s address and that she was heavily involved in the preparation of the emails, but as typist rather than author. The Court doubts very much that the grandmother was merely a typist. It is clear from the totality of the evidence that she dominated the mother.
…
98[Mr C’s] evidence is significant. It suggests that the grandmother has strong, and sometimes extreme, views about issues. It raises concerns about the grandmother’s boundaries. It raises concerns about the grandmother’s involvement in the litigation between the parents and is consistent with the mother’s case in relation to the grandmother’s heavy involvement in her case with the father. It indicates an insensitivity and lack of insight into the needs both of the mother and [X]. The conversation in the car suggests lack of insight. The mother makes a very serious allegation about the grandmother’s manipulativeness. The evidence of [Mr C] corroborates this.
…
100This hearing should have taken half the length of time that it took. It took much longer because of the way that the grandmother conducted her case and gave her evidence.
…
119The grandmother’s case outline, and her responses in cross-examination in relation to the same, is troubling. It is not surprising, from the Court’s perspective, that during the course of the hearing the mother’s proposal changed from being one where she contemplated some time between [X] and her grandmother to her final proposal, consistent with that of the father, that there be no time at all. It must have been very hurtful for the mother to read the grandmother’s assertions about her, and then to hear the grandmother’s oral evidence about the same. The mother was understandably concerned about the risk of transmission of the grandmother’s views about her to [X]. Of particular concern to the Court is the lack of relevance between the matters raised by the grandmother, and the issue before the Court. The only issue before the Court was whether, and if so under what circumstances, [X] should spend time with the grandmother. The grandmother’s “safety net” argument was never a well founded one, having regard to what will be seen below as the grandmother’s unrealistic, ill considered, and constantly changing, proposals for [X] to spend time with her.
120The grandmother cross-examined the mother. There is a significant preliminary matter which contextualises this cross-examination. At several points during the hearing the Court raised with the parties, and the grandmother in particular, the question of whether the damage that would be caused to family relationships, and in particular to the relationship between the grandmother and the mother, was justified by what was sought to be achieved through the litigation. Moreover, the Court raised with the grandmother the relevance of any concerns that she might have about the mother’s parenting capacity given the issues in this case. The grandmother insisted that it was relevant to her case.
…
122At no stage was it a part of the case against the grandmother that she was not allowed to spend time with [X] because of what happened to the mother as a child.
…
126Certain attitudes of the grandmother become apparent. She was very critical and condescending of the mother. There was a clear air of superiority. Little or no compassion was communicated either in writing, or in the grandmother’s own cross examination of the mother, and in the grandmother’s presentation throughout the hearing. It was a critical, belittling attitude. It was insensitive. It revealed the grandmother’s own attitude of self-entitlement and an inability to understand how her entire case made both the father’s and the mother’s parenting of X more difficult because of the emotional, financial, and practical investment in this litigation. The grandmother, who the Court found to be intelligent and articulate, lacked the emotional intelligence to understand how this litigation, and her own actions, could indirectly adversely impact on [X].
127The Court was left with a strong impression that, in reality, the grandmother’s litigation was as much about herself as it was about [X]. The Court acknowledges that this is a serious and harsh observation to make about the grandmother, but it is soundly based on her own evidence. Both in the grandmother’s own cross-examination, and in the grandmother’s cross-examination of the mother, her answers in one context, and questions in the other, indicated a defensive, self-justificatory agenda that was devoid of any relevance to the issue of the grandmother’s time with [X].
The applicant submits that the respondent was entirely unsuccessful in the proceedings and that when the totality of her evidence is considered, her application in the substantive proceedings had no merit.
The applicant also relies on offers of settlement made to the respondent. The evidence in this regard is at paragraphs 22 to 24 of the applicant’s affidavit filed 22 August 2022, including multiple letters to the respondent. The measured, reasonable tone of the proposals made are evident from this correspondence. The respondent was warned on several occasions that an application for indemnity costs would be made.
The applicant submits that costs should be ordered on an indemnity basis. At paragraph 16 of his written submissions dated 21 September 2022, the applicant states:
16.The Court has previously given examples where indemnity costs might properly be awarded (Marriage of Munday and Bowman (1997) 22 Fam LR 321) where:
(a)“an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397).
(b)“Evidence of particular misconduct causing loss of time to the court and to other parties” (Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Fed C of A, French J, 3 May 1991, unreported)).
(c)“The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.”
(d) “An imprudent refusal of an offer to compromise.”
submissions made on behalf of the respondent
Doing the best the Court can, the respondent’s submissions, where relevant, emphasise that her financial circumstances are parlous. Indeed, the evidence she advances would support that proposition. However, the law is clear, "impecuniosity is not a bar to making an order for costs if the court otherwise considers it appropriate”; Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].
The respondent makes no substantive submission in response to the other matters raised by the applicant as warranting an order for costs. Again, doing the best the Court can to discern what the respondent perhaps meant to say, she seems to be suggesting that as a self-represented litigant she did the best she could and this should not be held against her.
Discussion
An order for costs is compensatory, not punitive.
At [14] in the reasons for judgment, the Court found the respondent to be a highly intelligent and articulate woman who was more than capable of holding her own in this litigation. At various points in the reasons, the Court expressed concern about the lack of clarity and changing nature of the respondent’s proposal to spend time with her granddaughter. But one example of the Court’s expressed concerns about the lack of relevance of so much of the respondent’s cross-examination of the witnesses in the case is evident at [46] of the reasons. Another significant paragraphs is [99], which is reproduced below:
99Some preliminary impressions and findings about the grandmother’s evidence are apposite. The Court, who had more than ample time to form these impressions, makes these comments reluctantly, regretfully and carefully. The manner in which a witness gives evidence, and a party presents their case, often provides insight into their character as well as credibility. Character pervades and underpins many of the primary and additional considerations that assist in understanding the concept of the best interests of the child. In her oral evidence, the grandmother was pervasively non-responsive, effusively expansive, frequently defensive, and exuded a sense of entitlement and self-righteousness. She rarely made any meaningful concessions. This detracted from the credibility of the grandmother. Thus, as will be seen, where her evidence contradicts with the evidence of another witness such as [Mr C] or the mother, unless there are independent documents supporting her evidence, the Court prefers the evidence of the other witnesses over that of the grandmother.
A key feature of the respondent’s cross-examination of her daughter, the mother in the proceedings, was the lack of relevance of the questions asked.
At [130], the Court commented on the respondent’s “defensive, self-focused attitude in the case…”.
Perhaps the most significant finding by the Court was at [100], the effect being that the respondent’s conduct of the case caused the case to take twice as long as it otherwise should have.
conclusion
The applicant’s case is established. The respondent was entirely unsuccessful in the proceedings. The manner in which she conducted the case caused it to take twice as long as it should have. The applicant made several offers of settlement that were not accepted but which should have been. The respondent’s financial impecuniosity is not a bar to the making of a costs order against her. The applicant’s financial circumstances are not such as to preclude him receiving the benefit of a costs order in his favour. The conduct of the respondent in particular warrants an indemnity costs order.
The applicant’s total costs amounted to $80,462.27. Having regard to the Court’s finding that the respondent’s conduct of the hearing caused it to take twice as long as it should have been, that is eight days instead of four days, the costs payable by her will be limited to the cost of the applicant for four days of hearing. The evidence before the court about the applicant’s costs made it very difficult to ascertain with precision what those daily costs might be. Doing the best the Court can, this seems to amount to $3,500 per day for counsel, and $1,200 per day for his solicitor; totalling $18,800 for four days. The court is satisfied that the fees charged are fair, reasonable and proportionate for the purposes of r 12.08 of the Rules. Thus, pursuant to r 12.17(a) of the Rules, the court orders this amount payable. The respondent will be ordered to pay that amount within 42 days, or as otherwise agreed between the parties.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 18 January 2023
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