Coat v Aves (No 2) (Pseudonyms)

[2024] NSWDC 87

District Court

New South Wales

Medium Neutral Citation:

Coat v Aves (No 2) (Pseudonyms) [2024] NSWDC 87

Hearing dates:

7, 15 and 22 March 2024

Date of orders:

22 March 2024

Decision date:

22 March 2024

Jurisdiction:

Civil

Before:

Acting Judge Levy SC

Decision:

See paragraph [18] for orders

Catchwords:

COSTS – (1) non-publication order cannot be lifted as this Court lacks power to do so: s 121 of the Family Law Act 1975 (Cwth) – (2) indemnity costs – grant of application by successful defendant for indemnity costs – (3) gross sum costs pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) – assessment deferred pending quantification – (4) application for third party costs order against plaintiff’s former legal advisors deferred pending service of relevant documents

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98, s 99

Family Law Act 1975 (Cwth), s 121

Uniform Civil Procedure Rules 2005 (NSW), r 47.12

Cases Cited:

Coat v Aves (Pseudonyms) [2023] NSWDC 560

Category:

Consequential orders

Parties:

Ms Coat (a pseudonym) (Plaintiff)
Mr Aves (a pseudonym) (Defendant)

Representation:

Counsel:
No appearance by plaintiff (First costs respondent)
Mr RJM Foord (Defendant costs applicant)
Ms S Causevic, solicitor (Second costs respondent)

Solicitors:
No appearance for plaintiff
Alidenes & Co (Defendant costs applicant)
Gilchrist Connell (Second costs respondent)

File Number(s):

2021/327337

Publication restriction:

Non-publication order applies: Coat v Aves (Pseudonyms) [2023] NSWDC 560, at [45]-[47]

JUDGMENT

Applications by defendant for consequential orders post-judgment

1. This is an application by the defendant for four consequential orders post-judgment following an earlier dispositive decision of the Court on 15 December 2023 that determined the principal dispute between the parties in favour of the defendant. At that time the parties were de-identified: Coat v Aves (Pseudonyms) [2023] NSWDC 560. These reasons assume a familiarity with the effect of that decision.

Orders sought by defendant

2. The defendant now seeks orders that:

1. The non-publication order made on 18 September 2014 be varied to enable the defendant to inform relevant persons, including witnesses, that he has been vindicated by the dispositive findings and orders made on 15 December 2023;

2. Pursuant to s 98(1)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff pay the defendant’s costs of the proceedings on an indemnity basis;

3. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff’s liability for the defendant’s costs be paid pursuant to a specified gross sum to be assessed by the court;

4. Pursuant to s 98(1)(b) and s 99 of the Civil Procedure Act2005 (NSW), for the defendant’s assessed costs be paid by the plaintiff’s former legal advisors.

Consideration and determination of the applications

3. The consideration of those applications now follows.

(1) Request for variation of non-publication order

4. The litigation pseudonyms of Coat and Aves were assigned consequent upon a non-publication order made at the commencement of the hearing on 18 September 2023. That order was made to avoid breaches of s 121 of the Family Law Act 1975 (Cwth).

5. Against a background of the blackmailing effect of certain pre-trial communications disseminated by the plaintiff’s mother (the defendant’s former de facto partner), whose evidence was discredited by findings made in the principal judgment, the defendant now applies for a variation of the non-publication order made on 18 September 2023. The defendant seeks that order to enable him to inform certain persons, witnesses and relevant entities, of the vindication he has obtained from the findings that were made in his favour as identified in the principal judgment.

6. The difficulty the defendant faces in that quest is that the restrictive terms of s 121 of the Family Law Act 1975 provide as follows:

“Restriction on publication of court proceedings

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year. …”

7. Some evidence in the family law proceedings as between the defendant and the plaintiff’s mother was tendered in these proceedings by leave of the Family Court. However, that leave did not extend to publication of the identification of parties to that litigation. Those circumstances necessarily present an insurmountable barrier to this element of the defendant’s application.

8. That said, there is no impediment to the defendant directing the attention of the witnesses he called in his case to the terms of the principal judgment as published on Caselaw. Similarly, there is no impediment to the defendant informing those persons he has been vindicated, including by an acceptance of their evidence. For a wider distribution of the details that include identification of the parties, a facilitative order of the Family Court would be required as this Court lacks the power to make such an order.

(2) Indemnity costs

9. The plaintiff declined acceptance of a series of 5 rules-compliant valid offers of compromise respectively served by the defendant served on 25 January 2022, 29 April 2022, 7 August 2022, 30 August 2023 and 19 September 2023: UCPR r 47.12.

10. Each of those offers invited the plaintiff to accept a verdict for the defendant with each party to bear their own costs.

11. In contrast, the plaintiff’s first offer of settlement, dated 11 August 2023, invited a settlement of $380,000 plus costs. The plaintiff’s second offer of settlement, dated 25 September 2023, invited a settlement of $190,000 plus costs. The defendant declined each of those offers.

12. The outcome obtained by the defendant was more advantageous and more favourable to him in that he has established an entitlement to an order for the payment of his costs for what is expected to be a sizeable sum.

13. Whilst an acceptance of the defendant’s offers required the plaintiff to capitulate her position in the litigation on all issues calling for decision, the credit-based nature of the dispute necessarily mandated that only one party could succeed. Partial success was not an available option in this case.

14. In those circumstances, it is only fair and just that the plaintiff be required to pay the defendant’s costs from inception of the litigation on the ordinary basis to 25 January 2022, and on an indemnity basis from 26 January 2022.

(3) Specified gross sum costs

15. The defendant’s application for a specified gross sum costs order in lieu of what would otherwise involve a lengthy and expensive costs assessment process seems to be a sensible course in this case. Given that a series of post-judgment procedural directions remain outstanding, including for the preparation of a Bill of Costs, and the consideration of an appropriate discount as envisaged by the defendant’s submissions, the further consideration of this element of the defendant’s application must be deferred until compliance with those directions has occurred.

(4) Application for a third party costs order

16. The defendant seeks an order that the plaintiff’s former solicitor pay the defendant’s assessed costs: s 98 and s 99 of the Civil Procedure Act 2005 (NSW). Those solicitors filed a Notice of Ceasing to Act for the plaintiff on 14 March 2024. This element of the defendant’s application has therefore required that the plaintiff’s former solicitor be separately represented as a costs respondent. This has only occurred today.

17. Complex questions of legal professional privilege and related matters necessarily arise for determination. In those circumstances this element of the defendant’s application must also be deferred until the plaintiff’s former solicitors have been formally served with the defendant’s Bill of Costs in assessable form, along with particulars of the basis of the claim made against them.

Orders

18. I make the following orders:

1. Pursuant to s 98(1)(c) of the Civil Procedure Act 2005 (NSW) the plaintiff must pay the defendant's costs of the proceedings on the ordinary basis until 25 January 2022, and on an indemnity basis from 26 January 2022;

2. The defendant's application for a gross sum costs order and a third party costs order against the plaintiff’s former solicitors is stood over to a hearing at 10.00am on Friday 17 May 2024 or such other earlier date that might be ordered on the application of the parties;

3. Liberty for the parties to apply for further, varied, or other orders, on short notice if required;

4. When a transcript of today's proceedings becomes available it is to be taken out and circulated to all interested parties.

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Decision last updated: 22 March 2024