DEBONO & DEBONO

[2013] FamCA 46

FAMILY COURT OF AUSTRALIA

DEBONO & DEBONO [2013] FamCA 46

FAMILY LAW – COSTS - Wife’s application for costs arising out defended hearing – Costs sought on a solicitor and client basis – Assessment of what is just – Costs order based on a party and party basis – Stay of payment for six months – Thereafter interest payable in default

Family Law Act 1975 (Cth) s 75(2)(o) – s 117(1), (2), (2A)

APPLICANT: Mr Debono

RESPONDENT: Ms Debono

FILE NUMBER: MLC 7072 of 2011

DATE DELIVERED: 8 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 4 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Geddes QC

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Mr Baker

SOLICITOR FOR THE RESPONDENT: Plaza Legal

IT IS ORDERED:

1. THAT the husband pay or cause to be paid to the solicitors for the wife, costs in a sum of $145,000.

2. THAT the payment be stayed for six (6) months, free of interest, and thereafter interest be paid, quarterly in arrears, at the rate prescribed from time to time within the Family Law Rules 2004 and on such part of the sum of $145,000 as remains outstanding from time to time.

3. THAT any and all other orders for costs reserved in this matter be discharged.

4. THAT there be no order for costs of and incidental to the hearing before me on 4 February 2013, or in preparation therefore.

5. THAT all outstanding applications be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Debono & Debono 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 MELBOURNE

FILE NUMBER: MLC of

Mr Debono

Applicant

And

Ms Debono

Respondent

REASONS FOR JUDGMENT

1. On 21 December 2012 I delivered Reasons for Judgment and pronounced final Orders for a final division of property between these parties.  The hearing then also involved a second and third respondent who are not part of this present application.

2. I had reserved all questions of costs for further hearing and determination and directed that the parties file written submissions addressing these issues, which they have done and which I have read and evaluated.

3. The matter was listed before me on Monday 4 February 2013 for oral submissions in support of the filed documents and, on that day, I reserved my Reasons for Judgment on costs.

4. There were various preliminary matters which were agreed upon, or which I was asked to accept, as the basis of this costs hearing and they were:

   (a)that, notwithstanding the basis upon which the wife’s written submissions were prepared and filed, no Order was now sought by her for costs to be assessed on an indemnity basis.  The wife’s costs are sought on a solicitor and client basis, or otherwise, on a party / party basis.  What Mr Geddes submitted was that his client sought to be reimbursed for all costs incurred on the basis of the executed Costs Agreement which was now in evidence before the Court.  He asked that wherever a reference was made to “the indemnity costs” in the written submissions that be read as “solicitor and client costs”;

   (b)Mr Geddes formally appeared for both the wife and the third respondent in the s 79 defended property proceedings and he announced his appearance today only for the wife.  He advised the Court that the third respondent was not seeking an Order for costs, was not separately represented, but was aware that the proceedings were listed for hearing this day;

   (c)Mr Baker confirmed that he was briefed by the husband’s solicitors on the record.  Some concern had arisen with the Court when he initially announced his appearance on the basis of a direct briefing by the husband.  I allowed him time to make contact with the solicitors on the record and, on the instructions of the husband, they have engaged him to appear and make oral submissions this day;  and

   (d)there are no costs Orders sought by the husband this day and he has instructed Counsel only on the basis of opposing any costs orders sought by the wife.

ASSESSMENT OF COSTS

1. In the event that I determine that an Order for costs, of whatever amount and on whatever basis, should be made in favour of the wife, and with the husband paying such costs, I have been asked to fix the actual quantum of the costs to be paid.  This was a matter upon which both Counsel, on instructions from their clients, addressed the Court.

2. Specifically each of the clients adopted the position that they do not want to be involved in the costs of and lengthy time associated with drawing and engrossing an itemised bill of costs, the perusal and examination thereof and then submissions and appearances before a Registrar of this Court.  Each accepted that would be a lengthy, costly and substantially delayed exercise.  Thus both of them have asked the Court, through their Counsel, for any costs Order that may be made to be quantified on the basis of the evidence and financial information now before me, the estimate of legal costs and disbursements incurred and for me to determine a just sum.

3. On the basis of that consent position I advised both Counsel, and their clients seated behind them in Court that I would approach my task on that basis.

WIFE’S DOCUMENTS

1. The wife’s written cost submissions, of seventeen pages, were filed on 18 January 2013 and served upon the husband’s solicitors.  The orders sought by her are contained in that document and there is no separately filed application for costs.

2. The wife asserted that the total legal costs and disbursements incurred by her, and for which she is responsible to pay, or has paid, to her lawyers is $326,750. 

3. Exhibit “W1” is the Costs Agreement executed by the wife on 21 July 2011 and upon which she retained and agreed to pay her present lawyers to act on her behalf in these proceedings.  It is a somewhat concise and limited document.

4. Exhibit “W2” is a letter of offer from the wife’s solicitors to settle the proceedings, dated 26 November 2012, which date was after four days of hearing but before the resumption of this case, on a part-heard basis, in November 2012.  There were six subsequent days of Court hearing that occurred after the service of the letter of offer.

5. Exhibit “W3” is a single page financial statement, prepared during the course of this hearing, in which the lawyers for the wife calculated what they said was the financial impact of the offer of settlement when read in conjunction with my Court Orders, subject to the variation of the credit facility to reflect that liability as at 26 November 2012.

6. It was submitted that the husband would have received a division of property of 45.39% had he accepted that offer of settlement, compared to that which he received pursuant to my Court Orders which was 45% of the property of the parties.

HUSBAND’S DOCUMENTS

1. The husband’s recently engaged Counsel prepared a three page written submission which, by leave, he was permitted to file on the morning of this costs hearing.  That document is now marked exhibit “H1” and I have read and evaluated the submissions advanced therein.

WIFE’S SUBMISSIONS

1. The total legal costs and disbursements sought to be recovered by the wife is $326,750 (“the costs amount”).

2. That sum did not include the costs of her lawyer’s preparation for this costs argument, the drafting of written submissions and the appearance of Senior Counsel on her behalf this day.

3. The costs amount did include an allowance for the previously reserved by her Honour Justice Macmillan for proceedings before her on 22 March 2012 and 27 April 2012, and earlier costs that had been reserved by his Honour Justice Cronin.

4. The wife had accepted responsibility for the payment of costs and disbursements of or incidental to the third respondent, her son, who was also represented by Mr Geddes in the trial, though no separate brief fee was marked for representing that client.  Likewise the wife’s solicitors represented the third respondent and did not additionally charge any fees, expenses or outgoings for that trial representation.  No separate legal bill was presented to the third respondent on behalf of the wife’s solicitors or Senior Counsel.

5. The wife submitted that it was just that an Order for costs be made in her favour and that there be a departure from s 117(1) of the Family Law Act 1975 (Cth) which required each party to proceedings under this Act to bear his or her own costs.

6. S 117(2) empowers a Court, if the circumstances justify it in so doing, to make such order as to costs as it considers just.  Thus the approach that I have followed is to carefully examine the evidence and submissions and consider each of the relevant matters identified in s 117(2A) and in particular I have had regard to:

   (a)the financial circumstances of each of the parties;

   (b)…

   (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 discovery, inspection, admission of facts, production of documents and like 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.

7. I must therefore evaluate each of these relevant factors and, on that basis, determine whether it is just that an Order for costs in favour of the wife be, or not be, pronounced and the quantum thereof.

FINANCIAL CIRCUMSTANCES OF PARTIES – s 117(2A)(a)

1. On the basis of my Judgment I have a very clear understanding of the financial circumstances of both parties, the financial effect of my Orders, the capacity of the husband to pay costs and the wife’s own financial situation, her sole ownership of her home and the division of all other property assets and liabilities between the parties.  I know the net amount that each party received under my Orders.

2. Thus the financial circumstances of each of the parties would not, in any way whatsoever, dissuade me from making a costs Order, if it be just.

THE CONDUCT OF THE PARTIES – s 117(2A)(c)

1. I have read carefully the wife’s submissions in paragraph 2 of her written document and they do clearly identify those paragraphs in my Reasons for Judgment where I concluded the husband had not complied with his obligation of full and frank disclosure, as required by the Family Law Rules. In particular I have re-read paragraphs 89, 177, 190 and 191 of the Judgment.

2. I accept that the wife’s solicitors were required and justified in issuing various subpoenas, as a result of which financial information was disclosed, which otherwise would have remained unknown both to her and to the Court.  I accept that the disbursements identified in paragraph 2.7.4 of the written submissions were properly incurred and should be fully recovered.

3. I made particular findings of and related to the husband’s assets, or those under his control, including real property in Europe and the evidence given by his sister.  I have re-read paragraphs 177, 204, 258 and 374 of my Judgment and each of my findings therein are relevant on this costs determination.

4. I have been referred to paragraph 89 of my Reasons for Judgment and, having considered all of the evidence and reported cases, I there said:

   I have therefore considered and applied these cases and the principle which they have established.  I have made a loading to the wife pursuant to s 75(2)(o) to properly reflect the risk of the husband’s non-disclosure of other assets, even though I have assessed such a risk as being very modest on the evidence that was finally given, in its updated and amended version, by the husband.

5. I conclude that the fact that I was persuaded on the evidence to make such an adjustment is an important factor to be considered in this costs evaluation, and in the exercise of my discretion in determining an Order that is just.

6. I pause to reflect upon the carefully prepared written submissions of the husband and the submission that, by already awarding to the wife a 5% loading pursuant to s 75(2)(o) the Court should not, or otherwise should very carefully reflect upon and resist the temptation to, award further legal costs to a party that had already benefited by such a substantial financial loading. 

7. I had referred Counsel to the decision of the Full Court in Mayne & Mayne [2011] FamCAFC 192 where the Full Court, as at September 2011 had considered legal issues related to the add-back of assets, findings of wastage and reckless or negligent conduct with matrimonial assets and s 75(2)(o). Under that very brief summary, and in a case where the Federal Magistrate at trial had awarded indemnity costs her Honour Justice May said, at paragraphs 144 – 146 (inclusive):

   144.It was held In the marriage of Greedy, that “[a]n award of costs ought to bear some relation to the conduct of the proceedings by the parties or to their relative circumstances at the time of the application and hearing of the matter.” It was further said:-

   …There may be situations where refusal to negotiate, to make an offer or to put forward an alternative order may be a factor justifying an order for costs. The failure of a party to take part in negotiations in a genuine manner may contribute to delay and cost and obstruct the proper resolution of the matter.

   145.In this case it might be considered somewhat harsh on the wife to have made the order on an indemnity basis, however the Federal Magistrate was well equipped to appreciate the history of this litigation and the impact of the wife’s failure to disclose, on the proceedings and the costs of the husband. In my view it could not be said that his Honour was wrong.

   146.The next question is whether the Federal Magistrate should have made an order that the wife pay the husband’s costs of the proceedings. As Mr Watkins correctly submitted to us, to order that the wife pay indemnity costs of the whole proceedings would be an extraordinary financial penalty. Having ordered the costs of the pre-trial proceedings, it would appear to be an unwarranted imposition to order in addition that the wife pay the costs of the trial. It cannot be said that his Honour was wrong in this respect.

8. As I have made a meaningful adjustment to my Orders in the s 79 proceedings as a result of what I found to be a proper outcome of my s 75(2)(o) findings, I have carefully reflected and evaluated that circumstance within the ambit of what is just to be ordered in respect of costs.

9. Mr Baker was at length to emphasise to the Court that there should not be any prejudicial assessment to the husband, or any “double dipping” by way of imposing a financial penalty on both issues.

10. I do not concur that there would be any unfair financial penalty imposed upon the husband if I were to pronounce a costs order.  I would only do so if it was just.  There is a clear demarcation between the orders made pursuant to s 79 in the division of property and the subsequent costs orders that are made, if appropriate, as a result of the evaluation of all of the s 117(2A) factors.  That is what I have done.

11. In my Reasons for Judgment in the s 79 application I record that, pursuant to s 75(2)(o) the adjustment that I ordered was largely on the basis that, given the husband’s lack of full and proper disclosure, I could not be certain that the entire asset pool had been brought to account.  An award of costs was made on an entirely separate basis.  I am satisfied that there is no “double dipping”.

NON-COMPLIANCE WITH COURT ORDERS – s 117(2A)(d)

1. The wife’s written submissions, in paragraph 3, detail the earlier interim hearings before her Honour Justice Macmillan, the Orders that were then pronounced and the assessment of costs, on a solicitor and client basis, or alternatively on a party / party basis which arose therefrom.

2. The wife’s submissions were that the husband’s “bold and ongoing non-compliance with orders caused the wife to incur additional and unnecessary legal costs through the further interim hearings of 22 March 2012 and 27 April 2012”.

3. I agree with the wife’s written submissions in that regard and there are no valid reasons advanced on behalf of the husband as to why I would not now order those costs to be paid by the husband.  That would be a just outcome.

WHETHER ANY PARTY WAS WHOLLY UNSUCCESSFUL - s 117(2A)(e)

1. The primary issue in regard to this sub-paragraph is more in relation to the orders sought by the husband against the third respondent. 

2. The orders sought by the husband in this regard were substantially amended during the hearing and the final orders which his then Senior Counsel addressed the Court upon were markedly different from those foreshadowed in his application filed prior to the commencement of the hearing.  Those matters are clearly expressed in the wife’s written submissions in sub-paragraphs 4.6, 4.7, 4.8 and 4.9 thereof.

3. I agree that, arising out of my Reasons for Judgment and Orders, the husband was largely unsuccessful in his claim against the third respondent.  This aspect of the hearing did extend the length of the trial, though I do not accept by a period of two full days.

4. I have concluded, and after a consideration of the husband’s reply submission, that it is just and proper to award a sum of costs on a party / party basis only for these two days.  I would not allow the quantum claimed by the wife in paragraph 5.6 of her written submissions.  A lesser sum is appropriate to properly reflect costs on that party / party basis.

5. I do not regard it to be my proper responsibility to enter into any specific assessment of such costs.  I am mindful of what is claimed on behalf of the wife and, in the exercise of my discretion, I believe that is excessive.  Also I have decided that I will not break down the individual sums, on an item by item basis, that are reflective in my final orders herein.  I consider that, in the exercise of my general and wide ranging discretion my obligation is to determine only an order that is just and likewise fix that quantum of costs.  That is what I have done.

OTHER MATTERS AS THE COURT CONSIDERS RELEVANT – s 117(2A)(g)

1. I do not accept that the matters identified by the wife in paragraph 6 of her written submissions add any validity or content to her submissions.  They are largely background to the matters and facts which are dealt with in earlier issues.

HUSBAND’S SUBMISSIONS

1. The essence of the husband’s submission is that the wife has already had a significant financial loading factored into my Orders and thus she has received a sum in excess of $360,000 more than he was awarded.  It is said that differential “is significant having regard to the total asset pool”.  I am acutely aware of that outcome.

2. I am asked to consider my evidence as to the husband’s state of health and the fact that he is unlikely to return to paid or gainful employment.  These are matters that I have properly balanced in the exercise of my discretion as to the payment of any costs.

3. Likewise the wife received the substantial matrimonial property in which she has and continues to reside and thus has very secure and permanent accommodation, in contrast to the Suburb K property awarded to the husband, which is subject to an ongoing lease agreement that was the subject of evidence in the proceedings.  To arrive at a just order I have evaluated and balanced this evidence and the more secure financial and social circumstances in which the wife now finds herself as a result of my s 79 Orders.

1. I have read but do not accept paragraphs 7 and 8 of the husband’s written submissions.

2. I am particularly aware of the involvement in the primary proceedings of Ms B and likely it was her research, enthusiasm and tracing of assets that enabled evidence to be led and somewhat, but not unnecessarily, lengthened the case.  Those matters however must be wholly evaluated in the context of the husband’s conduct and non-disclosure of assets and financial circumstances known only to himself.

3. There were paragraphs in my Judgment where I was somewhat critical of the wife, such as in paragraphs 388 – 391 (inclusive) and also Mr Baker referred me to paragraphs 528 and 532 which I have read and considered.

4. I therefore have balanced all of my findings and these issues in determining a just outcome on costs, and in the careful exercise of my discretion as to quantum.

5. I find that there is merit, and issues for concern, identified in paragraph 13 of the husband’s written submissions.  Of course the legal proceedings were complex and undertaken with much force and intensity.  Nevertheless the wife’s legal fees and disbursements escalated significantly, and that is addressed in that paragraph of the written submissions which cross referenced to paragraph 170 of my Reasons for Judgment.

6. I am not asked to order an itemised bill of costs, however the obvious escalation in costs incurred by the wife because of the continuing defended hearing and the work of her solicitors and Senior Counsel are no doubt reflected in the final bill of costs.  That said however there was a significant interruption in the hearing, and the necessity of the wife to brief Mr Geddes, when her earlier Junior Counsel of choice, Mr Davis, had become unwell and was not able to continue after the first four days of hearing. 

7. I do not know the costs charged by Senior Counsel in reading the transcript of those four days of hearing, in commencing his role afresh in the proceedings, in conferring and taking instructions and reading affidavits.  Generally I find that substantial costs were most likely incurred because of this unfortunate circumstance.  I conclude it would not be just to pass on those costs to the husband.

8. A further issue, which was not raised by Counsel for the husband, was the necessity to brief Senior Counsel in the part-heard proceedings to take over the matter from Junior Counsel.  This was a decision solely made by the wife and her solicitors and it clearly increased the ongoing daily fees charged and other fees for preparation and like matters.  I balance that decision against the fact that the husband had retained silk to represent himself in the hearing.

9. It was the wife’s right to engage Senior Counsel, but that decision should be made at her expense, as to the difference in Counsel’s fees charged.  Thus I have exercised my discretion to modestly reduce the wife’s costs sought in this regard.  

10. I do not have evidence before me of the fees charged by either Mr Davis or Mr Geddes QC, or of the increased costs brought about by the engagement of Senior Counsel.  I conclude these are matters that were proper for discussion between the wife and her solicitors and her engagement of Mr Geddes must have been in the knowledge of the increased fees, for which she should bear some financial responsibility.

THE LETTER OF 26 NOVEMBER 2012 – s117(2A)(f)

1. A formal written offer was made “in full and final settlement of this matter” on 26 November 2012.  The letter was addressed to the husband’s solicitors and, though I record the submission of his Counsel this day that he was never shown the letter, he acknowledged its contents were discussed with him by his then Senior Counsel and solicitor.  I proceed on the basis that the husband had knowledge of this offer when it was made.  I am satisfied that there was a discussion between his lawyers and himself and that he elected to proceed, for whatever reason, with the defended proceedings.

2. There are some aspects of that open offer that are unsatisfactory in the context of it being presented as the basis for a costs order.  As an overview it is difficult to accurately ascertain the financial impact of that offer, notwithstanding exhibit “W3”.

3. I accept, and it was not a matter of serious challenge from Mr Baker, that the husband likely would have achieved a similar, or perhaps slightly greater financial outcome if he had accepted that offer.  Most certainly the parties would not have incurred the ongoing and substantial legal fees and disbursements post 26 November 2012.

4. The offer was structured upon the wife retaining ownership of the investment property at S Street, Suburb T.  This did not eventuate as I pronounced an order for sale of that property.  Likewise the property was valued at $920,000 and that is somewhat in conflict with paragraph 5(b) of that letter of offer.  I do not accept that the variation of $120,000 can properly be explained by the uncertainty of the property market, what it might now sell for and the related costs and expenses of sale. 

5. I proceed upon the basis that the letter of offer is an important document.  However it is not constructed on the basis of a percentage division of assets but upon a more refined division of particular items of property and personal chattels.  Thus it is not exact and it cannot be said that the wife received all of the substantial and primary assets that were identified in that letter.

6. Mr Geddes referred the Court to Pennisi v Pennisi (1997) FLC 92-774, a decision of the Full Court (Nicholson CJ, Barblett DCJ and Faulks J). In discussing a written offer of settlement, and one that might be close to the Judgment, but marginally less than the amount ordered by a Court, the Full Court there said:

   The husband's submissions refer to Robinson and Higginbotham (1991) FLC 92-209 as authority for the proposition that the fact that an offer just exceeds the award is no bar to an award for costs. Equally, however, it is only one of the factors to be considered under s 117(2A) and it is not the law that an offer of greater or equivalent value to that which results from the Court will lead to an order for costs in favour of the offeror — Harris and Harris (1991) FLC 92-254.

   We would also add that just because an offer is marginally less than the amount ordered by a Court does not mean that it is not a factor to be taken into account in determining whether costs should be awarded.

   The requirement to take account of certain types of offers is mandatory, providing of course the fact of those offers are in evidence. The relevant portion of s 117(2A) is as follows:

   ``In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   ...

   (f) whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer'' (emphasis added).

   The plain words of the paragraph do not limit a Court's attention to offers which are greater than the amount awarded. Nor does the paragraph state what consequences flow from whether the offer is greater or lesser than the amount awarded, or how much that is the case. Words of limitation should not be imported into the provision and nor should it be read as though offers in proceedings under the Act carry the same consequences as payments into Court in common law matters.

   We do, however, consider that the closer the offer is to the award when the offer is under the amount awarded by the Court, the more weight that should be given to this factor in considering the question of costs. This principle must not, however, be rigidly applied. Offers must be seen in the context of the case and the extent of the offeree's knowledge of the parties' financial circumstances while the offer is live. In the family law jurisdiction, it is not uncommon to find relationships where one party, often the wife, has significantly less grasp of the parties' financial arrangements, or the financial circumstances are so complex that it would be premature to accept an offer. There are also cases where the contents of the offer are in themselves the subject of disputed value and legitimate subject matter for determination. These and other features of the context of offers must be taken into account when considering whether it was reasonable or not to accept an offer, no matter how close to the ultimate result the offer may be.

7. As an overview I am supported in my exercise of discretion by the existence of that offer, and generally the total sum that the husband would then have received upon its acceptance and the substantial Court costs and disbursements that he would have avoided for both parties by then settling the issues in dispute before the Court.

BASIS OF COSTS SOUGHT

1. As I have identified the wife’s costs are now sought on the basis of solicitor and client costs, that is by a payment to her to equate to the costs and disbursements which she has actually incurred.  An award of costs on this basis was opposed by the husband who, first opposed all costs orders, but my understanding was that his case was founded upon the basis that, if there be any costs order then, it be only be made on a party / party basis.

2. In the exercise of my discretion I have determined that there should be a costs Order.  I find that is a just and proper outcome of this strongly contested litigation. 

3. In the exercise of my discretion and upon my substantial knowledge of the evidence in this case, I have concluded that costs should be awarded on a party / party basis and therefore not the more generous basis of solicitor and client costs as argued for on behalf of the wife.  That is also a just outcome.

ASSESSMENT OF QUANTUM OF COSTS

1. I have no itemised bill of costs before me and I have earlier outlined the specific request of both clients through their Counsel.  I have approached this case on the basis that I will assess a quantum that is just.

2. I have had regard to the various matters which I have touched upon in these Reasons for Judgment.  I have specifically avoided any “double dipping” but I have fixed a sum that is consistent with the husband’s conduct of the proceedings, lack of appropriate financial disclosure, rejection of the offer of 26 November 2012 and the other matters which I have identified.

3. In the exercise of my discretion and without providing any further breakdown of this total sum, I find that a just sum of costs is $145,000.  I will order that the husband pay costs in that sum to the solicitors for the wife.

4. Given my understanding of the financial position of the husband, the necessity to sell real property and the other financial issues arising from my primary Judgment, I stay the payment of costs for six (6) months, free of interest. After six months, interest will then accrue quarterly in arrears at the rate prescribed from time to time within the Family Law Rules on such quantum of costs as remain outstanding from time to time.

5. I have included within the quantum of costs which I have ordered costs arising on the subpoena issues, from the previous Court hearings before their Honours Justices Cronin and Macmillan and any other reservation of costs made in those interim proceedings are otherwise dismissed.

6. I have decided that it would be inappropriate, and not a just outcome, to make any orders in respect of the costs of and incidental to the hearing before me this day, or the preparation of written submissions.  I do not further reserve those costs.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 17 January 2013.

Associate: 

Date:  8 February 2013.