DISHMAN & DISHMAN (No.3)

[2020] FCCA 726

FEDERAL CIRCUIT COURT OF AUSTRALIA

DISHMAN & DISHMAN (No.3) [2020] FCCA 726

Catchwords:
FAMILY LAW – COSTS – Due process – Court’s power to deal with Application for costs – financial circumstances of the parties – conduct – where the husband has been wholly unsuccessful – offers – basis for costs – Order for costs made against husband on a party-party basis.

Legislation:

Family Law Act 1975 (Cth), ss.117, 106A
Federal Circuit Court Rules 2001 (Cth), sch.1

Cases cited:

Allesch & Maunz [2000] HCA 40

Colgate-Palmolive & Cussons (1993) 46 FCR 225
Prantage & Prantage (Costs) [2014] FamCA 850
Black & Kellner [1992] FLC 92-287
Peake & Benedict (Costs)[2014] FCCA 2723
Stanford v Stanford (2012) 247 CLR 108
Penfold v Penfold (1980) 144 CLR 311
Watton & Smart (Costs) [2014] FCCA 2826
Lennon & Lennon (Costs) [2012] FamCA 116
Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812
Davida & Davida (Costs) [2011] FamCAFC 61
Browne & Green [2002] FamCA 791

Applicant: MS DISHMAN

Respondent: MR DISHMAN

File Number: PAC 6114 of 2018

Judgment of: Judge Harman

Hearing date: 5 March 2020

Date of Last Submission: 5 March 2020

Delivered at: Parramatta

Delivered on: 5 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Ford

Solicitors for the Applicant: Matthews Dooley & Gibson

No appearance by the Respondent

ORDERS

1. The Husband shall pay to the Wife, as a contribution to the Wife’s costs on a party/party basis, a sum of $35,000, such costs to be paid by the Husband to the Wife by 4pm 3 April 2020, failing which:

   a)Interest shall then accrue upon that sum at the rate prescribed from time to time from the Federal Circuit Court Rules; and

   b)The Wife shall then be entitled to commence proceedings for recovery of that sum together with interest and cost in a Court of competent jurisdiction.

2. Dismiss the Application in a Case filed 12 November 2019.

3. Dismiss the Application in a Case filed 9 December 2019.

4. Remove all issues from the list of cases awaiting hearing.

5. Note: That the Husband has failed, refused or neglected to execute a document or documents necessary to authorise, permit and instruct Mathews Dooley & Gibson Solicitors to release to the Wife (from a controlled monies account maintained by them in trust for the parties jointly) the sum that is presently held by them, which funds are the property of the Wife pursuant to the Orders of this Court made 8 October 2019.

6. Noted: An approach has previously been made to a Registrar of the Court pursuant to section 106A (Order 12 of the Orders made 8 October 2019) to have the above document or documents signed by a Registrar on behalf of the Husband so as to permit the release of funds to the Wife and the Registrar has declined to execute that document or documents as the Husband had filed an appeal from the Orders 8 October 2019 which had not yet then been determined and, further, had filed an Application in a Case seeking a stay or Orders (although no stay has ever been granted).

7. Noted: All appellant controversy before the Full Court has now concluded and by dismissal of any Application made by the Husband.

8. Direct all Registrars of the Federal Circuit Court to forthwith, upon presentation to them, to sign all deeds and instruments presented to them by the Wife’s legal representatives on behalf of and, in the place of the Husband so as to authorise and permit the release to the Wife of all funds presently held by Mathews Dooley & Gibson Solicitors in trust on behalf of the parties (whether held in their trust account, controlled monies account or otherwise.

IT IS NOTED that publication of this judgment under the pseudonym Dishman & Dishman (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 6114 of 2018

MS DISHMAN

Applicant

And

MR DISHMAN

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court today to address a number of Applications. 

2. The Applications before the Court today are, in essence, three. Firstly, there is an Application in a Case filed by the husband 18 November 2019. That Application would appear to raise a number of issues, none of which are germane for today’s purposes. Secondly, there is a further Application in a Case filed by the husband which raises a plea for relief in relation to a stay pending disposal of a Full Court appeal as well as various other matters. Thirdly, there is an Application for costs by the wife.

3. The wife appears today and is legally represented.  The husband does not appear.  Accordingly, some consideration of due process is necessary. 

Due process

1. The substantive proceedings. which have given birth to the myriad applications before the Court today, comprised a relatively straightforward application for property adjustment. Those proceedings were commenced by an Application Initiating Proceedings filed on 19 December 2018. A Response thereto was filed, by the husband, on 12 March 2019.

2. The substantive proceedings were heard 23 September, 2019 and determined by the Court with judgement delivered on 8 October 2019. Orders were made on that occasion which concluded the substantive proceedings. Those Orders, however, gave birth to each of the Applications before the Court today, together with an Appeal to the Full Court.

3. The Appeal to the Full Court, without traversing the totality of machinations arising therein, was disposed of by a judgment delivered by Ryan J.  Accordingly, that Application is no longer extant. 

4. The husband, by a written submission that he has provided to the Court, together with correspondence which counsel for the wife has disclosed to the Court, has signalled an intention to make Application to the High Court for special leave.  All that need be observed with respect to that signalled Application is:

   a)The Application would not appear to have been made to date (certainly no notice of the Application having been made is provided to the wife’s legal representatives);

   b)The time in which the Application could be made has now passed;

   c)The husband does not appear before the Court to agitate any position subsequent upon any such Application, real or anticipated. 

5. The Applications filed by the husband had been made returnable before the Court on 11 February 2020.  That date had already been allocated to the Application for costs pressed by the wife.  I will turn to that Application shortly. 

6. The husband did not appear on 11 February 2020.  The husband had communicated to the Court, via his written submission, that he was unable to attend as a consequence of having already committed to and paid for a holiday, which left Sydney on 4 February 2020.[1]

   [1] Paragraph 5 of the written submission

7. The written submission does not indicate when the husband was due to return, although the wife was aware of that and communicated to the Court, through her legal representatives, that the husband was, in fact, due to return a day or so after 11 February.  On the basis of that knowledge, and the Application of the wife’s legal representatives that the proceedings be adjourned to ensure that due process was afforded to the husband, the matter was put over to today’s date.

8. I am satisfied that the husband is fully aware of the listing before the Court today.  Firstly, tendered in evidence, Exhibit B, is correspondence forwarded to the husband with respect to the adjournment and the orders and directions made on the last occasion.  Throughout the proceedings, material has been served and exchanged between the husband and the wife’s legal representatives via email, and using the email address to which notice has now been forwarded of today’s listing.  There is nothing to suggest the email address is not current.  Indeed, it is the email address provided by the husband on the documents that are filed by him.

9. Secondly, since the matter was last before the Court, the husband has made Application to obtain a transcript of the proceedings for that day (11 February, 2020), which transcript has been provided to the Court and the parties. Accordingly, even if the husband had not received the correspondence forwarded to him by the wife’s legal representatives, and I am satisfied that he would have been alerted to the date on that basis.

10. Thirdly, the matter was listed today at 9.30 am.  The matter was not called for a variety of reasons, but including a desire to afford to the husband an opportunity to be present in the event that he was delayed by inclement weather or other misadventure.  The matter was not called until approximately 9.55 am.  At that point, and as the husband was still not in attendance, my Associate, in open Court, contacted the husband on the mobile phone number provided by him on each of the documents filed in these proceedings. 

11. The husband answered and indicated he was not available. When it was communicated to the husband that the call would be transferred to open Court, and whilst that was occurring, a matter of moments, the husband hung up.

12. The matter was not ultimately dealt with, and these reasons commenced, until approximately 10.25, nearly an hour after the matter was first listed. 

13. In the above circumstances, I am satisfied that:

    a)The husband is, in all probability, aware of the listing of the proceedings before the Court today;

    b)The husband is aware, in all probability, of the Applications that are to be heard and determined today, being his two Applications together with the Application of the wife seeking costs;

    c)Due process has been afforded to the husband.

14. In that regard, I am conscious of that which fell from the High Court in Allesch & Maunz [2000] HCA 40 (Allesch & Maunz) and, in particular, that expressed at paragraph 49 thereof by Kirby J. What the High Court indicated, clearly, at the risk of impermissibly paraphrasing their Honours, is that the requirement of due process is afforded and met by ensuring that a litigant has a reasonable opportunity, in all of the circumstances, to participate in the proceedings. I am so satisfied with respect to the husband.

15. The husband has, in all probability, chosen to not appear. There is no apparent misadventure or other reason known as to why he would not be in attendance. A sufficient period has passed since the matter was listed and stood in the list to enable the husband to appear. He still does not appear.

16. In the above circumstances, I intend to proceed to hear and determine the matter on a final and undefended basis as regards each of the Applications before the Court.

Material considered in dealing with the proceedings today

1. I have read and considered each of the following documents:

   a)The Initiating Application filed 19 December 2018;

   b)The Response to Initiating Application filed 12 March 2019;

   c)The Application in a Case of Mr Dishman filed 12 November 2019;

   d)The Application in a Case filed by Mr Dishman 9 December 2019;

   e)The Affidavit of Ms Dishman filed 17 December 2019;

   f)The Wife’s Affidavit filed 18 February, 2020;

   g)The Affidavit of the wife’s legal representatives filed 17 December 2019;

   h)The written cost submissions provided by counsel for the wife and filed 17 December 2019;

   i)The written cost submissions of Mr Dishman, the date of filing of which is not apparent but, for the purposes of today’s proceedings, they will, to ensure that they can be located in the event of appellate controversy, be marked as Exhibit X.

   j)Exhibit A, a Minute of Orders proposed by the wife in relation to costs;

   k)Exhibit B, the correspondence to which I have already referred, being that advising Mr Dishman of today’s listing and the applications that would be sought to be pressed from the wife’s perspective.

The Husband’s Applications

1. The two Applications in a Case filed by the husband can be dealt with in short measure. 

2. It would be open to the court to dismiss the Applications for want of prosecution in the light of Mr Dishman’s non-attendance.  It would also be open to dismiss the Applications by reference to their merits.  It is the latter course I propose to take although, clearly, the applications can and should be dismissed for want of prosecution.

3. The Application in a Case filed 12 November 2019 seeks that the operation of Orders made by this Court on 8 October 2019 be stayed and that no Order as to costs be made. 

4. It is trite to observe that Mr Dishman is, and has been throughout the proceedings, self-represented. Accordingly, it is difficult to anticipate what costs might be pressed by him. Thus, the latter relief is entirely appropriate.

5. The stay is sought on the basis of the pending appeal to the Full Court. That appeal is spent. Thus, there is no utility in the Application. It must fail.

6. The Application filed 9 December 2019 seeks that the Application in a Case itself – and, one would think, the totality of the proceedings, if remitted following successful appeal – be listed before a different Judge and that the hearing dates for the two Applications in a Case - comprising the earlier Application in a Case together with that to which I now refer – be adjourned to a date after 18 February, 2020. 

7. The latter portion of the relief has been achieved with the consent, indeed, on the application of, the wife.  The earlier portion of the Application has no merit. 

8. An Application for recusal was made in the substantive proceedings.  It was dealt with, determined and refused.  It was the subject of appeal to the Full Court.  The Appeal was refused.  The Application has been disposed of.

9. On that basis, similarly to the first, the Application in a Case must fail.

10. That then leaves the issue of costs. 

Costs

1. The wife seeks costs, in accordance with Exhibit A, in the sum of $35,000. 

2. Whilst Mr Dishman refers throughout his material to an indemnity costs order, I do not, for one moment, accept that the wife proceeds on that basis. 

3. Certainly, the material that is filed in support of the Application agitates for an order for costs as to a specific sum.  But the costs that are sought, in light of the controversies that have been addressed in the substantive proceedings are “proportional”, (to adopt the language of Practice Direction 1 of 2020), and reasonable. 

4. The costs that have been incurred in the proceedings, by reference to the Affidavit filed on 17 December 2019, have been somewhat inflated by the position adopted by the husband towards various aspects of the case, including what might be described as a clear disdain towards the solicitor previously retained by the wife.  Comments with respect to that legal practitioner and, for that matter, the current legal practitioner, abound within Mr Dishman’s material filed in these proceedings generally, but more specifically in his submission.

5. In any event, I will deal with the issue of indemnity costs as it is raised by Mr Dishman, and I would be loath to not engage with an issue thus raised. 

6. It is germane to observe the basis upon which costs are sought by the wife and “the power vested in the Court” to deal with the Application.  That is the specific issue raised by the husband, which I will also address shortly.

7. By her Initiating Application filed 19 December 2018, the wife sought relief with respect to property adjustment under Part VIII of the Family Law Act. Paragraphs 1 to 11 of the relief sought set out the property adjustment orders sought. The wife then sought an order pursuant to section 106A to permit a Registrar of the Court to sign documents in the event of the refusal or default of a party. That is, relief ancillary to and fundamentally connected with the discharge of the Court’s duties under Part VIII, but an order the jurisdictional basis for which arises under Part XV.

8. Similarly, the wife sought an order for costs at paragraph 13 of the orders sought. Thus, the Application for costs made by the wife has been known to the husband since he was served with the wife’s Initiating Application. The costs issue was the subject of a leave granted at the conclusion of the substantive proceedings 8 October 2019 (to relist in the event that costs were pressed). Directions were made as to what was to occur, including the filing of a Minute of Order and appropriate evidence and a request to Chambers to provide a date upon which to agitate for relief. All of that has occurred in accordance with the Court’s Orders.

9. The costs that are sought amount to $35,000. 

10. The submissions on costs which are filed by the wife address the financial circumstances of the parties, the conduct of the parties and, importantly - it being a substantial issue in the proceedings, albeit connected with conduct – offers of settlement that are made in the proceedings. 

11. The submission filed on the wife’s part alludes (paragraph 35) to the quantum of costs occurring as a departure from the general rule, if it might be so described, discussed in Colgate-Palmolive & Cussons (1993) 46 FCR 225 and as discussed extensively by the Full Court in the Prantage & Prantage (Costs) [2014] FamCA 850 litigation, (rather than on a party-party basis, what might be described, and as is described in the above authorities, as the usual basis). As indicated, I will address that issue in due course although, it must be made clear from the outset there is little difference between the quantum of costs that arises on either basis.

12. The submission that is filed on behalf of the husband will be considered in detail.  That is not so as to focus upon it unfairly as regards the wife’s submissions or to accept the wife’s submissions without challenge.  The submission is relied upon, together with the material that is identified above, to ensure that even though the husband is not present and may well have chosen to absent himself from this determination (that would be a position consistent with the husband’s application, sought to be re-agitated, for recusal), so as to ensure that even though the husband is absent and, as discussed in Allesch & Maunz, he has an opportunity to place material before the Court and make submissions.

13. The husband raises a number of matters which warrant address as specific and separate questions:

What is the Court’s power to deal with the Application for costs? 

1. Paragraphs 1 to 4 of the husband’s submission is focused upon this issue.  The husband raises complaint that the wife has not filed an Application in a Case and, as a consequence, the court is not empowered to hear any such application and jurisdiction is not enlivened. 

2. I reject the submission. 

3. As I have already indicated, the wife sought costs in her Initiating Application filed at the commencement of the proceedings.  The Application for costs that is now pressed is that contained within that Initiating Application.  Thus, no Application in a Case is necessary. 

4. The Court controls its processes and affairs.  Orders and directions were made to guide the determination of this controversy.  Hence, the directions to which I have already referred, made at the conclusion of the substantive trial, for the wife to undertake certain actions should she wish to press that Application.  The determination of that issue was, as it were, reserved.  It is now determined.

Opportunity to be heard

1. The husband raises complaint (paragraph 6 of his submission) that it is not open to the court to make an Order for costs without giving the parties a chance to be heard, referring therein to Black & Kellner [1992] FLC 92-287.  One might also, as I have already alluded to, refer to the High Court’s decision in Allesch & Maunz. 

2. Mr Dishman has, of course, been given an opportunity to be heard.  The Court cannot force the husband to participate in the proceedings if he chooses not to.  There is no basis to not proceed with the matter, as the husband, clearly, is contactable, although he had indicated, as would hopefully be reflected in the transcript, that he was not available when he was contacted by telephone.  However, being satisfied that he has been advised of the proceedings, the proceedings adjourned to permit his return from a cruise and, thus, his attendance (noting that his two Applications in a Case were also listed on the same day), and the Court, having done all within its power to engage the husband today, an opportunity to be heard has been given. 

1. One can only infer that this complaint is connected with the complaint above, that the husband has not been served with an Application in a Case. The husband has been served with an Application Initiating Proceedings which seeks the relief that is pressed and a Minute of Orders sought (amending, or perhaps more correctly, particularising the relief that is sought), together with the Affidavit material relied upon.

Costs Power

1. The husband raises complaint (at paragraph 7 of his submission) that the Court has not identified the source of power to unilaterally fix the directions hearing date for determination of the costs issue, notwithstanding the Applications in a Case of the husband are listed the same day.

2. The Court has an inherent power to control its own affairs.  It was made clear in the directions made 8 October 2019 that the matter would be fixed a date to enable the wife to press her Application for costs should she trigger that event by confirming her desire to press the Application and taking certain steps.  Thus, I am not troubled by the husband’s complaint that the Court has failed to identify its source of power for conducting its own affairs. 

3. Further, the matter has been adjourned to accommodate the husband’s absence. The husband is, as I have already expressed, to my satisfaction, fully aware that the matter is listed today and why.

Complaints with respect to recusal

1. Throughout the submission that is filed by the husband, he repeats complaints in relation to suggested bias, pre-judgment and the like.  Those complaints have been addressed in judgments of both this Court and the Full Court.  They need not be canvassed further, and the best that can be made of the husband’s focused repetition of those complaints is that the husband has perhaps become distracted by his attachment to those complaints.

The Husband’s Appeal

1. The husband raises (paragraph 13) that he has made Applications in an Appeal which have been listed unusually quickly.  Indeed, they were listed expeditiously.  Whether that is unusual or not I need not consider.  What is clear, however, is that those Applications have been dealt with and disposed of.  The husband was not successful on any ground. 

2. As I have already alluded to, whilst the husband suggests at paragraph 14 of his submission that he was, at the date of preparation of his submission, organising for an application for special leave to be prepared, there is no knowledge of any such application.  Even if there were, the husband does not appear today to agitate against the relief that is sought by the wife. 

3. If, of course, the husband makes an application for special leave, leave is granted to prosecute it out of time and it is successful, this determination will come to nowt.  It will, no doubt, become part of a remitted controversy.  But they are matters for the husband and the appellate Courts.  The wife need not be further inconvenienced or delayed.  That is particularly so noting that there has been no attempt by the husband at compliance with the Orders of 8 October 2019, notwithstanding the disposal of the appeals.  There is no Application, to date pressed, with respect to a stay on any basis. 

4. The husband has failed to tender any sum to the wife in satisfaction of the Orders that were made.  The husband has, the Court is advised, failed to execute a document required to release to the wife funds that:

   a)She is entitled to receive under the Orders that were made; and,

   b)The husband has always proposed the wife would retain. 

5. Accordingly, that conduct, of itself, is disingenuous.

6. One might infer that the husband’s position is that all determinations should be postponed or stayed until a special leave application has been made.  Absent evidence from the husband that he has prosecuted that position, I am not satisfied that it is so.

Complaints by the Husband with respect to the Wife’s solicitors

1. The husband then puts matters in relation to the costs Application itself. It is most convenient to deal with the majority of those matters by reference to section 117 of the Family Law Act 1975 (Cth) and to which I will shortly turn. However, prior to doing so, I make clear that complaints raised by the husband at paragraphs 47 to 53 of his submission are completely ill-founded. Therein, the husband has sought to quote a number of comments made by me in an earlier decision relating to costs (Peake & Benedict (Costs)[2014] FCCA 2723[2]).  The husband seeks to apportion those comments towards the solicitors for the wife, suggesting that they have played “hardball” or used “scorched-earth litigation” tactics against him.  The husband has sought to infer, through those submissions, that the comments previously made were either disingenuous – although he is unaware of and does not quote or refer to the context of that decision – or that they should be applied in this case so as to defeat the wife’s Application for costs. 

2. In particular, the husband at paragraph 52 quotes from the earlier decision Peake & Benedict the comment:

   “Hardball” or “scorched earth” litigation of this nature has no place in modern litigation and certainly not in litigation before the Federal Circuit Court of Australia. Such an approach sits uncomfortably with the mandated lack of formality which underscores the exercise of jurisdiction by this Court, whether in family law or general federal law. Such an approach cannot be reconciled with informality. [3]

   [3] Paragraph 184 of the judgement

3. I make clear, lest it be the subject of future controversy, that the conduct of the wife’s legal representatives, both former and present, is above reproach.  The wife’s affairs have been conducted with aplomb.  The matter has been conducted efficiently, courteously, with prompt attention to detail, compliance with Orders of the Court, and all that was required to be done, done properly and well.

4. To the extent that the above comments are in any way relevant to this litigation, I make clear that the comment sits uncomfortably with the husband’s conduct, to which I will shortly turn. 

5. This case has no place before the Court.  It should never have needed to be filed. Not because of any default on the part of the wife, but because of the husband’s attitude. 

6. As will become apparent, an offer to settle, far more advantageous to the husband than the result ultimately achieved by him, was made before litigation was even contemplated.  It was either rejected or not responded to. 

7. The husband has conducted the case with a focus upon two specific issues in the evidence.

8. Firstly, a complaint that the wife had, in an earlier document filed in the proceedings, identified that the parties were “joint tenants” of two parcels of real estate, whereas they were, in reality, “tenants in common”.  The husband, thus, refers continuously to his legal interest in those properties, it being, quite clearly, in excess of the wife’s (i.e. the parties held the title to those properties as tenants in common in disproportionate shares favouring the husband).  Nothing at all turns upon that issue, and yet it has been an absolute focus, verging upon obsession, on the part of the husband, pointing out at every opportunity, including in the submission filed with respect to costs after conclusion of the final proceedings, that the statement was incorrect.  I accept that it was, but it may well have been innocent and, certainly, it had no bearing whatsoever upon the determination of the proceedings. 

9. As was commented by the High Court in Stanford v Stanford (2012) 247 CLR 108, the starting point for a determination of what Order, if any, should be made with respect to property adjustment, is to identify the present legal and equitable interests in property of these parties. That was done. It was done at trial, accurately and on the agreed evidence of the parties, albeit the husband declined to participate in the hearing.

10. The simple reality is that the complaint that is raised, steadfastly and stridently by the husband, has had no bearing whatsoever on the substantive proceedings and certainly has no relevance to this application.

11. Secondly, the husband has complained throughout that the wife has failed to give full and proper disclosure with respect to an inheritance that she received during the relationship.  Complaint is raised that she has understated the inheritance.  What is curious about that is that there is no dispute that:

    a)The wife received an inheritance;

    b)The inheritance exceeded $1 million; and,

    c)The inheritance was the substantial basis upon which the parties were able to acquire the above parcels of real estate. 

12. If the wife had understated the inheritance, that is to her prejudice, not her advantage.  In any event, the controversy that is raised by the husband as to suggested nondisclosure was determined on 8 October 2019 with a positive finding that the wife had provided full and frank disclosure. The husband was simply incorrect in that asserted by him and remains so.

13. The second matter that specifically requires comment is paragraph 47 of the submission, reading:

    I apologise for having wasted the Court’s time by thinking I had any entitlement to anything in the course of the proceedings.  I was obviously slow in understanding the warm relationship between Judge Harman and Mr Kearney and Judge Harman’s obvious dislike of me.

14. I address the statement not to give it credence but simply to ensure it is not left unaddressed.  It is a false statement based upon nothing but Mr Dishman’s presumptions. 

15. There is no warmth of relationship between the bench and any of the practitioners who have appeared in this or any other matter, merely the reality that legal practitioners, as officers of the Court, might, and should be, afforded the respect of the Court for their professional skills and nothing more. It is connected with Mr Dishman’s complaints, in the remaining paragraphs, that he had been “assured” that he could deal with the wife’s legal representatives as they would deal with him, on a fair and proper basis, as the Uniform Solicitors’ Conduct Rules require. I have no doubt that that is exactly what happened from the perspective of the wife’s legal representatives. 

16. To the extent that it is suggested, for example, that it was held out to Mr Dishman that “Mr Kearney could do no wrong”, that is simply incorrect.  What was stated, as is footnoted by the husband by reference to that statement, are comments that “Mr Kearney was a nice man, a good lawyer, that the wife would have received sensible advice” which, indeed, clearly, she has, based upon how the case has been presented and conducted, and that the wife’s lawyers “had been chosen well by her as being conciliatory and experienced with a focus on finding a solution”.

17. At this point in the proceedings, sadly, such a comment could not be addressed towards Mr Dishman. He has, since early in the proceedings and, in light of the above two issues (the holding of title to parcels of real estate and the receipt of the wife’s inheritance), been substantially, if not exclusively, focused on those issues. Ultimately, he has refused to participate in the final hearing of the proceedings as his Application for recusal had failed on the basis that his complaints with respect to the above matters had not been accepted.

Costs

1. As is correctly submitted by counsel for the wife, issues of costs are addressed under the Family Law Act 1975 (supra) by reference to section 117 of the Act. Section 117 represents a departure from what might be described as the usual rule in civil litigation that “costs follow the cause”. 

2. Both Mr Dishman and the wife’s counsel commence with the statement, that made by the High Court in Penfold v Penfold (1980) 144 CLR 311 (Penfold), that s.117 creates a “general rule” that each party shall bear his or her own costs.

3. To that end, and noting that the parties are agreed as to the High Court’s discussion of the issue in Penfold, I incorporate herein paragraphs 106 to 107 and 109 of my earlier decision in Watton & Smart (Costs) [2014] FCCA 2826 (Watton & Smart) addressing and referring to both the High Court’s discussion of those issues in Penfold as well as the decision of Murphy J in Lennon & Lennon (Costs) [2012] FamCA 116 (Lennon & Lennon (Costs)), relevant to offers of settlement to which I will shortly turn: 

   106. Counsel for the husband has referred me to the erudite discussion of the interplay of sections 117(1) and (2) contained within the High Court’s decision of Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311 and, in particular, paragraphs 12 to 14 thereof and which I incorporate herein:

   [12] It is an accurate description of s 117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s 117(2). As sub-s (1) is expressed to be subject to sub-s (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

   [13] Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117(2) in “a clear case”.

   [14] Sub-section (2) does not, in our view, as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v Kent (1970) 92 WN (NSW) 503 at 505). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

   107. I am conscious, as was discussed by the High Court in Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] HCA 44; [1998] FLC 92-812 that I must be satisfied as to both a justifying circumstance and the justice and equity of an order for costs before exercising the discretion created by subsection (2). I must, in doing so, consider each of the matters set out in section 117(2A).

   …

   109. I am referred by the husband’s counsel to the decision of Murphy J in Lennon & Lennon (Costs) [2012] FamCA 116 and in particular paragraphs 70 – 74 and 88 – 89 inclusive and which paragraphs I incorporate herein:

   Offers to settle – s 117(2A)(f)

   70. Litigation in this Court is expensive and, it seems, increasingly so. The consistent emphasis of the procedures of this Court and indeed the Rules is to encourage – at every stage of the proceedings – conciliation and the resolution of disputes by agreement.

   71. Further, and to that end, separate from the Court processes and procedures, the Court encourages actively the use of private alternative dispute resolution processes.

   72. Where negotiation – whether formal or informal – fails, for whatever reason, there is, as a matter of practical reality, but one method by which parties can seek to avoid for themselves the cost of litigation. That is by making a written offer to settle demonstrating their bona fides and asserting clearly and unequivocally what they consider to be (relevantly) a just and equitable outcome of the proceedings the subject of their dispute.

   73. Bona fide offers made in this way can be seen as involving significant peril if litigation is pursued in rejection of them. (See e.g., In the Marriage of Murray (1990) 14 Fam LR 311; In the Marriage of Steel (1992) 15 Fam LR 5; Pennisi & Pennisi (1997) FLC 92-774).

   74. In Browne & Green [2002] FamCA 791; (2002) FLC 93-115 the Full Court said (at [57]):

   We think that whilst s 117 (2A) does not provide any direct guidance to where weight should be given in any one particular case, it is very important for the court to give proper consideration to written offers of settlement that have been made. The insertion of s 117C is a clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation on indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration, is something to which very significant weight indeed, ought normally be given.

   ...

   88. Secondly, it was submitted that the husband could not accept the offers regarding property settlement without knowing what the parenting arrangement would be. In cases such as the present where both property and parenting issues are in dispute, it was submitted that those two matters are so interrelated that it is not possible to consider either of them discretely. I do not accept that.

   89. There is no form prescribed in the Rules for making an offer. The Full Court has observed that an offer does not have to precisely accord with s 117C before it may be taken into account (see for e.g., Harris & Harris (1991) FLC 92-254; Kilch & Wood [2003] FamCA 629; (2003) FLC 93-169). There is nothing preventing a party setting out extensively – indeed prosaically – the basis upon which they will accept an offer. It was open to the husband to respond to the wife’s offers setting out the property settlements he would accept, depending on various parenting arrangements. There is nothing to prevent it and much to commend it.

4. Notwithstanding the general rule, subsection (2) reserves to the Court a discretion to award costs when satisfied on the dual test (see Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812) that there is justification for departure from the general rule and that it is just that it be so.

5. In determining each of those issues, the Court must have regard to the prescriptive but non-exhaustive list of considerations in subsection (2A). 

6. Subsections (3), (4), (4A) and (5) are not relevant to this determination, dealing as they do with applications by or involving Independent Children’s Lawyers or child welfare agencies. 

7. I will deal with each of the section – subsection (2A) factors individually.

Financial circumstances of the parties

1. Having heard and determined the substantive proceedings between the parties, the Court is in a position to understand the financial circumstances that apply to each. 

2. Neither party, it would appear, is presently in full-time paid employment.  The husband, as is set out in paragraphs 16 to 20 of his submission, raises the complaint that he has far greater expenses than the wife in that he services the mortgages encumbering the two parcels of real estate to which I have referred, being investment properties with tenants.  The husband deposes as to his rental payments.  The husband suggests that he is presently living off his superannuation, having completed employment in August 2019.  The husband complains that he has retired early as a consequence of a plan of the parties jointly which, having triggered the initiation of that plan, he was “out of the blue” advised by the wife of her “unilateral termination of the marriage”.

3. I accept that the husband may have taken those issues to heart, as it were, and have experienced some significant emotional trauma, but they are not relevant to this determination.  What is relevant are the financial circumstances of the parties.  Neither party is in a strong financial position. 

1. Whilst I accept Mr Dishman services the mortgages upon the properties, he also has the benefit of their title and the rental income received therefrom and any tax adjustments that might be made with respect to negative gearing.

2. The wife, on the other hand, is not in paid employment.  Not only is she not possessed of any significant asset of the relationship, she is not even able, as a consequence of the husband’s failure or refusal to sign a single document to permit it to be so, to access the cash funds that would be available to her and which, as I have already observed, have, by the husband’s own Response, been conceded as funds that the wife should retain and receive. Thus, the husband effectively controls all assets either as a consequence of his majority ownership, in the case of real estate, or by his refusal to execute documents, in the case of the controlled monies accounts to which the wife is entitled.

3. The Court is advised that, notwithstanding the section 106A Order authorising a Registrar of the Court to execute documents on the husband’s behalf, that such documents, although presented to a Registrar, have not been signed, as the husband has an extant Application for stay. The Application for stay does not operate as a stay. The document should have been signed by the Registrar, although I accept, out of caution, they may well not have done so, not wishing to further complicate issues between the parties.

4. However, the husband’s Application for stay is now spent and dismissed.  Accordingly, the Registrar will be directed to forthwith and today execute those documents so that the wife might have the benefit of the funds to which she is entitled and as to which there has never been any controversy she would retain. The wife is entitled to the fruits of her litigation, particularly now appellate controversy[4] is spent.

   [4] Subject to any application the husband may make for special leave to apply to the High Court

5. The financial circumstances of the parties would lend some little support to an Order for costs, both as to justification and justice.  Whilst there is no dramatic difference between the parties as to their incomes, the husband is in a position which is somewhat analogous to that which would apply in the corporate domain, oppression of a minority shareholder. 

6. The husband has the control of all of the assets through his action or inaction and has exercised that control since the conclusion of these proceedings nearly five months ago, with the consequence that the wife has been entirely deprived of the fruits of her litigation.  It does not, of itself, warrant any Order for costs or departure from the general rule, but it is certainly a relevant consideration.

Whether a party is in receipt of legal aid

1. Neither is.

The conduct of the parties

1. This is a significant issue in this case.  It is connected with offers of settlement that are made. 

2. The submissions put on the wife’s behalf are set out in paragraphs 12 to 18 of the written submission.  The husband’s position with respect to conduct is set out in paragraphs 21 through to 53 of the written submission, portions of which I have already dealt with. 

3. The husband’s submissions are largely tangential, if not irrelevant, to the determination of conduct. It is resplendent with complaints regarding the wife’s suggested failure to make full and frank disclosure, an allegation that was addressed at hearing and found lacking merit.  It is resplendent with complaints attached to the earlier and apparently renewed applications for recusal, together with complaints with respect to the wife, her conduct and, more importantly, the suggested misconduct of the wife’s legal practitioners.  Again, I make abundantly clear, if it is not already clear from earlier judgments, there is simply no basis to those complaints.

4. The conduct that is relevant arose shortly after the first return date of these proceedings. The costs that are incurred in this matter do not relate purely to the determination of the substantive issues. They also relate to what is now, in total, four Applications in a Case by the husband. 

5. The first Application in a Case was brought connected with the suggested lack of compliance with an obligation of disclosure by the wife.  It was dealt with and Orders made varying trial directions.  The determination of that Application in a Case was the subject of the husband’s appeal and unsuccessful.  The complaint raised is unfounded.

6. The second Application in a Case by the husband related to recusal.  It has been addressed and canvassed and I do not propose to address the issue in detail, save to observe the husband’s complaints were found baseless, not only at first instance but on appeal. Thereafter, the husband chose to withdraw from the determination of the proceedings, refusing to participate if the trial judge did not recuse themselves.  Thus, the matter proceeded on an undefended basis, albeit the husband remained for some or all of that determination and the delivery of judgment. 

7. The husband has since filed two further Applications in a Case which he has effectively abandoned but which, in any event, are spent or incompetent and, in any event, dismissed.

8. All of that has inflated the wife’s costs. 

9. What is clear and apparent from the Affidavit material filed is that the husband has engaged in the very behaviour of which he accuses the wife’s legal representatives of, falsely and without basis – “playing hardball” - sending repeated emails, continuously harassing the wife’s legal representatives, using that term advisedly, with respect to their conduct, matters relating to the proceedings generally, and specifically relating to the two issues above. All of that has no doubt inflated the wife’s costs in these proceedings beyond that which would be incorporated in the scale, (schedule 1 and part 21 of the Federal Circuit Court Rules 2001 (Cth)).

10. The husband’s conduct in that regard would warrant an Order for costs.  Whether that departure is in the quantum sought by the wife, on a party/party or indemnity basis, need not be determined at this time, save to conclude that it gives some support to finding justification for departure and justice. 

11. The wife’s legal fees have been inflated by a number of factors relating to the husband’s conduct. The husband has been self-represented throughout these proceedings. He may have had some assistance from legal practitioners, qualified or otherwise, at different points in the proceedings, but he has always conducted his own affairs.  He has thus had the run of how he presents his case. That has been disadvantageous to the wife in that she has been required to meet myriad correspondence and applications which were simply unnecessary.

12. Secondly, the husband has no legal fees to meet in these proceedings whereas the wife does. It is not a matter of parity or sharing the cost between the parties. But in circumstances where the husband has, to some extent, passed on some of the cost he would have incurred in obtaining competent legal advice, passed on to both the Court - and thus the public - and the wife, through his conduct, it is relevant.  Those matters, as I have indicated, provide support for justification and justice of an Order for costs.

Whether proceedings are necessitated by the failure of a party to comply with a Court Order

1. This is not relevant, although one might well anticipate that this determination will not conclude this litigation, as it is likely that there will be further appellate controversy and/or applications for enforcement in light of the fact that the husband’s time for payment of a sum certain is now well and truly past.

Whether a party has been wholly unsuccessful

1. As was discussed in Davida & Davida (Costs) [2011] FamCAFC 61, the Court must be focused upon the legislative imperative; the lack of success of a party. The Court might also consider, however, if need be, by reference to subsection (g), such other matters as the Court considers relevant, including the relative success of the wife.

2. The wife has been wholly successful.  She has obtained the very relief she sought.  On the basis of the evidence that was filed in anticipation of the hearing, noting that the husband’s material was also read and considered for the purpose of that hearing, the relief that the wife sought was somewhat irresistible.  It is on that basis that I have already referred to my earlier comments in Peake & Benedict, quoted by the husband as supporting the contention that this litigation simply need not have occurred. The case should have resolved through lawyer-assisted negotiation, facilitated negotiation such as family dispute resolution or at the first return date of the proceedings. 

3. It is difficult to understand the position that the husband has agitated in the proceedings, noting that there was no controversy whatsoever that the wife had received a substantial inheritance.  The Application made by the husband, which would have affected a substantial adjustment in his favour, was never supportable on even the husband’s evidence.  He was, as it were, pursuing a case that was doomed to failure.  He may have been distracted by other factors alluded to in his submissions, his distress at the wife’s unilateral determination to leave the marriage and the like, but they are not relevant considerations at law.  Thus, the wife has been wholly successful. The husband has been wholly unsuccessful.  He has not obtained any relief that was sought by him.

4. Tragically, the husband, by his Response, made clear that he agreed to certain Orders that were proposed by the wife.  They were relatively noncontroversial Orders, although relating purely to the parties each retaining assets presently in their possession, custody and control.  The husband had proposed, as already alluded to, that the wife retain the funds held in the controlled monies account.  And yet, the husband has done nothing whatsoever to take any step to give effect to the release of those funds.  As already indicated, that speaks poorly to the husband’s credit.  It would suggest a degree of disingenuity.

5. The relative success and lack of success under subparagraphs (e) and (g) of section 117 both fundamentally support justice and an Order for costs, as well as the justification for departure from the general rule. Whether the accumulated matters in combination thus support the making of an Order for costs need not be determined, as there then remains the final consideration, whether an offer has been made in writing to settle the proceedings and the terms of the offer.

Offers

1. It is for this purpose that I have incorporated paragraph 109 from my earlier decision in Watton & Smart which substantially repeats, adopts and applies Murphy J’s decision in Lennon & Lennon (Costs). 

2. Prior to the commencement of these proceedings, the wife had, through her legal representatives, forwarded a “without prejudice save as to costs” (or Calderbank) offer to the husband.  The offer of settlement was an equal division of the assets of the parties as delineated in page 2 of that letter.

3. There is and never was during the proceedings controversy that the assets of the parties were as set out in that correspondence.  Thus, one could not argue that Mr Dishman was not in a position to respond appropriately to the offer until those controversies were quelled.  The wife’s proposal is prefaced in percentage terms.  Thus, even if there was any controversy as to the value of any of those assets, the offer was still capable of acceptance.  The offer was not expressed as conditional upon acceptance of values alleged, merely seeking to identify the pool of property and the rough value of assets, but ultimately proposing its equal division. 

4. What the wife obtained was certainly better than that which she offered.  The costs of the litigation, at least financially, has been borne solely by the wife as the husband has not, as already alluded to, retained legal counsel throughout the proceedings. Thus, he has not incurred fees.  The wife has.  They erode the fruits of her litigation.

5. The fees that the wife has incurred are modest.  There is much criticism, in many fora, of fees charged by legal practitioners.  However, the fees that are charged by the wife’s legal representatives in the conduct of this litigation are, as already observed, proportionate to the issues in dispute and reflect the skill and expertise of competent, qualified legal practitioners. Legal practitioners should not be other than well-remunerated as they bring a great service to the community.

6. Fundamentally, the offer of settlement that was put must be a significant basis for justification and the justice of an Order for costs, and certainly in combination with the balance of factors above, very much supports departure from the general rule and an Order for costs. 

7. As Murphy J had commented above, and particularly in reliance upon the Full Court’s decision in Browne & Green [2002] FamCA 791, significant weight ought normally be given to offers of settlement that are advantageous. If the husband had accepted the wife’s offer made before this litigation was even commenced, both parties would be at least as well off, on the wife’s case, bearing in mind that she has incurred legal fees and delay, and in the husband’s case, much better off.

8. That the husband may have chosen to be ill-informed or ill-advised as to the manner in which the Court would determine the proceedings is very much a matter for him.  It could not be suggested that the husband is not or was not in a position to obtain competent legal advice.  He has alluded, at various points in the proceedings, to having obtained advice from a variety of sources.  If that advice was not competent, he of course has a remedy available to him.  If it were, and he has simply chosen not to follow the advice – and the Court need not delve further into that issue, nor could the Court on the presently available evidence – then the prejudice which follows from the poor decision made by the husband to reject or fail to respond to that offer should not fall upon the wife.

9. I am satisfied by reference thereto that justification and justice are adequately made out to support a departure from the general rule that each party bears his or her own costs and thus that an order for costs should be made.

Basis for costs

1. There is then the issue of the basis upon which costs should be ordered. 

2. I am conscious of that which fell from the Full Court in Prantage & Prantage (Costs) [2014] FamCA 850 and the earlier determination by the Full Court in the same litigation of the factors that are relevant to indemnity costs. From the decision, I incorporate paragraphs 43 to 49:

   Indemnity costs

   43. When considering an application for costs to be assessed on an indemnity basis, I am guided by principles emanating from the following relevant authorities, which were conveniently summarised in Muldoon & Carlyle [2012] FamCAFC 135; (2012) FLC 93-513, where the Full Court said;

   115. It is beyond doubt that in order to justify an award of indemnity costs, it must be demonstrated that there are exceptional circumstances, such that the usual order for party-party costs should be departed from (Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536; (1993) 46 FCR 225; Kohan and Kohan (1993) FLC 92-340; Munday v Bowman (1997) FLC 92-784; Yunghanns & Ors v Yunghanns & Ors and Yunghanns [2000] FamCA 681; (2000) FLC 93-029; Limousin & Limousin (Costs)[2007] FamCA 1178; (2007) 38 Fam LR 478; Fennessy & Gregorian [2009] FamCAFC 44; (2009) FLC 93-399; D & D (Costs) (No 2) (2010) FLC 93-435, Stephens v Stephens and Anor [2010] FamCAFC 172; (2010) 44 Fam LR 117). As was said by the Full Court in Stephens (at [67]):

   An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages…

   116. In support of the application for indemnity costs, counsel pointed only to the fact that it was always apparent there was no merit in the appeal. This is in our view not an exceptional circumstance as would justify an order for indemnity costs.

   44. Similar sentiments were echoed by the Full Court when it allowed an appeal against the indemnity costs order made by Cronin J in earlier proceedings between the husband and the wife in this case. That decision is reported, in anonymised form, as  - disp8 Prantage & Prantage  - disp10 [2013] FamCAFC 105; (2013) FLC 93-544.There the Full Court emphasised that an indemnity costs order is an exception rather than the norm. However, the Full Court’s reasoning in - disp9 Prantage  - disp11 does not preclude the possibility of an order being made on an indemnity basis, in an appropriate case.

   45. In Kohan and Kohan (1993) FLC 92-340 the Full Court emphasised the need for the Court to be aware of the terms of any costs agreement in order to be able to assess the difference between party-party and indemnity costs. That requirement has now found its way into the Rules, at Rule 19.08.

   46. In compliance with Rule 19.08 the wife has provided the relevant costs agreement dated 20 July 2009. I note that the rates of charges may be reviewed in June each year. However, as it stands, the charges under the costs agreement are significantly higher than the fees provides for in Schedule 3 to the Rules. For instance, the costs agreement provides for time reasonably spent by a legal practitioner to be charged at $350 per hour as opposed to the $224.50 provided for in Schedule 3.

   47. The authorities set the bar at a fairly high level before indemnity costs will be ordered. However, the authorities do not prescribe that indemnity costs can never be ordered, and ultimately, it is a matter of an exercise of discretion in each case. Indeed, the Rules recognise the possibility of an order being made on an indemnity basis because of the requirements of Rule 19.08(3) and the provision of Rule 19.18(1)(b).

   48. In  Prantage & Prantage  [2013] FamCAFC 105; (2013) FLC 93-544, Thackray and Ryan JJ observed as follows;

   100. His Honour's statement, at [50], that Sheppard J's emphasis in Colgate-Palmolive was “on parties who must have or should have known their approach was simply imprudent” does not, in our view, accurately reflect the law as explained in Colgate-Palmolive and other cases dealing with indemnity costs.

   101. It is true, as the trial Judge noted, that Sheppard J included in the list of situations that might give rise to an order for indemnity costs “the imprudent refusal of an offer to compromise”. However, in our view, imprudence by a party in “their approach” is not sufficient to enliven the power to award indemnity costs.

   102. It is important in this context to recognise, as Lindgren J did in NMFM Property Pty Ltd v Citibank Ltd (No 2) [2001] FCA 480; (2001) 109 FCR 77 at [56], that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation”.

   103. Lindgren J went on to point out (original emphasis):

   Even in a proved case of fraud, for example, in my opinion the presumption is that a costs order against the fraudulent party will be on the party and party basis. The conduct of a party that is relevant to the issue of indemnity costs is the party's conduct as litigant. But, as noted below, the knowledge that a party has, including knowledge of his or her past conduct, may be relevant to an assessment of his or her conduct as litigant.

   49. The principle there enunciated has been picked up by s 117(2A)(c). It is the degree of the husband’s conduct which informs the exercise of discretion to order indemnity costs.

1. As is clear in the erudite discussion of the Full Court, before the Court would consider making an order for indemnity costs, rather than party/party costs, there would need to be demonstrated an exceptional circumstance such as to justify an order. 

2. Ultimately, as I have already alluded to, there is little if any difference between an order for party/party costs and an order for indemnity costs in these proceedings. That is so as, if one has regard to the scale of costs in Part 21 of the Federal Circuit Court Rules 2001 (Cth) and Schedule 1, the amount that would be arrived at by reference to that scale is not at all dissimilar, varying only modestly from that which is sought.

3. I am satisfied that the appropriate items from schedule 1 – and I propose to deal with the schedule in its present drafting, although there may well have been modest amendment to the event-based fees from the commencement of the proceedings to the present date – would provide the following:

   a)Initiating proceedings - $2,241 plus time at Court on the first return date. 

   b)On the first return date, 12 March 2019, the matter occupied approximately one half of the day.  Thus, by reference to item 13, an allowance of $1,120.

   c)There was then a further attendance, 18 June 2019, for the purpose of making trial directions.  That was a short attendance by reference to item 13 or $305. 

   d)There was then the first of four Applications in a Case filed by the husband.  The wife would be entitled to item 3 being $1,867 plus time at Court. 

   e)Time at Court on 12 August 2019 occupied what would be beyond a short mention and would thus be appropriately classified as a half-day attendance which by item 13 is $1,120.

   f)There is then the hearing preparation.  Item 6, as a one-day hearing, would allow $4,775. 

   g)However, I am satisfied that there should be an adjustment thereto on the basis of the husband’s conduct, which has inflated the wife’s costs.  She has not simply had to prepare her case for hearing.  She and legal representatives have had to deal with and deflect myriad correspondence, phone calls and the like.  Accordingly, I propose to allow a further 50 per cent in addition, an additional $2,387.50.

   h)There is then a second Application in a Case by Mr Dishman, although it was listed to the first day of hearing.  Accordingly, there would be no allowance for time but there would be an allowance per item 3, as it was necessary for the wife’s legal practitioners to obtain instructions and prepare.  Thus, an amount of $1,867.

   i)There is then the hearing itself.  This is a vexed issue.  Counsel was retained, although items 13 and 14 of the schedule do not make any specific allowance for counsel.  The allowance that is made is on a daily hearing rate. I am not satisfied that the rules are intended to regulate the fees charged by counsel, nor should they. However, it does lead to the difficulty that the allowance made under that item does not include counsel. It might be possible to classify counsel as a “disbursement”, although I would be loath to do so.  The skills of competent counsel are far more valuable to the community and individual litigants than photocopying and such other items as are included.

4. But, of course, part 21 of the Federal Circuit Court Rules2001 (Cth) is not prescriptive. It is necessary to consider the scale, and the scale is intended, event-based as it is, to signal to litigants the quantum of costs that they might expect would be ordered if a costs order were ultimately made.

5. I propose to proceed on the basis, however, of the items 13 and 12, a full day attendance, as counsel is briefed for the day:  $2,241, together with an advocacy loading, item 12, of $1,120.50, being 50 per cent of the daily hearing fee. 

6. To the extent necessary, I certify as to counsel.

7. I will then also make a further broad and non-quantified adjustment to allow for counsel’s fees and the reality that instructing solicitors appeared to instruct counsel.  That is entirely appropriate, indeed, best practice.  Counsel is retained by the legal practitioner, not the client.  Accordingly, legal practitioners should, save with the agreement of both client and counsel and in exceptional circumstances, appear to instruct at hearing.

8. There is then the third Application in a Case by Mr Dishman, listed to the February date and again today.  Preparation is allowable under item 3 at $1,867.  As all applications are dealt with on the same day, I do not propose to make any specific allowance as to time.

9. There is then the fourth Application in a Case and another $1,867 but, again, with no allowances to time. 

10. There is the costs Application itself, which I am satisfied should also, in light of the work required, the filing of material and submissions, attract an allowance under item 3 of $1,867.

11. There is the appearance on 7 February, certainly, by item 13, a short appearance of $305. 

12. There is today’s appearance, a half-day attendance.  Thus, by reference to item 13, $1,120. 

13. I am satisfied that an advocacy allowance should be permitted with respect to today’s appearance, a further $560.

14. The parties attended private Family Dispute Resolution as ordered by the Court.  Thus, item 5 would apply -$1,867, together with the disbursement incurred in payment of one half of the Family Dispute Resolution fees being $1,100. 

15. There is then unspecified photocopying, filing fees, ($350 with respect to the Initiating Application, the setting-down fee with respect to the hearing - $640.  All of those – the fees paid to the court alone are $990 plus whatever has been incurred by other allowable disbursement by reference to the schedule, are properly recoverable.

16. If one is to add up those amounts, they amount to $30,586.50, without allowances for any other disbursements, which again would include photocopying, Land Titles Office fees and similar out-of-pocket expenses.  There would be no reason to assume that they would be insubstantial. 

17. There is then also the vexed issue of counsel’s fees, which certainly exceed that which would be provided by items 12 and 13. I am satisfied that a further allowance must be made as a departure from Part 21 of the Federal Circuit Court Rules 2001 (Cth) to accommodate that additional expense. It was incurred in reality and it is a legitimate and appropriate party/party expense.

18. If all of those adjustments and allowances were made, they would only need to total about $4,400 before the amount that is sought on an indemnity basis is arrived at. 

19. Accordingly, and for that reason, I have expressed throughout that the costs incurred by the wife, in reality, and the costs that would be allowable on a party/party basis by reference to the scale, are not dissimilar, if different at all.

20. For those reasons, I make clear that I am satisfied that an exceptional circumstance would in all probability be available to justify indemnity costs in light of the husband’s conduct, his rejection of a perfectly reasonable offer of settlement which simply should have been accepted by any prudent and adequately-advised litigant and which would result in an Order for indemnity costs.  However, I need not express it as such. 

21. The wife’s party/party costs, by reference to the above calculations, approach if not equal the amount that is, in fact, sought, and it is far from a long stretch to accept that it would be an appropriate allowance. 

22. For those reasons, I am satisfied that Orders can and should be made as follows.

I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date:  31 March 2020

[2] (Peake & Benedict)