Goodridge & Beadle (No 2) - [2019] FamCA 786

FAMILY COURT OF AUSTRALIA

GOODRIDGE & BEADLE (NO. 2)

[2019] FamCA 786

FAMILY LAW – COSTS – application for indemnity costs against a bankrupt and a person of straw – relevant principles canvassed – application for costs against non-parties – liability for costs to be paid by a solicitor for a party – relevant principles canvassed.

FAMILY LAW – INDEMNITY COSTS – relevant principles.

Australian Passports Act 2005 (Cth), s 9A(d)
Bankruptcy Act 1966 (Cth), s 60
Family Law Act 1975 (Cth), ss 117
Supreme Court of Queensland Act 1991 (Qld), s 58
Rules of the Supreme Court of Queensland (Qld), order 9, r 1

Addison & Leahy [2008] FamCA 248
Aider Shipping Co Ltd v Interbulk Ltd (The Vimeira (No 2)) [1986] AC 965
Andrews v Barnes (1888) 39 Ch D 133
Anison v Anison (2019) 59 Fam LR 581
Australian Guarantee Corporation Ltd v De Jager [1984] VR 483
Bischof v Adams [1992] 2 VR 198
Brott v Grey [2000] FCA 1836
Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203
C.E. Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd [1995] VSC 473
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Queensland) Pty Ltd (1993) 45 FCR 224
Cassidy & Murray (1995) 19 Fam LR 492
Christie v Christie (1873) LR 8 Ch App 499
Colgate–Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collins and Collins (1985) 9 Fam LR 1123
Corporation of Burford v Lenthall (1743) 26 ER 731
Cummings v Lewis & Ors (1993) 41 FCR 559
Degman Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish (2005) 33 Fam LR 123
Forester v Read (1870) LR 6 Ch App 40
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202
Garnet v Bradley (1878) 3 AC 944
Goodridge & Beadle and Ors [2019] FamCA 709
Gordon & Gordon(No. 2) [2018] FCCA 1617
Gordon & Gordon [2017] FCCA 2899
Greedy & Greedy (1982) 8 Fam LR 669
Horne (in his capacity as trustee of the Bankrupt Estate of Narain) v Narain [2017] FCCA 1190
Howes v Barber (1852) 18 QB 588
Hughes v Western Australian Cricket Association Inc (1986) ATPR 40-748
In re Gardiner; ex parte Orgill (1890) 16 VLR 641
In the Marriage of Anstis (1999) 26 Fam LR 548
In the Marriage of Jachimowicz (1986) 10 Fam LR 566
In the Marriage of Kohan (1992) 16 Fam LR 245
In the Marriage of Oriolo & Oriolo (1985) 10 Fam LR 665
In the Marriage of Pagliarella (No 3) (1994) 122 FLR 445
In the Marriage ofRobinson and Higginbotham (1991) 14 Fam LR 559
In the Marriage of S (1997) 22 Fam LR 112
In the Marriage of Tuck (1979) 7 Fam LR 492
Jones v Coxeter (1742) 26 ER 642
Knight v F.P. Special Assets Ltd (1992) 174 CLR 178
Latoudis v Casey (1990) 170 CLR 534
Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300
M & D; Australian Capital Territory (1995) FLC 92-584
Mansfield & Mansfield [2019] FamCAFC 186
McAlpin & McAlpin (1993) 16 Fam LR 888
Medcalf v Mardell [2003] 1 AC 120
Medlon & Medlon (No 6) (2015) 54 Fam LR 1
Mordue v Palmer (1870) LR 6 Ch App 22
Myers v Elman [1940] AC 282
Najjar v Haines (1991) 25 NSWLR 224
Nine Films and Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046
Penfold v Penfold (1980) 144 CLR 311
Re Principal Strategic Options Pty Ltd; Coshott v Coshott [2001] FCA 664
Re Sturmer and Town of Beaverton (1912) 25 OLR 566, 572
Re Z (No 4) (Family Court of Australia, Full Court, 6 March 1997, unreported)
Ridehalgh v Horsefield [1994] 3 ALL ER 848
Scherer v Counting Instruments Ltd [1986] 1 WLR 615
Separate Representative v JHE and GAW (1993) 16 Fam LR 485
Stephens v Stephens (Enforcement) (Costs) (2010) 44 Fam LR 117
Symphony Group PLC v Hodgson [1994] QB 179
Vestris v Cashman (1998) 72 SASR 449
Wentworth v Attorney-General (1984) 154 CLR 518
Wentworth v Wentworth (1999) 46 NSWLR 300
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 29 ACSR 21
Yeo & Rambaldi (As Trustees of The Bankrupt Estate of Arifovic) v Arifovic [2017] FCCA 1189
Yunghannsv Yunghanns (2000) 26 Fam LR 331
Z (a solicitor) & Limousin [2010] FamCAFC 59

APPLICANT:

Mr Goodridge

RESPONDENT:

Ms Beadle

SECOND RESPONDENT:

The Trustee of the Property of Mr Goodridge (A Bankrupt)

THIRD RESPONDENT:

Mr Celan and Mr Handke In Their Capacity as Joint and Several Liquidators of J Pty Ltd (In Liquidation)

INTERESTED PARTY:

Ms Goodridge

FILE NUMBER:

MLC

10573

2015

DATE DELIVERED:

30 October 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

BY WAY OF WRITTEN SUBMISSIONS :

25 October 2019

SUBMISSIONS RECEIVED FROM

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Blackwood Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Not applicable

SOLICITOR FOR THE FIRST RESPONDENT:

Berry Family Law

COUNSEL FOR THE SECOND RESPONDENT:

Not applicable

SOLICITOR FOR THE SECOND RESPONDENT:

Wisewould Mahony Lawyers

COUNSEL FOR THE THIRD RESPONDENT:

Not applicable

SOLICITOR FOR THE THIRD RESPONDENT:

Mills Oakley Lawyers

COUNSEL FOR THE INTERESTED PARTY:

Not applicable

SOLICITOR FOR THE INTERESTED PARTY:

Kennedy Partners Lawyers

Order

The first respondent’s costs of and incidental to the stay application the subject of my determination at [2019] FamCA 709 are to be paid by Mr Goodridge and Ms Goodridge or one or other of them on an indemnity basis in the fixed sum of $33 943.35, such sum to be paid within 30 days.

Direction

The application by the first respondent for an order that the solicitors for Mr Goodridge and Ms Goodridge to be jointly and severally liable for the payment of the indemnity costs order made in paragraph 1 hereof is to be heard on 8 January 2020 at 10am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Goodridge & Beadle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10573 of 2015

Mr Goodridge

Applicant

And

Ms Beadle

Respondent

And

The Trustee of the property of Mr Goodridge (A Bankrupt)

Second Respondent

And

Mr Celan and Mr Handke in their capacity as Joint and Several Liquidators of J Pty Ltd (In Liquidation)

Third Respondent

And

Ms Goodridge

Interested Party

REASONS FOR JUDGMENT

Introduction

After handing down my reason for judgment on 11 October 2019 in this proceeding,[1] Mr Williams of counsel for Ms Beadle applied for an order that his client’s costs be paid by another party to this litigation. I granted liberty to any party to file written submissions in relation to costs, requiring filing of submissions by 4pm on 18 October 2019. Only Ms Beadle filed submissions seeking her costs within time. Mr and Ms Goodridge were granted an extension of time to file written submissions as to costs by agreement.
[1]Goodridge & Beadle [2019] FamCA 709
Before addressing the merits of the costs application, it is relevant to record that Ms Beadle sought an order for costs on several alternative bases. They were as follows –
a)against the applicant and Blackwood Family Lawyers jointly and severally as to 50%;
b)against the interested party and Kennedy Partners jointly and severally as to 50%;
c)on an indemnity basis fixed in the sum of $33 943.35;
d)alternatively, on a party/party basis pursuant to the Family Law Rules fixed in the sum of $20 009.70;
e)alternatively in such sum as the court deems fit; and
f)payable within 30 days.
Ms Beadle’s total costs levied by her solicitors and counsel referrable to the application on which I ruled in the judgment dated 11 October 2019 amounted to $33 943.35.
Each of Mr Goodridge and Ms Goodridge provided written submissions although the trustee-in-bankruptcy, the liquidator and the independent children’s lawyer did not.

Synopsis

For the reasons that follow, in my view it is appropriate to make a costs order on an indemnity basis.

Relevant factual setting

In my reasons for judgment handed down on 11 October 2019, I narrated the factual context in which the examination order was made on 15 July 2019. The stay application for which counsel for Mr and Ms Goodridge advocated was wholly unsuccessful as that phrase has been construed in Anison v Anison.[2] The fact that the application failed does not, in and of itself, render the unsuccessful party amenable to a costs order because s 117(1) creates a prima facie position that each party will bear his, her or its own costs. Section 117(2) permits a court to make a costs order against a party in the circumstances there set out, namely, where “the court is of opinion that there are circumstances that justify it doing so”. Where so satisfied, s 117(2A) lists the matters that the court must take into account when ordering costs on a basis other than that prescribed by s 117(1).
[2] (2019) 59 Fam LR 581
It is relevant to observe at this juncture that the applicant is an undischarged bankrupt whereas his wife is not. It is also relevant to point up that to date, the trustee-in-bankruptcy of the applicant has not made his election under s 60(2) of the Bankruptcy Act, as canvassed in my reasons handed down on 11 October 2019. Further, the liquidators have not taken part in the examinations and Ms Catherine Gobbo of counsel has appeared since December 2017 out of courtesy to the court, for which I thank her.
On behalf of Ms Beadle, application was made for a costs order to be made against the solicitors for the applicant as well as against the solicitors for Ms Goodridge. No doubt that was because –
g)the applicant is bankrupt and Ms Goodridge’s financial circumstances are likewise straitened;
h)the solicitors who represented the applicant at trial had prepared the stay application despite the presence of the solicitors for the trustee-in-bankruptcy;
i)the solicitors for the interested party (Ms Goodridge) prepared her own stay application and briefed separate counsel to argue the stay application despite the seemingly comparable nature of the factual, evidentiary and legal positions of Mr and Ms Goodridge, aside from Mr Goodridge’s bankruptcy; and
j)the solicitors for each of Mr Goodridge and Ms Goodridge had obligations and responsibilities about which they needed to be satisfied before filing and pressing the stay application.
Some issues relevant to costs arose from the reasons handed down on 11 October 2019. In no special order, they included –
a)Ms Goodridge admitted to receiving a substantial amount of money subsequent to the date on which the liquidators were appointed;
b)she has applied those funds for personal use;
c)those funds may have been derived from the sale of livestock of which the liquidators were the lawful owners;
d)it is conceivable, although the proposition has not yet been determined, that Mr Goodridge was the lawful owner of a number of livestock that have been sold since the presentation of the applicant’s own petition in bankruptcy;
e)if Mr Goodridge was the lawful owner of any livestock sold since the appointment of Mr Goodridge’s trustee-in-bankruptcy then at first blush the trustee-in-bankruptcy was entitled to receive the proceeds of sale of those livestock, not Ms Goodridge;
f)the involvement of the stock and station agent Mr M may have been questionable;
g)the examinations were being conducted for the legitimate pursuit of the recovery of money that may form part of the property that falls for division in this case; and
h)Mr Goodridge and Ms Goodridge had a pivotal role in the sale of livestock subsequent to the appointment of the liquidator and the trustee-in-bankruptcy.
In making those observations I recognise that the trustee-in-bankruptcy has not yet declared that the livestock unaccounted for are vested property in the bankruptcy. A debate will inevitably follow at some stage about the legal ownership in (and therefore legal title to) the livestock.
The legal representatives for the first respondent contended that Ms Goodridge failed to comply with orders for the production of documents made on 5 June and 15 July 2019. That was true. They also contended that the applicant failed to produce documents in accordance with orders made on 15 July 2019 as well as failing to meet her discovery obligations on an ongoing basis. They also contended that the applicant and his solicitor did not seek the consent of the trustee-in-bankruptcy before bringing the stay application.
The first respondent’s legal representatives contended that the first respondent had been put to considerable expense in relation to the hearing on 1 October 2019. They argued –
a)in bringing their applications for a stay Mr and Ms Goodridge were represented at the highest level by highly regarded and experienced solicitors and counsel with substantial expertise in the family law jurisdiction;
b)the stay applications were without merit and were brought in an opportunistic attempt to delay this litigation so as to avoid the proper examination of witnesses;
c)the separate legal representatives for Mr Goodridge and Ms Goodridge ought to have known that the stay applications brought on behalf of their clients were doomed and were without merit;
d)the separate legal representatives for Mr Goodridge and for Ms Goodridge should have advised their clients not to proceed with the stay applications;
e)if those legal representatives for Mr Goodridge and for Ms Goodridge had advised their clients that their clients should not proceed with the stay applications and their clients instructed them to nevertheless proceed with the stay applications, then the solicitors should have ceased acting for Mr Goodridge and Ms Goodridge;
f)Mr Goodridge as well as Ms Goodridge were impecunious litigants with no capacity to meet a costs order, a fact known to their respective solicitors yet their solicitors knew or ought to have known that by bringing the stay application, irrespective of the marginal prospects of success they may have enjoyed when issued, Ms Beadle would be put to significant costs in opposing those applications; and
g)such conduct by the solicitors for Mr Goodridge and separately by the solicitors for Ms Goodridge was an abuse of process warranting the imposition of a costs order against those solicitors.

Costs orders in family law litigation

As with any power conferred by statute, the starting point in any consideration of the exercise of that power is the source of the power under the relevant statutory provision. So much was the subject of judicial pronouncement by the High Court in Penfold v Penfold[3] in reference to s 117 of the Family Law Act, albeit in terms different to its current iteration. The essential characteristic of s 117(2) has been preserved in the current iteration of s 117(2) in that the court may make such order as to costs it considers just if the court is of opinion in a particular case that there are circumstances that justify it doing so. The High Court held that the provisions of s 117(1) to the effect that each party to a proceeding under the Family Law Act shall bear his or her own costs must yield to s 117(2) whenever a judge finds that there are circumstances which justify the making of an order for costs. The plurality of the court further held that an applicant for costs has to establish no more than the existence of circumstances justifying the making of the order and the applicant for costs bears no onus to show that it is a clear case for an order for costs.
[3] (1980) 144 CLR 311
By 1981 the Family Court recognised the existence of a wide discretion in relation to orders for costs. So much was held in In the Marriage of Tuck.[4] The following year similar observations were made in Greedy & Greedy.[5] In In the Marriage of Oriolo & Oriolo[6] the Full Court (Emery, Fogarty & Murray JJ) pronounced on point to similar affect.
[4] (1979) 7 Fam LR 492
[5] (1982) 8 Fam LR 669
[6] (1985) 10 Fam LR 665
In this case the first respondent sought a costs order against two firms of solicitors neither of which was a party to this litigation. Neither firm of solicitors has been heard on whether a costs order should be made against that firm.
The history of the making of costs orders at common law from the 1700s commencing with the judgment of Lord Blackburn in Garnet v Bradley[7] was surveyed by the plurality of the High Court in Knight v F.P. Special Assets Ltd.[8] There, the High Court contrasted the position at common law in respect of costs orders with the position in equity, observing that in equity, costs orders were wholly discretionary, citing Jones v Coxeter[9] and that courts of equity exercised a wide discretion not only as to the circumstances under which costs orders were awarded but also as to the nature and extent of the costs as was held in Andrews v Barnes.[10] The decision of the High Court in Knight addressed the provisions of s 58 of the Supreme Court of Queensland Act, in terms quite different to s 117 of the Family Law Act. In that case the court was also concerned with order 91 rule 1 of the Rules of the Supreme Court of Queensland which gave a wide discretion to the court in the making of a costs order and which, so the court held, was not limited to the making of a costs order only against the parties to the proceeding. Importantly for present purposes, the plurality held that where a party to litigation is an insolvent person or a man of straw, a non-party which has played an active part in the conduct of the litigation and which has an interest in the subject of the litigation is liable to have a costs order made against him if the interests of justice require such an order to be made.
[7] (1878) 3 AC 944
[8] (1992) 174 CLR 178
[9] (1742) 26 ER 642
[10] (1888) 39 Ch D 133
No doubt the application for a costs order against the two firms of solicitors representing Mr and Ms Goodridge was underpinned by a long and strong line of authority which canvassed the jurisdiction to make a costs order against a non-party who was the real party to the litigation. In that category of case was In re Gardiner; ex parte Orgill,[11] a case concerning a solicitor who commenced a case without authority or cases concerning a relator in a relator action by the Attorney General as was canvassed in Wentworth v Attorney-General.[12] Cases involving costs orders against non-parties, especially solicitors, are not grounded in an exercise by the court of the court’s disciplinary powers, but rather they are grounded in the power to make orders against the “real parties” to litigation, as Mason CJ, Deane and Gaudron JJ held in Knight.[13] In Burns Philp & Co Ltd v Bhagat[14] Brooking J of the Supreme Court of Victoria in his customary erudition surveyed the learning on the making of costs orders against non-parties. It is useful to record the distillation on principle by Mason CJ, Deane and Gaudron JJ in Knight as follows –
Having regard to the variety and the nature of the circumstances in which an order for costs was made against a person who was not a party according to the record, we cannot accept that there was before the Judicature Acts a general rule that there was no jurisdiction to order costs against a non-party in the strict sense. It is plain enough that the courts from time to time awarded cost against a person who, not being a party on the record, was considered to be the “real party”. It may be that these cases are capable of being explained on various grounds, including the ground that the non-party ordered to pay costs was guilty of abuse of process, taking a very broad view of what constitutes an abuse of process, but to say that does not deny that there was jurisdiction to make an order for costs against a non-party even if the jurisdiction was exercised in limited circumstances only.
[11] (1890) 16 VLR 641
[12] (1984) 154 CLR 518
[13] Knight v F.P. Special Assets Ltd (1992) 174 CLR 178, [188]
[14] [1993] 1 VR 203

Applying limitations to the breadth of the statutory jurisdiction in relation to an award of costs was denounced by the House of Lords in Aider Shipping Co Ltd v Interbulk Ltd (The Vimeira (No 2)).[15] Lord Goff of Chieveley rejected the imposition of any implied limitation arising from the word “party” in costs legislation because the broad terms of the statute are not so limited with the consequence that a costs order can be made against a solicitor, a relator in a relator action or against a next friend.
[15] [1986] AC 965
In Knight, Dawson J preferred the views of Middleton J in the Canadian case of Re Sturmer and Town of Beaverton[16] where Middleton J held as follows –
And the Court always had power to award costs against the real applicant when the motion was made by him in the name of a man of straw for the purpose of avoiding liability. The Courts were never so blind as to be unable to see through the flimsy device nor so impotent as to be unable to act.
[16] (1912) 25 OLR 566, 572
In the family law jurisdiction it was once held by a particular full court (Collins and Collins[17]) that as a general rule, a person who is not a party to the proceeding cannot be ordered to pay costs. Even in 1985 no such general rule existed as was exposed by the scholarly treatment of the point in Knight. However, in the slightly later Full Court decision in McAlpin & McAlpin,[18] Nicolson CJ and Maxwell J held that no such rule of law existed and that s 117(2) and s 117(2A) of the Family Law Act, which admittedly refers to “parties” is expressed in the widest possible terms and no reason existed to confine the jurisdiction of the Family Court of Australia in this area.
[17] (1985) 9 Fam LR 1123
[18] (1993) 16 Fam LR 888
Sitting as a single judge of this court, Hannon J in In the Marriage of Pagliarella (No 3)[19] applied the High Court’s decision in Knight as well as the Full Court’s decision in McAlpin plus the decision of Gobbo J in Bischof v Adams,[20] Brooking J’s decision in Bhagat, as well as the House of Lords’ in Aiden, holding as follows –
It can now be taken as clear law that this Court has jurisdiction to make an order for costs against a non-party at least if that person play an active part in the litigation and has an interest in the subject of the litigation. I do not see that there is any justification for exempting the Commission from the application of this principle.
It seems to me further, that the principle should not be limited to substantive proceedings but is also applicable to interlocutory proceedings and other applications, such as application for costs, which arise out of or are related to the substantive proceedings.
[19] (1994) 122 FLR 445
[20] [1992] 2 VR 198
Hannon J did not mention the decision of Asche & Pawley JJ in In the Marriage of Jachimowicz[21] where a costs order was made against a solicitor personally.
[21] (1986) 10 Fam LR 566
The decision of Nicholson CJ and Fogarty J in Separate Representative v JHE and GAW[22] affirmed the proposition that the power in s 117(2) is not confined to a “party” as is s 117(1) and that subsection (2) grants a wide general power to make an order as to courts. In Cassidy & Murray[23] the Full Court (Fogarty, Kay & Hase JJ) applied a comparable construction to s 117(2). There, the Full Court applied the decision of the High Court in Knight as well as the decision of the Full Court of the Federal Court in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Queensland) Pty Ltd[24] and held as follows –
In light of those decisions, and the decisions of the Family Court to which we shall refer shortly, in our view it is now settled law that power to award costs against solicitors in proceedings is contained in s 117(2) of the Family Law Act, which provides:
If any proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and the Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2) is in broad terms. It does not define the persons against whom, or to whom, the court may award costs.
[22] (1993) 16 Fam LR 485
[23] (1995) 19 Fam LR 492
[24](1993) 45 FCR 224
In Cassidy the Full Court addressed the circumstances in which an order for costs may be made against a solicitor. The court cited observations of Sir Thomas Bingham MR (as Baron Bingham of Cornhill then was) in Ridehalgh v Horsefield.[25] There, the Master of the Rolls identified the seemingly contradictory public interests confronting a court when considering making a costs order against solicitors. The first is the public policy of solicitors not being deterred from pursing their client’s interests by fear of incurring person liability to their client’s opponents; that they should not be penalised by orders to pay costs without a fair opportunity to defend themselves; that wasted costs orders should not become a back door means of recovering costs not otherwise recoverable against the legally aided or impoverished litigants; and that the remedy should not grow unchecked to become more damaging than the disease. The second public interest was that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponent’s lawyers. Sir Thomas Bingham MR said that full weight must be given to the first public interest but the wasted costs jurisdiction must not be emasculated.
[25] [1994] 3 ALL ER 848
When referring to the “wasted costs jurisdiction”, Sir Thomas Bingham MR was invoking the principles adumbrated in the decision of the House of Lords in Myers v Elman.[26] That decision stood for five propositions, namely –
(1) The court’s jurisdiction to make a wasted costs order against a solicitor is quite distinct from the disciplinary jurisdiction exercised over solicitors.
(2) Whereas a disciplinary order against a solicitor requires a finding that he has been personally guilty of serious professional misconduct, the making of a wasted costs order does not.
(3) The court’s jurisdiction to make a wasted costs order against a colicitor is founded on breach of the duty owed by the solicitor to the court to perform his duty as an officer of the court in promoting within his own sphere the course of justice
(4) To show a breach of that duty it is not necessary to establish dishonesty, criminal conduct, personal obliquity or behaviour such as would warrant striking a solicitor off the roll. While a mere mistake or error of judgment would not justify an order, misconduct, default or even negligence is enough if the negligence is serious or gross.
(5) The jurisdiction is compensatory and not merely punitive.
[26] [1940] AC 282
When translated to the arena of family law, the plurality in Cassidy identified six propositions, not five as emerged from Myers v Elman. Those six propositions were as follows –
Whereas some of the cases say that there must be “a serious dereliction of duty” by the solicitor before a costs order can be made against the solicitor, in our view the matters identified by the Master of the Rolls in Ridehalgh v Horsefield accurately reflect the law, which, in its application to this jurisdiction, can be set out as follows:
1. Pursuant to s 117(2) Family Law Act, the court has jurisdiction to make an order for costs against a solicitor or non-party.
2. The court should not make such an order without giving the person to be affected by the order an opportunity to be heard.
3. The court may make an order for costs against a solicitor without the necessity to established that the solicitor has been guilty of serious professional misconduct.
4. The solicitor has a duty to the court to promote the interests of justice whilst at the same time attending to the needs of the solicitor’s client.
5. A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default or negligence, any of which are found by a court to be of a serious nature, may be sufficient to justify an order.
6. The jurisdiction is compensatory.
Of course, in the usual course of events in the conduct of adversarial litigation a client will seek advice from a solicitor about a course of conduct or tactics that are legitimately open to be pursued by that client. Not all such courses are gainsaid of success. Some applications are arguable while others are barely arguable and others still are not arguable. Applications in the first two categories are property brought in which case costs are unlikely to be imposed on a party’s solicitor. Yet applications that are not arguable or which are brought, for example, to deliberately deplete the financial reserves of the other party, will probably attract adverse costs consequences. In Cassidy, the position of costs being appropriately ordered against parties rather than their solicitors was recorded in the following terms –
Almost any act done by a solicitor in connection with proceedings gives rise to costs, which are generally to be borne by one, some or all of the parties to proceedings – that is expected by parties who engage solicitors. Where those costs are appropriately incurred in the performance of a solicitor’s responsibilities, the solicitor cannot fairly be called upon to meet them.
Former Chief Justice Nicholson’s contribution to the jurisprudence in this field was not limited to this Honour’s writings in In the Marriage of McAlpin. As a single judge his Honour applied the observations of McAlpin in In the Marriage of S[27] ordering costs against a non-party. His Honour’s review of the authorities was scholarly, if I may say so with the greatest respect. His Honours analysis commenced with the decision of the Full Court, later jettisoned for error, in Collins where it was held that a person who was not a party to a proceeding cannot be ordered to pay the costs of that proceeding. It seemed that in In the Marriage of S all counsel conceded that Collins was wrong in view of the decisions of various jurisdictions (all which have been surveyed by me in the foregoing passages) in Aiden, Burns, Knight, and Pagliarella. Nicholson CJ also mentioned the then unreported decision of the Full Court in Re Z (No 4)[28] in which Nicholson CJ and Frederico J endorsed Hannon J’s observations in Pagliarella and those of Gobbo J in Bischof, yet rejected Murray J’s reasons in M & D; Australian Capital Territory.[29]
[27] (1997) 22 Fam LR 112
[28] (Family Court of Australia, Full Court, 6 March 1997, unreported)
[29] (1995) FLC 92-584
Costs were awarded against a solicitor personally in In the Marriage of Anstis.[30] There a solicitor failed to return the husband’s passport to which the husband was lawfully entitled, which conduct Mullane J described as unlawful for being contrary to s 9A(d) of the Passports Act. Solicitors in that case also failed to properly advise the wife that she needed separate representation. On the particular facts of that case the conduct of the solicitor in failing to return the passport was described by Mullane J as equating to improper and unreasonable conduct as well as misconduct. Only the decision in Cassidy & Cassidy was cited in support, however.
[30] (1999) 26 Fam LR 548
There is authority to the effect that a costs order against a non-party should be approached with caution. The authorities were surveyed by the Full Court in Yunghannsv Yunghanns.[31] There, the plurality of the court (Lindermayer & Holden JJ) referred to the decision of Santow J of the Supreme Court of New South Wales in Wentworth v Wentworth,[32] the decision of Batt J of the Supreme Court of Victoria in C.E. Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd,[33] the decision of the Queen’s Bench Division of the High Court of Judicature in Symphony Group PLC v Hodgson,[34] the decision of the Court of Appeal of the Supreme Court of New South Wales in Najjar v Haines[35] and to the decision of the Supreme Court of South Australia in Vestris v Cashman.[36]
[31] (2000) 26 Fam LR 331
[32] (1999) 46 NSWLR 300
[33] [1995] VSC 473
[34] [1994] QB 179
[35] (1991) 25 NSWLR 224
[36] (1998) 72 SASR 449
The Full Court in Yunghanns emphasised the need to demonstrate a causal connection between the ordering of costs and the non-party.
Another illustration of a costs order being made against a solicitor arose in Z (a solicitor) & Limousin.[37] There, the Full Court relied on the decision of the Court of Appeal of the Supreme Court of New South Wales in Lemoto v Able Technical Pty Ltd[38] in which McColl JA comprehensively examined the authorities that dealt with costs orders when made against legal practitioners. It is useful to record the distillation of principle given by McColl JA as follows –
[37] [2010] FamCAFC 59
[38] (2005) 63 NSWLR 300
Having noted that in Wentworth v Rogers[1999] NSWCA 403 the NSW Court of Appeal concluded there was no difference in substance to the approach taken in England and NSW, McColl JA summarised, at paragraph 92, the applicable principles as follows:
The new Div 5C should be construed against the background of the following principles which can be gleaned from the English and Australian authorities which have considered the power to order legal practitioners to pay the costs of proceedings in which they have represented parties:
(a)The jurisdiction to order a legal practitioner to pay the costs of legal proceedings in respect of which he or she provided legal services must be exercised ‘with care and discretion and only in clear cases’: Ridehalgh (at 229); Re Bendeich (No 2)[1994] FCA 1504; (1994) 53 FCR 422; Deputy Commissioner of Taxation v Levick[1999] FCA 1580; (1999) 168 ALR 383 at 389 [11]; [1999] FCA 1580; 43 ATR 621 at 627 [11], per Hill J; Levick v Commissioner of Taxation[2000] FCA 674; (2000) 102 FCR 155 at 166 [44]; Gitsham v Suncorp Metway Insurance Ltd[2002] QCA 416 at [8], per White J (with whom Davies JA and Williams JA agreed); De Sousa v Minister for Immigration, Local Government and Ethnic Affairs[1993] FCA 146; (1993) 41 FCR 544; Money Tree Management Services Pty Ltd and Institute of Taxation Research v Deputy Commissioner of Taxation (No 3) [2000] SASC 286; (2000) 45 ATR 262;
(b)A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence which is plainly doomed to fail: Ridehalgh (at 233); Medcalf v Mardell[2002] UKHL 27; [2003] 1 AC 120 at 143 [56], per Lord Hobhouse of Woodborough; White Industries (Qld) Pty Ltd v Flower& Hart (a firm)[1998] FCA 806; (1998) 156 ALR 169; 29 ACSR 21 (affirmed on appeal; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd[1999] FCA 773; (1999) 87 FCR 134); Levick v Commissioner of Taxation; cf Steindl Nominees Pty Ltd v Laghaifar[2003] QCA 157; [2003] 2 Qd R 683;
(c)the legal practitioner is not ‘the judge of the credibility of the witnesses or of the validity of the arguments’: Tombling v Universal Bulb Co Ltd[1951] 2 TLR 289 at 297; [1951] WN 247 at 238; the legal practitioner is not “the ultimate judge, and if he reasonably decides to believe his client, criticism cannot be directed to him”: Myers v Elman (at 304) per Lord Atkin; Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation[2001] HCA 32; (2001) 179 ALR 406 at 413 [34]; [2001] HCA 32; 47 ATR 1 at 8 [34], per Callinan J;
(d)A judge considering making a wasted costs order arising out of an advocate’s conduct of court proceedings must make full allowance for the exigencies of acting in that environment; only when, with all allowances made, a legal practitioner's conduct of court proceedings is quite plainly unjustifiable can it be appropriate to make a wasted costs order: Ridehalgh (at 236, 237);
(e)A legal practitioner against whom a claim for a costs order is made must have full and sufficient notice of the complaint and full and sufficient opportunity of answering it: Myers v Elman (at 318); Orchard v South Eastern Electricity Board (at 572); Ridehalgh (at 229);
(f)Where a legal practitioner’s ability to rebut the complaint is hampered by the duty of confidentiality to the client he or she should be given the benefit of the doubt: Orchard v South Eastern Electricity Board (at 572); Ridehalgh (at 229); in such circumstances ‘[t]he court should not make an order against a practitioner precluded by legal professional privilege from advancing his full answer to the complaint made against him without satisfying itself that it is in all the circumstances fair to do so’: Medcalf (at 134 [23]) per Lord Bingham of Cornhill;
(g)The procedure to be followed in determining applications for wasted costs must be fair and ‘as simple and summary as fairness permits...[h]earings should be measured in hours, and not in days or weeks... Judges ... must be astute to control what threatens to become a new and costly form of satellite litigation’ Ridehalgh (at 238–239); Harley v McDonald[2001] 2 AC 678 at 703 [50]; Medcalf (at 136 [24]).
The authorities are unsettled about solicitors for clients in hopeless cases. The decisions of various state courts of appeal and those of federal appeal courts do not always align. McColl JA addressed the mater, as did the Full Court in Z (a solicitor) & Limousin, each decision calling in aid the reasoning of Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm).[39] There, Goldberg J said the following –
The authorities do not support the proposition that simply instituting or maintaining a proceeding on behalf of a client which has no or substantially no prospect of success will invoke the jurisdiction. There must be something more namely, carrying on that conduct unreasonably. It is not clear what is encompassed by ‘unreasonably’ initiating or continuing proceedings if they have no or substantially no chance of success. It seems to me that it involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success.
Expressing the principle this way accommodates the competing principle that a party is entitled to have a practitioner act for him or her even in an unmeritorious case. ...
...
In order to affix liability for costs to a solicitor there must be something further added in the nature of acting unreasonably or for reasons unconnected with success in the litigation or for an otherwise ulterior purpose resulting in an abuse of process or in circumstances resulting in a serious dereliction of duty or serious misconduct in promoting the cause of and the proper administration of justice. I do not accept the submission advanced by White that the law is that because a solicitor’s duty is to the court he or she should refuse to pursue, on behalf of a client, a case which he or she knows to be hopeless, nor do I accept that Myers v Elman; Edwards v Edwards and Currie & Co v Law Society support this submission; something further is required. It is likely that the fact that a client insists on pursuing a hopeless case will raise an issue or inquiry as to whether the reason for pursuing the case is the pursuit of an ulterior purpose. However, an ulterior purpose or an abuse of process cannot, in my opinion, be assumed simply because of the fact that the case is hopeless.
[39] [1998] 156 ALR 169
That led the Full Court in Z (a solicitor) & Limousin to state the principle of law thus –
Thus we conclude in this case a costs order could have been made against the legal practitioner if the proceedings:
(a)were commenced with little or no chance or success, not for an ulterior purpose; OR
(b)were commenced or continued with disregard of any proper consideration of the prospects of success.

Before leaving the Full Court’s decision in Z (a solicitor) & Limousin, it is significant to observe that the court reiterated the statement in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish[40] to the effect that s 117(2) of the Family Law Act does not mandate a finding of the existence of one or all of the matters in s 117(2A) to warrant a departure from s 117(1).
[40] (2005) 33 Fam LR 123

Expressing Certain Conclusions Of Law

Based on the authorities reviewed above, several principles may be relevantly stated. They are as follows –
a)this court possess undeniable power to make a costs order against a non-party;
b)a solicitor representing a party can quite properly be the subject of such a costs order;
c)mention is made in certain of the authorities to the effect that a costs order against a non-party is exceptional;
d)the preponderance of authority and the frequency with which a costs order has been made against a non-party (especially a solicitor for one of the parties to the litigation in this court) demonstrates that such orders are not in fact exceptional;
e)in making a costs order against a solicitor the formulation adumbrated by Goldberg J in Flower & Hart is the preferable formulation;
f)applying that formulation, the impugned conduct by the solicitor must amount to the “carrying on (of) conduct unreasonably”;
g)that involves some deliberate act or deliberate decision taken by reference to circumstances unrelated to the prospects of success with either a recognition that there is no chance of success but an intention to use the proceeding for an ulterior purpose or with a disregard of any proper consideration of the prospects of success;
h)as Goldberg J held –
In order to affix liability for costs to a solicitor there must be something further added in the nature of acting unreasonably or for reasons unconnected with success in the litigation or for an otherwise ulterior purpose resulting in an abuse of process or in circumstances resulting in a serious dereliction of duty or serious misconduct in promoting the cause of and the proper administration of justice.
i)a solicitor is not to be held to have acted improperly, unreasonably or negligently simply because the solicitor acts for a party to pursue a claim that is doomed to failure; and
j)where a claim for costs is to be made against a solicitor, the solicitor must have full and sufficient notice of the claim and a full and sufficient opportunity or answering it.
It must be remembered that in this case Ms Beadle sought a separate costs order against Mr Goodridge, Ms Goodridge, Mr Goodridge’s solicitor and Ms Goodridge’s solicitor. When properly understood, the basis of the claim for costs against each was different, calling for the application of different considerations, it seemed to me. Put differently, it would be erroneous to bundle into one concept a consideration of the arguments of all four separate persons. Accordingly, it became necessary to examine the first respondent’s application for costs against each of Mr and Ms Goodridge and their respective solicitors.
Mr Goodridge’s liability to a costs order involved the recognition that he was an undischarged bankrupt who brought an application that failed. In the process, he caused Ms Beadle to incur substantial costs in meeting the stay application and ultimately procuring the failure of the stay application. His application was ambitious, to say the least. In my view, in the words of Lord Hobhouse of Woodborough in Medcalf v Mardell,[41] Mr Goodridge’s stay application was doomed to fail. The first respondent should not be forced to accept a situation where a man of straw brings a doomed application, fails in it then says he has no funds so the respondent to the application must bear her own considerable expenses herself without recourse.
[41] [2003] 1 AC 120
Ms Goodridge is in a situation that is largely similar. But unlike Mr Goodridge, while apparently in straitened circumstances, Ms Goodridge is not an undischarged bankrupt. From 23 November 2019 she was named as an interested party. She retained her own solicitors and counsel to advance her stay application. Her solicitor prepared the application in a case and they prepared Ms Goodridge’s affidavit filed in support of her stay application. Her solicitors had not participated in this litigation previously. They retained counsel. Ms Goodridge’s application for a stay failed. It was made after – not prior to or during – her examination. One wonders why Ms Goodridge brought her stay application in the first place having regard to the fact her evidence had already been given. Her stay application failed yet in making it and arguing it, Ms Goodridge (another person of straw) put Ms Beadle to considerable expense. As with Mr Goodridge, Ms Beadle should not be left unsatisfied in relation to her costs of a failed application brought by a person who was without funds.
In my view, a costs order should be made in favour of Ms Beadle against Mr Goodridge as well as against Ms Goodridge. In my view good reasons exist to depart from the costs position under s 117(1) of the Family Law Act. A costs order made under s 117(2) of the Act should be made. Both Mr Goodridge and Ms Goodridge were wholly unsuccessful in their stay application for the purposes of s 117(2A)(e) of the Family Law Act.
The quantum of costs to be paid by Mr and Ms Goodridge depended on the basis of their liability for costs. On behalf of Ms Beadle, Mr Williams sought costs to be imposed on an indemnity basis in the fixed sum of $33 943.35. While not expressly stated as such, I took Mr Williams to be contending that Ms Beadle sough a costs order rendering Mr Goodridge and Ms Goodridge jointly and severally liable to costs on an indemnity basis in the sum of $33 934.35.

Indemnity Costs

In the family law jurisdiction, the phenomenon of costs being ordered on an indemnity basis is not new. The jurisprudential basis for the making of an indemnity costs order was examined by the Full Court in In the Marriage of Kohan.[42]
[42] (1992) 16 Fam LR 245
Of course, the law concerning indemnity costs orders is of very considerable antiquity. Indemnity costs were altogether different to costs orders made by common law courts where almost without deviation, costs were awarded on a party/party basis whereas the courts of chancery took the view that costs could be awarded on a variety of bases and on an equally varied measure of estimation. The authorities demonstrating those propositions included Jones v Coxeter, Corporation of Burford v Lenthall,[43] Mordue v Palmer,[44] Howes v Barber,[45] Garnet v Bradley and Andrews v Barnes. Indemnity costs were routinely ordered where a party made an allegation of fraud but failed to prove it, as was illustrated in Forester v Read[46] and Christie v Christie.[47]
[43] (1743) 26 ER 731
[44] (1870) LR 6 Ch App 22
[45] (1852) 18 QB 588
[46] (1870) LR 6 Ch App 40
[47] (1873) LR 8 Ch App 499
In more recent times in Australia, and in state and federal jurisdictions beyond the family law jurisdiction, indemnity costs orders have attracted an array of extremely learned and deeply considered judgments of judges possessed of very great erudition and intellect. Those include the decision of Holland J in Degman Pty Ltd (in liq) v Wright (No 2),[48] the decision of Tadgell J in Australian Guarantee Corporation Ltd v De Jager,[49] and the decision of Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd.[50]
[48] [1983] 2 NSWLR 354
[49] [1984] VR 483
[50] (1988) 81 ALR 397
In In the Marriage of Kohan, the Full Court (Strauss, Lindermayer and Bulley JJ) held that a court in this jurisdiction should not depart from the ordinary rules in relation to costs “unless there are circumstances of an exceptional kind justifying such a departure”. That statement has been consistently applied in such cases as Yunghanns, Addison & Leahy,[51] Medlon & Medlon (No 6)[52] and most recently in Mansfield & Mansfield,[53] judgment in which was handed down last week on 25 October 2019. There, citing In the Marriage ofRobinson and Higginbotham[54] and Stephens v Stephens (Enforcement) (Costs)[55] the Full Court said it is well settled that the Full Court should be reluctant to interfere with the decisions of a trial judge relating to costs. When sitting as a member of the Federal Circuit Court of Australia prior to my elevation to this court I canvassed questions about indemnity costs in such cases as Yeo & Rambaldi (As Trstees of The Bankrupt Estate of Arifovic) v Arifovic,[56] Gordon & Gordon[57] and Gordon & Gordon (No 2).[58] I adhere now to my observations in those decisions.
[51] [2008] FamCA 248
[52] (2015) 54 Fam LR 1
[53] [2019] FamCAFC 186
[54](1991) 14 Fam LR 559
[55] (2010) 44 Fam LR 117
[56] [2017] FCCA 1189
[57] [2017] FCCA 2899
[58] [2018] FCCA 1617
Any consideration of an application for indemnity costs must have regard to what seems to be the most off-cited and authoritative Australian decision of the subject being the decision of Sheppard J in Colgate–Palmolive Co v Cussons Pty Ltd (“Colgate-Palmolive”).[59] In Horne (in his capacity as trustee of the Bankrupt Estate of Narain) v Narain[60] I examined the principle doctrine of the circumstances in which indemnity costs might be awarded as relevantly distilled by Sheppard J and held as follows –
[59] (1993) 46 FCR 225
[60] [2017] FCCA 1190
The genesis of modern learning, at least in the Federal jurisdiction, in respect of indemnity costs is attributable to the decision of Sheppard J in Colgate-Palmolive v Cussons Pty Ltd (“Colgate-Palmolive”). That was an intellectual property case. Sheppard J addressed an award of costs on an indemnity basis. Relevantly, his Honour said that costs on an indemnity basis could be awarded –
(a)where a party made allegations of fraud knowing them to be false or where that party made irrelevant allegations of fraud;
(b)where evidence of misconduct existed causing loss of time to the court and the other parties;
(c)whether the proceeding was commenced for some ulterior motive;
(d)whether the proceeding was commenced or continued with wilful disregard of known facts or clearly established law;
(e)where allegations were made that ought never to have been made;
(f)where the proceeding was unduly prolonged by groundless contentions; and
(g)where there was an imprudent refusal of an offer of compromise.
Underpinning any exercise of discretion about the making of any order for costs is the need for that discretion to be exercised judicially. The authorities on point are both English and Australian. I canvassed them in Yeo & Rambaldi v Arifovic in the following terms –
While possessing a discretion in relation to the award of costs, that discretion is not one to be exercised arbitrarily as the discretion must be exercised judicially in accordance with established principles and in relation to the facts of a case. One scarcely needs authority for that proposition, but authority on point dates back to the last century in the decision of Buckley LJ in Scherer v Counting Instruments Ltd.[61] More recently the proposition was stated by the Full Court of the Federal Court of Australia in Cummings v Lewis & Ors,[62] by Toohey J in Hughes v Western Australian Cricket Association Inc,[63] by Cooper J in Brott v Grey,[64] by Branson J in Re Principal Strategic Options Pty Ltd;Coshott v Coshott[65] and by Tamberlin J in Nine Films and Television Pty Ltd v Ninox Television Ltd[66].
…
A costs order does not serve to punish the party against whom the costs order is made. That much was held by the High Court in Latoudis v Casey[67] (“Latoudis”). There, McHugh J explained that the rationale for a costs order is that it is just and reasonable that the party who has caused the other to incur costs of litigation should reimburse the successful party for the liability incurred.
[61] [1986] 1 WLR 615, 621
[62] (1993) 41 FCR 559
[63] (1986) ATPR 40-748
[64] [2000] FCA 1836
[65] [2001] FCA 664
[66] [2006] FCA 1046
[67] (1990) 170 CLR 534
Where an application should never have been brought in the first place, Medlon v Medlon (No 6) stands for the proposition that an order for indemnity costs might properly be made. In my view, that is the situation in this case. An order for the payment of Ms Beadle’s costs on an indemnity basis is appropriate. In my view the bringing of the stay application which was doomed to fail amounted to the bringing of an application that ought never to have been made. Therefore, those circumstances were squarely within one of the criteria for ordering indemnity costs as prescribed by Sheppard J in Colgate–Palmolive.
The next question is the amount of those indemnity costs. Ms Beadle’s solicitors set out in considerable detail each item of activity they performed on and from 19 September 2019 to 15 October 2019, along with disbursements and counsel’s fees making in total the sum of $33 943.35. When assessed on a party-party scale basis, that figure dropped to $20 009.70. On either basis, the stay application caused Ms Beadle to incur significant costs. She said she should have her costs.
Nothing in my examination of Ms Beadle’s claim for costs in the sum of $33 943.35 indicated that those indemnity costs sought were excessive, inapplicable, unwarranted or inappropriate.
In my view the sum of the indemnity costs to be ordered should be $33 943.35.

Should The Solicitors Pay Those Costs?

In view of my review of the authorities set out above in relation to the making of a costs order against a non-party, it seemed to me that the totality of all information was not to hand to enable me to make any order against a non-party. I had not yet heard from the solicitors for Mr Goodridge and Ms Goodridge. They must be heard. Written submissions are not adequate in that regard. It will be important to learn why they launched (independently) the stay applications using separate solicitors yet ultimately joining in their approach, grounds and case-law to support their stay application. In the case of Ms Goodridge it will be relevant to know why they brought the stay application after Ms Goodridge’s examination had been completed. It will be relevant to know all facts and circumstances leading to the bringing of the stay application. Unless and until I know of those matters any order against the solicitors will be founded on an unsupportable basis.
In those circumstances it is possible at this juncture to do two things. First, I make an indemnity costs order against Mr Goodridge and Ms Goodridge in the sum of $33 943.35. Such sum is to be satisfied from either or both but not to exceed that sum, irrespective of the person from whom it is recovered. Second, having regard to the fact that a high likelihood exists that no amount of the sum ordered will be recovered from the bankrupt or Ms Goodridge I will hear from the solicitors about whether to make an order against them in the same amount. That will be a hearing (not written submissions) that should take no more than half a day. If cross examination and verbal submissions are likely to exceed that duration, the parties should notify my associates. For that further hearing I fix 8 January 2020 and otherwise grant liberty to all parties to apply.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 30 October 2019.

Associate:

Date: 30 October 2019