GREENWOOD & GREENWOOD

[2014] FamCA 429

FAMILY COURT OF AUSTRALIA

GREENWOOD & GREENWOOD [2014] FamCA 429

FAMILY LAW – COSTS – where wife brought proceedings for discovery and spousal maintenance and withdrew them after closing her case.

FAMILY LAW – LEGAL PRACTITIONERS – concerns expressed about proportionality of costs in litigation – professional conduct in making serious allegations against another practitioner – law clerk having conduct of file for client.

Family Law Act 1975 (Cth)

APPLICANT: Ms Greenwood

RESPONDENT: Mr Greenwood

FILE NUMBER: MLC 6241 of 2013

DATE DELIVERED: 23 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Kovacs

SOLICITOR FOR THE APPLICANT: Law Firm A

COUNSEL FOR THE RESPONDENT: Mr Hall

SOLICITOR FOR THE RESPONDENT: Law Firm C

Orders

1. That the wife pay the husband’s costs by agreement and failing agreement by 4.00pm on 30 June 2014, as assessed by the Registrar.

2. That the wife’s application for costs is dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6241 of 2013

Ms Greenwood

Applicant

And

Mr Greenwood

Respondent

REASONS FOR JUDGMENT

1. These reasons concern competing costs applications by the husband and wife arising out of an interlocutory hearing on 18 June 2014 the background of which requires some explanation.

2. The proceedings on 18 June 2014 had been adjourned on 4 June 2014 by me in the Judicial Duty List because they were part-heard.  There is significance in those facts because of the way the wife conducted her case.  In the proceedings, it was submitted that the applications were “proper” and “properly” brought but that the wife had chosen to withdraw at the point where her case was about to be formally closed because of comments that I had made and to which I shall refer below.

3. These reasons also need some detailed explanation because of three other matters.  Those matters were:

   (a)The wife made allegations of consistent failure by the husband to make disclosure of documents;

   (b)Counsel for the wife in her various addresses made serious allegations against the husband’s solicitor Mr D; and

   (c)Counsel for the husband urged the Court to refer the papers to the Victorian Legal Services Commissioner about the firm Law Firm A who were the solicitors on the record for the wife because that firm had a law clerk Ms B conduct the proceedings on behalf of the wife as if she was a solicitor.

4. For the reasons that follow, I propose to make an order for costs against the wife for having withdrawn the proceedings in the circumstances.  On 4 June 2014 in the Judicial Duty List I had expressed concerns about the state of the evidence and had arranged the resumed hearing in which the parties could each file further material and each would have the opportunity to cross-examine for one hour.  Despite all of that, after the conclusion of cross-examination of the wife as the applicant, she gave instructions to withdraw the proceedings.

5. Ms Greenwood, (“the wife”) began financial proceedings in this Court on 29 July 2013 against her husband Mr Greenwood, (“the husband”).  The husband filed a response on 26 August 2013 and the parties attended a case assessment conference with a registrar on 2 September 2013 at which hearing, both were represented by the counsel who appeared throughout the proceedings thereafter and indeed before me.  There is significance in those facts as well because there can be little doubt that each of the parties well knew what the dispute was about.

6. After a long marriage, the husband and wife permanently separated in 2004 but thereafter, organised their financial affairs through a variety of entities.  Whilst the wife’s evidence was that she knew nothing about what the financial position was and blamed the husband for that, it would seem there were accountants involved who could have explained various documents.  Throughout these proceedings, the wife has also had the same firm of solicitors acting for her.  In respect of at least one entity, the parties’ two adult children were unit holders in the unit trust.  Their relationship with their mother was said by her to be not good. 

7. The business of these various entities seems (on the limited evidence that I have) to relate to the running of sport businesses.  The financial statements of the entities in 2011 and 2012 showed the main source of revenue was “[fees]”.  In her final address, counsel for the wife indicated that she had in her possession, the financial statements for 2013 for those entities.

8. At some time in the period after separation, a property development venture began which was substantially funded by the National Australia Bank.  I do not know the full extent of the wife’s knowledge about that funding.  It was this venture that caused a significant volume of litigation in this Court. 

9. After the case assessment conference in September, an order was made that all extant interim applications were adjourned to a judge’s list on 4 October 2013.  In late September 2013, a request was made by both parties for an adjournment of the Judicial Duty List hearing on the basis that the wife was awaiting a number of documents from the husband to “enable” the wife to respond to the husband’s affidavit.  As was the policy of the Melbourne Registry, because the matter was not ready to proceed as it should have been, the case was taken out of the Judicial Duty List and referred to a registrar for directions on 13 November 2013.  The solicitors for the wife wrote to the Registrar indicating that that course of action was “extremely unfortunate” as the interim orders sought by the wife “require a hearing by a judge at an early date”.  They then requested that the matter be put into the list for hearing by a judge on 13 November 2013 (if not earlier) rather than before a registrar.  The letter went on to refer to the fact that the wife was seeking urgent maintenance, the payment of the mortgage on the home and other orders that required judicial determination on an urgent basis.  The letter described those orders as relating to restraining the husband from going ahead with a “joint venture agreement with a third party” and indeed, seeking to set aside that joint venture “which defeats an order of the court within s 106B”.  It is pertinent to observe that that letter by the solicitors was copied in to the solicitors for the husband.  It is also relevant to observe that the letter was not mentioned in the hearing before me but that at all times, the husband’s position as articulated by his counsel was that the wife had chosen not to proceed with what she had been describing as these urgent applications. 

10. The Registrar was sufficiently moved by the plea of the wife’s solicitors to list the matter before Bennett J on 10 December 2013.  I was informed by counsel that at that particular hearing, the parties were referred by her Honour to Registrar Sikiotis to discuss exactly what it was that the wife was seeking.  That apparently culminated in some agreement between the parties about interim arrangements none of which included injunctive relief or indeed, the s 106B foreshadowed above.  When the parties returned to Bennett J with their agreement, her Honour apparently told them that she would also order that they could have leave to seek the issuing of subpoenae as they saw fit as well as permission to interrogate one another.  Whether or not Bennett J made that announcement was somewhat disputed by counsel for the wife. 

11. Unfortunately, when the sealed order issued, the extra orders relating to the subpoenae and the interrogation were left out.  The wife, who was keen to pursue discovery, decided not to seek the subpoenae because, according to her counsel, there was no reference to such leave in the order of the Court.  Counsel for the husband observed (and indeed tendered his notes made at that time) that he heard her Honour make the orders.  The court file contained what appears to be a pro forma document used by Bennett J and indeed that order is marked by a circle indicating that her Honour at least intended to make that order.  This issue was raised before me in the Judicial Duty List on 4 June and there was consensus that the sealed orders did not reflect what her Honour had done on 10 December 2013.  A request was made to rectify the position under the slip rule.  Because I felt that I could not alter the orders myself, the matter was referred to Bennett J.  The position was rectified only some days ago when a new order was issued and indeed, the subpoenae and other orders were included.  I am satisfied that her Honour did pronounce the orders and that the wife and her practitioners did not seek to rectify the position.  Suffice to say, the Court must take some responsibility for the confusion but the parties, and particularly the practitioners for the wife, did nothing to rectify the dilemma.  All of this is relevant to the fact that over the ensuing months after the December hearing, the wife pursued discovery from the husband.  Having regard to the order that Bennett J made, much of that may have been overcome by the issue of subpoenae.  However, not all of that may have actually resulted in any clearer picture for the reasons that follow.

12. To make matters worse, the debate over the production of documents raged on between the solicitors for the parties about whether discovery had been made and whether the husband was complying with another order of Bennett J that he keep the wife informed as to the property development to which I have referred.  In the context of what was going on between the solicitors and the complaints of the wife, counsel for the wife opened the case before me on the basis of allegations that:

    ·   Lists of documents had been provided at various times by the husband but when production of those documents was requested, they were never given;

    ·   To the extent that documents were given, that only occurred when a hearing in the court was imminent;

    ·   Documents were given “on the drip”;

    ·   There was “active concealment” at every stage;

    ·   The wife only learned of the sale of the development at the case assessment conference;

    ·   A contract (the first contract) was disclosed to the wife in September 2013 showing a sale price of $2.5 million in circumstances where there was a “valuation” for the purposes of the lending bank at $3.55 million;

    ·   The first contract was said to be conditional relating to obtaining further permits to increase the number of apartments; and

    ·   The lending bank (NAB) required its credit to be repaid by 30 December 2013.

13. As this was an opening of the case, one must conclude that counsel saw that these allegations would be proved by the evidence tendered.  Some observations must be made about that.

14. The evidence did not support the sweeping statement that documents would only be produced when a hearing was imminent.  After the hearing before Bennett J, there was only one hearing and that was before me in the Judicial Duty List.  The second hearing was on 18 June 2014.  Insofar as documents were said to have been given “on the drip”, counsel for the husband described these as being part of the husband’s continuing obligation of disclosure.  It is not at all clear to me how the parties each distinguished those concepts but the correspondence that I read attached to various affidavits did not suggest that documents were provided “on the drip”.  The evidence also did not support the conclusion that there was “active concealment” at every stage.  There was clearly a complete breakdown in communication between the lawyers but I shall return to that below.

15. There is little doubt that the wife did learn of the sale of the development at the case assessment conference because she said that in cross-examination.  But there can be little doubt from an affidavit filed by the husband on 26 August 2013 that there were financial problems and one of the solutions he therefore proffered had been to dispose of the development.  It could not have been much clearer when on 20 September 2013, which was well after the case assessment conference, the parties’ two sons filed affidavits indicating not only a sale was consented to by them but a sale to a specifically named purchaser.  In an environment where the wife knew or should have known, that the NAB required its money to be repaid by 30 December 2013, just what was happening in the wife’s mind, was perplexing.  That is particularly so where I have earlier mentioned, by November, she was seeking to set aside the contractual arrangement for the sale at a point where three out of the four “proprietors” were wanting it sold.

16. I return below to the issue of the first contract and its disclosure.

17. Counsel for the wife in her opening said that her case was:

    ·   The “undervalue” was concealed;

    ·   The wife was told that the arrangements relating to the sale were that it was a joint venture but no such document was provided.  What appeared was some form of unit trust but that document was also unsigned;

    ·   The holder of the units was said to be the husband and not the family’s unit trust; and

    ·   The husband had received a deposit of $150,000 and that sum and his explanation of where some of it had been spent, had been set out in a “disbursement authority” and the husband had not provided details.

18. In relation to the $150,000, the disbursement authority preceded the case assessment conference but it is not clear to me when the wife received that document.  Attached to the affidavit of the wife filed 13 November 2013 in Annexure RLG-5 is a list of the husband’s documents that was attached to a letter dated 17 October 2013.  That document refers to the disbursement authority and it having been dated 26 August 2013.  Thus, whilst the wife might not have had that document at the case assessment conference, she certainly knew of it by October and had it within weeks of the case management conference.  She was certainly was aware of it at the time that the matter came before Bennett J.  All of that is relevant to the fact that when the hearing concluded before Bennett J, no order under s 106B had been pursued nor was any injunctive relief agitated.  I do not know whether Bennett J was asked to hear that application or indeed had time to do so but it was not suggested by either counsel that Bennett J was pressed to hear that dispute.

19. In cross-examination of the wife, she maintained she knew nothing about what the husband was doing or about the various documents.  Whether that was correct remains something of a mystery because the wife did not proceed with her application and thus, the only evidence I can rely on for the purposes of the costs application are the matters that I have read and the evidence of the wife as tested.  On that evidence, I find that there was nothing that indicated that there was an undervaluing of the development in some sinister sense.  The reason for the sale was put as economically based and indeed, the other unit holders wanted that to happen.  The wife conceded that the husband had consistently told her that he had financial troubles although she dismissed that because she said his statements were unbelievable.

20. To the extent that anything could be said about the use by the husband of the $150,000 deposit, the correspondence produced showed explanations the majority to which seemed, on my reading, to have something to do with the liabilities associated with the development.  I draw that inference cautiously because again, the husband’s evidence was not tested by cross-examination. 

21. Thus, bearing in mind counsel’s opening, I do not find there was any active concealment and I am not able to find there was a lack of responsiveness by the husband in relation to the commercial dealings.

22. There is also significance in the fact that one of the orders that the wife sought before me when the proceedings began was for the husband to be excluded from the final hearing of the property proceedings and for the wife to proceed with her application on an undefended basis if the husband failed to comply with orders for discovery.  That application too was subsequently withdrawn and based on the material I read, and the cross-examination I heard, that was a wise decision.

23. In her opening, counsel for the wife turned to the issue of the post-December hearing period.  It was asserted that the wife was met with “stonewalling as was the Court” because there was a second contract executed by the husband without the wife knowing.  This came to light after a letter was written and dated 30 March 2014 but which was signed by both practitioners.  The letter was sent to the Court requesting that the conciliation conference that had been ordered by Bennett J be adjourned because the matter was not ready.  This was a second time that the solicitors had indicated that they did not require the Court’s involvement because the case was not ready to proceed.  To the extent that the letter was a complaint about the conduct of the husband, it is noticeable that it was drawn by the solicitor for the husband and certainly did not make such a statement but in any event, both firms of lawyers signed off on that letter.

24. In her address, counsel for the wife focussed on this letter in relation to the conduct of the solicitor for the husband.  She said that the Court had been misled by the letter because the husband’s solicitor made no mention of the second contract.  Counsel initially described the husband’s solicitor’s actions as “deliberately misleading” but then, when I pointed to the seriousness of that accusation, she equivocated and rephrased it to say that she was unable to show that there was “mens rea”.  The basis of the assertion was that the letter to the Court was dated 30 March 2014 but the wife subsequently was given a contract (the second contract) that was dated on 1 April 2014 in which the husband’s solicitor was named as the solicitor for the vendor.  There is no doubt in my mind that the contract was drawn by the solicitors for the purchaser and not by Mr D.

25. It is a serious accusation to allege misleading conduct against a solicitor at any time but particularly serious where it relates to misleading the court.  I find there is no evidence that would justify such a conclusion.  There might be a prima facie case for such an inference having regard to the timing of the execution of the second contract but I could not make such a leap here because the wife’s counsel withdrew her client’s application and the issue remained untested.  There may be other explanations as to why the contract was executed only a day after the letter was written.  The accusation was therefore inappropriate if it was, as I suspect, based on an inference or inferences.

26. Throughout 2014, the correspondence shows that requests were made for an extensive array of documents the relevance of which I am unaware because the affidavit material did not explain and again, the wife withdrew her proceedings.  It was very concerning to me that in cross-examination, the wife, who was loquacious at best, gave a clear picture that she knew little about what was being undertaken in her case by her lawyers and no understanding of what it was that they were endeavouring to achieve.  As an example, she was shown the two affidavits filed by her sons in September 2013.  She avowed no knowledge of a company known as “R Pty Ltd”.  R Pty Ltd had been the purchaser in both contracts relating to the development.  The affidavits clearly indicated that as unit holders, the sons were agreeable to the sale of the development.  The wife said she had not seen those affidavits.  Counsel for the wife endeavoured to say that her instructors thought the wife misunderstood what she was being asked in cross-examination but I reject that.  The other cross-examination of the wife about what her solicitors were pursuing was also unsatisfactorily answered because she said that they were the professionals who knew what they were doing and she was paying “good” money for them to do it.  It was apparent to me that she had no idea but was content to say that she was authorising them.  This was in the context of the costs she was paying which she acknowledged were significant.  Another example of the concern I had related to a document inspection set up by the husband’s solicitor at his office.  It was uncontroversial that the attendances were by not only the solicitor from Law Firm A but also the law clerk who had been in charge of the wife’s file.  It was not an issue about whether she was charged for both those attendances but why it was necessary for two people to do so in the context of the wife saying she was just telling them to do their job, remains somewhat perplexing. 

1. It is not unreasonable for clients to leave the professional tasks to their advisors but all of that has to be seen in the context of the very modest assets of the parties in this case along with the costs that were and still are, being incurred. 

2. When counsel for the wife was initially asked what the wife’s costs were to date, she said $130,000.  That was indeed the figure sworn to by the wife in her affidavit.  Later however, counsel said the statement she had made to the Court was wrong, as indeed was the wife’s affidavit, and that it was actually only $90,000 because the $130,000 figure related to the costs including to trial.  That was somewhat ironic bearing in mind it was the solicitor who drew the wife’s affidavit. 

3. The husband’s legal fees were said to be $42,000 and counsel for the wife maintained that the substantial difference arose out of the wife’s constant pursuit of discovery.  Be that as it may, everything needs to be proportional and having now read the correspondence annexed to the affidavit material, I am very concerned that it was not.

4. Even if there was some lack of responsiveness on the part of the husband and I do not find that to be the case on the evidence here because it was not tested, it remains a fact that the sale of the development did not ultimately end up in the parties getting anything.  Whilst there was the issue of the “undervaluing” and the use by the husband of the deposit, the documents produced by the husband and his solicitor seemed to indicate that there was never going to be any money in the enterprise and the bank was pressing for its repayment before the end of 2013.  Most importantly, the wife knew or should have known, the extent of the borrowings.  She was party to the development by the entity.  Indeed, she said in cross-examination that she had spoken to the husband about having employment in the apartments complex (presumably when it was completed) to supplement her income but he declined her offer.  There seems to have been an accountant involved in the preparation of the entities’ financial documents and none of those accounting documents showed extensive wealth.  This development was unusual for these parties.

5. Having said all of that, I found it therefore perplexing for there to be extensive discovery in pursuit of documents concerning a sale that on the face of the financial documents, was inevitable and where the other unit holders at least by September 2013, were indicating a desire to sell.  A s 106B application would therefore have been very difficult for the wife to press.  It is also important to observe that the other major asset of the parties was the former matrimonial home which had been sold and the proceeds were (by the order of Bennett J) given to the wife.  The only unresolved issue about assets therefore really related to the question of an ultimate benefit to the parties if, in the future, the development ended up making them and other people a profit.  No-one was able to guess what that might mean financially for the parties in the future although one must be sceptical.

6. I have concluded that whilst there was clearly frustration in the office of the solicitors for the wife about discovery, I am not at all convinced the wife understood what they were doing.  It would seem from an indication given by counsel for the wife that her own fees equalled those of her instructors and therefore she was integrally involved in the whole process.  I am not in a position to find that the husband deliberately defied the orders of Bennett J about keeping the wife informed or that he had failed in his obligation of disclosure bearing in mind that the rules of the Court require that disclosure concerns information that is relevant to the issues in dispute.

7. In relation to the position of the husband’s solicitor Mr D, I have already indicated that I do not find on the evidence that he has done something that this or other courts abhor.  It is troubling however that in respect of the wife’s costs application, the allegations against Mr D were repeated even if not so stridently.  I have no doubt that the relationship between the two legal firms was poor but that does not justify the accusations that were made. 

8. The solicitor for the husband put his position into evidence by swearing and filing an affidavit.  It was not suggested that he would be required for cross-examination.  He is said to have had forty years’ experience.  In my view, it is important to say publically that the accusations against him were wrong.

9. Despite withdrawing her application, the wife then sought costs against the husband based upon the same or similar grounds as those which brought the case before the Court in the first place.

10. Counsel for the husband also sought costs but in addition, also sought an order that the Court refer the papers to the Legal Services Commissioner in relation to the law clerk at Law Firm A, Ms B.  The evidence of the wife was that she saw Ms B as her solicitor.  Ms B filed an affidavit in the proceedings indicating that she had the conduct of the file.  Counsel for the wife was quick to point out that this was under the supervision of a solicitor in the firm of Law Firm A although the evidence did not say that and certainly that was not the impression given by the wife.  It would be an inference I can draw that the wife saw Ms B as her solicitor because she only saw a Mr E on a few occasions. 

11. To the extent that there is an administration of justice issue from the Court’s perspective, the wife has had legal representation in various forms throughout the process.  Nothing I read or heard indicated that the administration of justice was being abused or thwarted.  To the extent that as between the legal firms, there was a concern about the wife’s representation which made the husband’s solicitor’s task more cumbersome, it is an issue that the husband’s solicitor can take up with the Legal Services Commissioner.  To the extent that it is necessary, these reasons can be so provided for that purpose.

12. With all of those unsavoury matters, I then turn to the issue of costs.

13. It was not in dispute that the provisions of s 117 of the Family Law Act1975 (Cth) (“the Act”) apply in relation to costs.

14. In proceedings in this Court, each party shall bear their own costs unless there are circumstances that justify a departure from that principle. If the Court indeed finds there is a justifying circumstance, before making an order, it must contemplate the matters set out in s 117(2A) and then still be satisfied that it is just to make an order.

15. In my view, there are justifying circumstances here because of the conduct of the wife.  The wife had filed an application no doubt on advice, specifically seeking injunctive relief and very serious orders which would have affected a third party in R Pty Ltd.  In the hearing before Bennett J in December 2013, the wife chose not to proceed to seek those orders bearing in mind what I have earlier said about the letter written by her solicitors in October 2013 abhorring the fact that the case was not put back in the Judicial Duty List as had been requested.  It was the position of counsel for the wife that the unresolved issues in December 2013 were adjourned by Bennett J to a conciliation conference in April 2014 and that the case was to go back before her Honour immediately after the conciliation conference.  However, her Honour’s order made clear that the outstanding interlocutory issues were to be consolidated with the final hearing.  The only conclusion I can draw is that her Honour understood (and it is certainly evident from the submissions of the husband) that the wife was not pursuing the injunctive relief at all.  To the extent that I am wrong about that, it was clear by 18 June 2014 that the wife was not seeking those orders.

16. When the matter came into the Judicial Duty List in early June 2014, the focus of the wife was on spousal maintenance and discovery.  At all times, the husband made clear that he was not in a position to pay spousal maintenance and supported that submission by documentary evidence including the financial statements of the various entities which the wife said she did not understand but acknowledged related to entities that involved her.

17. Counsel for the wife in submissions in relation to the costs, said that one of the reasons why the application was not proceeding was because of a “warning” I had given in the hearing that the matter would go to the Tax Office because of the inconsistency between the evidence of the wife about the husband’s capacity to pay maintenance and the income declared by him to the Tax Office.  I reject it as a basis to withdraw from the proceedings.  At all times, the wife or her advisors should have known about the husband’s taxable income.  To the extent that those documents were not in the possession of the solicitors for the wife, she was clearly part of the entity and as I have earlier said, I have inferred that there were accountants who drew the documents and she could have easily obtained them.  The focus of the solicitors was on the development rather than on the issues associated with spousal maintenance.  Further, counsel for the wife said that the proceedings were not going ahead in relation to spousal maintenance because of the fact that I had indicated that I would not draw an inference that because the husband had previously paid for all of the expenses of the household and the mortgage, he could afford to pay maintenance notwithstanding his espoused financial position.  It is one thing to draw an inference but it is another to prove one’s case.  The inference can only be drawn from various facts and in this case, they were certainly not supported by any of the documents that should have been and could have been, in the wife’s possession.

18. Accordingly, I am satisfied that the preparation for the hearing in the Judicial Duty List in June and its adjournment to 18 June 2014 have put the husband to an expense unnecessarily in circumstances where the wife had then withdrawn at the point at which her case was closed or about to be closed.

19. It must follow therefore that there is a justifiable circumstance for the husband to seek costs as he has been unnecessarily involved in these proceedings. 

20. The factors in s 117(2A) are common to both applications. There is little doubt that the parties’ financial positions are not strong. The evidence of the husband as set out in his financial statement indicates that he has significant debt and no readily obtainable assets. The wife has access to the proceeds of the sale of the home although she indicated that she had only been given $50,000 of that money because the lawyers were holding it and I have presumed that that was so because of the fact that they were looking for something to secure their costs. Whilst the wife is an aged pensioner, the husband is 66 years of age and his working life must be seen as limited as well. The main source of income of the parties otherwise had been the income from the sport business but the financial statements would suggest that little or no income of substance was drawn from that source. The husband’s taxable income which was not challenged by counsel for the wife because the husband was not cross-examined, indicated that the husband was living a very modest lifestyle. The husband has a de facto partner but her income is also modest. Of the two, the wife seems to have more assets.

21. The way in which these proceedings have been conducted is an issue.  The assertions of the wife about non-compliance with orders were disputed by the husband and the wife withdrew her application at a point when the evidence could have otherwise been tested.  I am not in a position therefore to conclude that the husband had contributed to the wife’s incurring of costs.  The opposite must be said about the wife.

22. It was not suggested in this case that there were any legal aid considerations.

23. Counsel for the husband submitted that the wife had been wholly unsuccessful.  Having regard to the process that had been followed by the wife, to withdraw it at the point she did when her evidence was at its best, must mean that she has been wholly unsuccessful.

24. The Court is entitled to take into account any other relevant circumstances it considers necessary and the matters to which I have earlier referred indicate a strident approach by the solicitors for the wife.  Had they taken a different course, this stressful and expensive litigation may very well have been avoided.  I do not accept that they had no other choice than to litigate for the reasons I have earlier set out.

25. In my view therefore an order for costs should be made against the wife for both the hearing in the Judicial Duty List, the hearing on 18 June 2014 and all of the necessary professional costs associated with that.  Counsel for the husband did a valiant job in endeavouring to apply the scale and the guesses he made as to the relevant figures certainly seem sensible but absent some particular figures, I would not be prepared to hazard a guess as to what costs were reasonable.  The wife will have some understanding of what those costs should be because she has incurred more than has the husband albeit according to a costs agreement.  I propose therefore to leave the issue of what is reasonable to the parties and failing agreement by a particular date, for the costs to be assessed by the registrar no doubt at further expense to the parties and more particularly, the wife.

I certify that the preceding Fifty One (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 23 June 2014.

Associate: 

Date:  23 June 2014