Haines & Rader (No 3)
[2022] FedCFamC1F 1007
Federal Circuit and Family Court of Australia
(DIVISION 1)
Haines & Rader (No 3) [2022] FedCFamC1F 1007
File number: SYC 1641 of 2019 Judgment of: BRASCH J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside orders made three months after application to adjourn trial was dismissed and orders made for strangers to the marriage to have their costs – Explanation and evidence of absence inadequate – Prejudice to wife – Prejudice to strangers to the marriage – Application dismissed Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 Cases cited: Allesch v Maunz(2000) 203 CLR 172; [2000] HCA 40
Barbey & Tuttle [2013] FamCAFC 44
Haines & Rader (No 2) [2022] FedCFamC1F 685
Lenijamar Pty Ltd & Ors v AGC (1990) 98 ALR 200
Leslighter & Fitzgerald-Stevens (2012) 47 FamLR 384
Taylor v Taylor (1979) 143 CLR 1
Wilkes and Wilkes (1981) FLC 91-060
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 19 December 2022 Place: Sydney Counsel for the Applicant: Mr Turnball Solicitor for the Applicant: Morson Law Solicitor for the Respondent: Dettmann Phair Lawyers ORDERS
SYC 1641 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RADER
Applicant
AND: MS HAINES
Respondent
order made by:
BRASCH J
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS THAT:
1.The husband’s Application in a Proceeding received in chambers 9 December 2022 to set aside the orders of 5 September 2022 and 6 September 2022 is dismissed.
2.The husband pay the wife’s costs of and incidental to the application in the sum of $5,184.40 (GST inclusive).
THE COURT NOTES THAT:
A.The timing for the payment of the costs order will be the subject of Orders in the substantive proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haines & Rader has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
This matter was set down for final hearing on 6 and 7 September 2022. Upon the husband’s failure to attend the final hearing on 6 September 2022, and dismissal of his email requests to adjourn the trial, the matter proceeded. It concluded on 6 September and judgment was reserved, but with the husband afforded the opportunity to provide written submissions.
The husband’s solicitor appeared on the first morning of trial, as he was still on the record. He gave evidence that he did not himself have any evidence that the husband had Covid; that was the central contention of the husband’s application to adjourn. Similarly, this [Covid] is the central contention in this application to set aside certain orders that was brought before me yesterday afternoon.
He [the husband’s trial solicitor] also confirmed the husband knew that:
(a)The trial was to commence on 6 September 2022 – I note the husband was on-line when I set it down on 22 August 2022. He was represented by Mr Q, his solicitor, and Counsel;
(b)His affidavit of evidence in chief, a Financial Statement and a Case Outline had been filed on the husband’s instructions – I note the affidavit and Outline were filed on 2 September 2022;
(c)Those documents were for use in the trial;
(d)If the husband wanted an adjournment, an Application in a Proceeding with an affidavit was required – I observe that this is at odds with the husband now deposing that prior to 5 September 2022, he had no idea an Application in a Proceeding and affidavit was required (Husband’s affidavit received by chambers on 9 December 2022, paragraph 45). I do not accept what he says because:
(i)Mr Q’s sworn evidence does not support what the husband now claims. He gave sworn evidence that on 2 September 2022 he sent texts to the husband that if he wanted an adjournment, he should file an Application in a Proceeding and supporting affidavit. Mr Q added this was not the first time that he had told the husband of the proper procedure to file an application to adjourn;
(ii)On 2 September 2022, keeping in mind the hearing was on 6 September 2022, the husband emailed chambers asking for an adjournment but was asked to provide evidence of a positive Covid test and to apply for the application in the proper form. He was subsequently told by chambers at least two times that he needed to apply for an adjournment in the proper form and acknowledged this at least four times in emails to chambers;
(iii)Later on 2 September 2022 (being the date the husband’s affidavit and Outline were filed, even though he now says he was getting too ill; husband’s affidavit received by chambers 9 December 2022, paragraphs 13-15), he emailed a picture of a RAT stick to chambers and a vague, unparticularised telehealth medical certificate (see Haines & Rader (No 2) [2022] FedCFamC1F 685, the adjournment Reasons);
(iv)On 2 September 2022, the wife’s solicitors wrote to the husband advising they opposed the adjournment application, particularly where there was no evidence of a positive PCR test or indeed medical evidence;
(v)On 3 September 2022, the husband sought an adjournment from the Eastern Appeals Registrar with respect to an appeal. He was again told adjournments are not sought by emails; and
(vi)On 5 September 2022, being the date of the subpoena hearing, the wife’s solicitors bent over backwards to assist the husband outlining he had to evidence his medical claim by telling him the location of various drive-through testing clinics close to his home.
I return now to Mr Q’s evidence given on day one of trial:
(e)If the husband filed a Notice of Address for himself (as Mr Q told him to do a number of times), that would have meant Mr Q’s firm was no longer on the record. However, the husband did not, meaning Mr Q could not comply with r 3.10(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
Mr Q also advised that Mr U of Counsel had been retained for the trial, but released at the end of the week before trial. Yet, the husband had not filed an Application in a Proceeding to adjourn, nor did he have the benefit of an order adjourning the trial at that point. It could be said that action was precipitous.
On 9 September 2022, a copy of the transcript and the orders of 6 September 2022 were sent to the husband by email, copied to the other party. Mr Phair for the wife sets out in his material the steps he took to ensure the orders and the transcript were brought to the husband’s attention. I accept what he says.
On 9 December 2022, my chambers received an Application in a Proceeding filed by the husband’s new solicitor to set aside the “orders made on 5 and 6 September 2022”:
(a)The 5 September 2022 orders related to objections to subpoena issued by the husband. On that day, the legal representatives were able to work their way through the objections during the proceedings. I made orders as to the third parties’ quantum of costs, but left the determination of who would pay to the substantive decision in this matter; and
(b)The orders of 6 September 2022 related to my dismissal of the husband’s application by email to adjourn the trial, and the provision of the transcript.
I made directions for the wife to file any response material by 4.00 pm on 14 December 2022 and listed the matter for hearing at 2.15 pm on 19 December 2022, being yesterday.
These are my ex tempore reasons arising out of the husband’s Application in a Proceeding. I have corrected the transcript for grammatical errors and to make the spoken word more amenable to writing.
Setting aside orders
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 provides:
10.13 Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
…
(2) Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.
This is in similar terms (if not identical) to the former Family Law Rules r 17.02 and the relevant Federal Circuit Court Rules.
The ground identified by Counsel for the husband was r 10.13(1)(a).
Case law on these rules, such as Barbey & Tuttle [2013] FamCAFC 44, indicates:
the discretion to set aside orders made in default of a party’s appearance is unfettered. Regard should be given to the explanation for a failure to appear, the possibility of a different result, and prejudice to the other party (and how this may be addressed).
Material
I have before me:
(a)The husband’s Application in a Proceeding and affidavit received in chambers on 9 December 2022. The husband sought to file and read an affidavit from his mother on the afternoon of the hearing. For the reasons given then, I did not receive that affidavit into evidence;
(b)The wife’s Response to an Application in a Proceeding filed 13 December 2022, an Outline of Case Document filed 19 December 2022, two affidavits of her solicitor Mr Damian Grant Phair filed 5 September 2022 and 27 September 2022, and the affidavit of Ms VV filed 27 September 2022.
I also had the benefit of oral submissions yesterday afternoon.
The 5 September orders
The husband’s Application in a Proceeding sought to set aside all of the 5 September 2022 orders, being:
THE COURT ORDERS THAT:
1.[S Pty Ltd] and [Organisation R] are excused from any further compliance with the subpoenas filed by the respondent husband on 24 August 2022.
2.The costs of complying with the subpoena filed by the respondent husband on 24 August 2022 issued to [S Pty Ltd], in the sum of $2000, are to be paid contemporaneously with the distributions of proceeds following delivery of judgement in the substantive matter.
3.The costs of complying with the subpoena filed by the respondent husband on 24 August 2022 issued to [Organisation R], in the sum of $10,552, are to be paid contemporaneously with the distributions of proceeds following delivery of judgement in the substantive matter.
4.The parties have leave to inspect the material provided by [S Pty Ltd] and [Organisation R].
5.The parties have leave to inspect any other subpoena material where leave has not previously been given.
THE COURT NOTES THAT:
A. With respect to the costs in Order 2 and 3, the parties are at liberty to argue, at trial, who should pay them and in what proportion.
However, at the start of the hearing yesterday afternoon, the husband’s counsel advised that the husband only sought to set aside the costs orders; that is; Orders 2 and 3. Unfortunately, the wife had been put to the expense of preparing material that covered all of the 5 September orders.
S Pty Ltd and Organisation R, as referenced in those orders, were entities subpoenaed by the husband, wherein he maintained that the wife had an interest of value in the S Pty Ltd entity. Organisation R are their accountant. The husband’s then solicitor on the record, Mr Q, sent an agent Mr T to attend the 5 September 2022 hearing. Mr T twice asked that Mr Q be given leave to cease to act. Each time I told Mr T that that issue had been listed for hearing on 6 September 2022; that is, the morning of trial. The hearing on 5 September 2022, as I explained to him, was limited to the subpoena objections, where the third parties - or more particularly strangers to the marriage - attended to be heard.
One of the central submissions to support setting aside the 5 September order, or at least the costs part of it, was that even though the husband’s solicitor (Mr Q) had sent a town agent (Mr T) to appear at the hearing, because Mr Q’s instructions had been withdrawn it was as if the husband was unrepresented. Counsel was unable to give me any authority to support that proposition. It was said that Mr T was to apply for Mr Q to have leave to cease to act. He did do that, but I indicated, as I have already said, that application would be heard by me at the start of trial.
Unfortunately for Mr Q (as confirmed in cross-examination the next morning on 6 September 2022), because the husband had not filed an address for service, Mr Q remained on the record until and unless he was given leave to cease to act. Mr Q confirmed he had told the husband that a number of times, yet the husband did not.
The husband’s counsel (yesterday afternoon) was asked about Mr T’s participation in the hearing, and, specifically indicating when he was asked about the subpoena and how the matter was progressing, [Mr T said] that “I believe that deals with the matter this far, your Honour”. This was when the subpoena issue had worked to a resolution. From the bar table, the husband’s counsel made the rather scandalous submission that the town agent went beyond his purpose.
The wife tended a document, which became Exhibit 1. It was a text exchange between the husband and his solicitor after the subpoena hearing. It said:
[Organisation R] and [S Pty Ltd] were both awarded costs
More than $12,000
With the husband then texting
Of course wasn’t expecting anything less.
I accept the last line could either be a reference to the fact of the making of a costs order, or, the quantum. It really does not matter which one, because it serves to highlight that the husband and his solicitor knew of the hearing and the purpose of the hearing. It is also difficult to accept the submission made by the husband’s counsel yesterday afternoon that his solicitor’s instructions had been withdrawn. The husband and the solicitor were plainly still in contact with each other after the subpoena hearing.
I do not accept the husband’s submissions. First, the husband says very little in his current affidavit about his health on 5 September 2022. In his paragraph 27, he said he again woke up feeling ill. He says he would not be able to provide instructions for the subpoena hearing. That was a conclusion; I do not accept that. He was perfectly able to email chambers with various requests on that day. As it now turns out, he only challenges the quantum of costs, which is something not requiring instructions of any significance or complexity. Second, the husband’s solicitor (still on the record) sent a town agent. Third, I have called the submissions about the town agent “going beyond purpose” scandalous, because the husband deposed to not a skerrick or scintilla of evidence that an officer of the Court had "gone beyond purpose”.
Fourth, I do not accept the husband can cherry pick what he wants to set side on the basis of his absence and what he wants to keep. Fifth, I also accept that the husband was well and truly aware of the hearing on 5 September 2022. His solicitor on the record was able to arrange an agent and the solicitor and the husband remained in contact thereafter (Exhibit 1). The husband also asked for the hearing to be adjourned by email.
Sixth, I formed the view, and remain of the view, that the costs sought by Organisation R and S Pty Ltd were reasonable. Neither in his oral submissions nor in his affidavit did the husband say what he thought they ought be. It still remains for me to determine whether the husband, wife or both ought meet those costs of the strangers to the marriage.
Seventh, by reference to Barbey & Tuttle, supra, I have addressed: the non-failure to appear (i.e. there was an agent there); that I am satisfied that the costs are reasonable; and setting aside the order would cause some prejudice to the wife, but more so to two strangers to the marriage, being the corporate entities who were served with the husband’s subpoenas. I have no evidence that the husband served them with his application or even gave them notice. Eighth, I have no evidence to explain the husband’s delay in bringing this application, particularly when he foreshadowed it in yet another email to chambers on 5 October 2022.
For all and any of the above reasons, and in the exercise of my discretion, I will not set aside the 5 September 2022 order. The husband has failed to persuade me.
The 6 September 2022 orders
The 6 September 2022 orders are as follows:
THE COURT ORDERS THAT:
1.Insofar as the husband moves the Court, by email, to adjourn the trial, such requests are dismissed.
2.Both the husband and wife will be provided with the transcript of the trial by the Court, and:
(a) Upon it being sent by the Court to the husband’s email address known to the court, the husband has 14 days thereafter to file and serve written submissions to the court; and
(b)Upon the husband providing any such written submissions within that 14 days, the wife has 14 days to file and serve any reply.
THE COURT NOTES THAT:
A. The effect of Order 1 is that the trial will proceed today.
B.In the event the husband does not file any such written submissions within the 14 days, the court intends to move to judgment, when Her Honour Justice Brasch can thereafter.
C. Should the wife file written submissions in reply, then, again, Her Honour will move to judgment, when she can thereafter.
True, those orders were made in the husband’s absence, but that was a consequence of his unsuccessful adjournment “application” if I can call it that - an application that was never made in the proper form (despite requests that he do so), but rather by email requests being sent to chambers.
I gave reasons for dismissing his “application”, such as it was, to adjourn, which has been published as Haines & Rader (No 2) [2022] FedCFamC1F 685. The issues he raises now are by and large the same issues on which he sought an adjournment – that he had Covid and apparently was ill. In the affidavit before me on yesterday afternoon’s hearing, the husband also mentioned he wanted a safety plan. There was nothing new in that either. He was able to seek same and was well aware of that (Husband’s affidavit received by chambers on 9 December 2022, paragraph 6 and Haines & Rader (No 2) [2022] FedCFamC1F 685 at [4]-[8]). His affidavit does not go so far as to assert he could not participate because a lack of safety plan. That would have been a curiosity if he had – too ill on one hand, but needing a safety plan to attend on the other.
Counsel for the husband appropriately conceded that the application to set aside the orders of 6 September 2022 was, in effect, running the adjournment application again.
As already said, the gravamen of the husband’s application to adjourn was that he was sick - just as it is for his application to set aside the orders. As also said, my reasons for dismissing that application by email to adjourn the trial ought be read in conjunction with these reasons.
I asked Counsel to identify for me, the new evidence that I did not have before me on the adjournment application. He identified paragraphs 10, 11 and 17 of the husband’s December affidavit. They are all variations on the same themes that I considered on the adjournment application. There is no evidence supporting the husband’s claims and conclusions. The affidavit is replete with conclusions, submissions and arguments.
Yet, despite apparently being too ill to prepare material, the husband was able to email the Court numerous times with demands or requests for stays and adjournments. He was apparently not too ill to keep writing to the Court in the lead up to the trial, on the day of trial and thereafter.
As already determined, I do not accept the husband first knew he was to file an Application in a Proceeding seeking an adjournment only on the afternoon of 5 September 2022. I accept his then solicitor’s evidence in that regard.
It was also submitted that I should not think the husband was trying to avoid the proceedings by bringing this application to set aside the 5 and 6 September orders. I find that submission hard to accept when the husband has not once, but twice, applied to stay these proceedings pending the conclusion of his District Court proceedings. I do not need to make a finding in that regard though; I simply note the submission that was made.
Conversely, the solicitor for the wife highlighted that the husband was afforded procedural fairness not once but twice. First, he was afforded the opportunity to attend at the trial, which I have already set out. I am well satisfied the husband knew of the trial dates.
Second, the husband was given a further opportunity to be involved in the trial by my making orders that he be provided with the transcript and provide written submissions. He did not do that. The solicitor for the wife listed the steps he took to ensure that my order about the submissions and the transcript were brought to the husband’s attention. I accept, as I said, what he said. It was not disputed by the husband. Why he [the husband] terminated the retainer with his solicitor and counsel on the eve of trial remains a mystery.
I pause there to observe what was said by Kirby J in Allesch v Maunz(2000) 203 CLR 172 (“Allesch v Maunz”) that procedural fairness requires the opportunity to be heard: “Affording the opportunity is all that the law and principle require.” The husband had the opportunity – not once but twice. He did not take up either.
It was also submitted for the wife that the husband gave no reasons for his delay in bringing this application, having foreshadowed it on 5 October 2022, more than two months ago. Indeed that is correct and I accept that to be so; the husband does not explain his delay.
In the exercise of my discretion, I am not persuaded by anything that the husband said in his affidavit or in his submissions that I ought set aside the 6 September 2022 order. The husband made choices as to how he would participate, or not, in these proceedings. He made choices about the evidence he would put on, or not. He was given ample opportunity or prompts by the wife’s solicitors to evidence his claims. He did not do so in any satisfactory way.
I am not persuaded by the husband’s explanation for his failure to appear. I do not accept that there may have been a different result if the husband had appeared on his adjournment “application”, seeking an adjournment. The prejudice to the wife would continue if the matter was not finalised; this matter has been in the courts since 2019 (See Allesch v Maunz at [40]):
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
The husband said he would pay the wife’s costs thrown away of the indulgence to set aside the orders, but that was only when I asked; it was not proffered by him in his orders or application. No quantum was proposed. Further, the prejudice to the wife is not just one that is countered by a costs order. Finality of proceedings would be a chimera.
Thus, for all of those reasons I will not exercise my discretion to set aside the 6 September 2022 orders.
Costs
The wife sought her costs of and incidental to the husband’s application received in my chambers on 9 December 2022.
Turning to s 117 of the Act, as subsection (1) indicates, each party will bear their own costs. Subsection 2 indicates that if in proceedings under this Act the court is of the opinion that there are circumstances that justify in doing so, I may make a costs order and particularly by reference to that set out in s 117(2). Section 117(2A) lists factors I may take into consideration. I turn to each.
(a) the financial circumstances of each of the parties to the proceedings;
On the face of their financial statements, the wife earns JobSeeker of $321. The husband earns just over $3,000 per week (wife Outline) but does not disclose how he meets the apparent excess of outgoings over income.
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
There is no suggestion that either party is in receipt of legal aid.
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
The conduct of the parties under this subsection deals with the conduct in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters. I do not read that subsection to cover the kinds of things that might be said of the husband in this matter: that he has delayed, or, that he has brought an application without merit. I consider that elsewhere.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
Again, I adopt a similar approach. Whilst submissions could have been made about the husband’s conduct, I will consider that in a later section.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The husband has been wholly unsuccessful in his application.
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
I am not aware if there are any offers in writing to settle the proceedings. I would doubt that very much, but nothing was before me.
(g) such other matters as the court considers relevant.
Although the submission was not made, had it been, I would have considered that this application was an abuse of process. However, because that submission was not made, I will not make such a finding. However, I do consider it was disingenuous of the husband to bring an application on very poor and flimsy evidence in circumstances where he well knew, given my reasons in the adjournment, and the prompting by the wife back in September as to what was be required. Equally, to bring a set aside application as, essentially, a re-run of the husband’s adjournment application was also disingenuous.
I am satisfied that the circumstances above justify the making of a costs order in favour of the wife. I turn to:
S117(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
Subsection (4) concerns Independent Children’s Lawyers (“ICL’s”). This is irrelevant.
Section 117(4A) If:
(a) under section 91B, an officer intervenes in proceedings; and
(b) the officer acts in good faith in relation to the proceedings;
the court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.
Subsection (4A) is also irrelevant dealing as it does with s 91B interventions.
Section 117(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Subsection (5) again is with respect to ICL’s.
Section 117(6) The court must not make an order under subsection (2) against a guardian ad litem unless the court is satisfied that one or more acts or omissions of the guardian relating to the proceedings are unreasonable or have delayed the proceedings unreasonably.
Subsection (6) is about guardians ad litem. I do not consider it to be relevant in this matter.
Quantum
The solicitor for the wife did not seek orders for his appearance at court. He however told me that he had spent more than 20 hours working on the matter, and that included reading the Application in a Proceeding, the affidavit, preparing the client’s response, and preparing or collating affidavits and drafting and settling his detailed outline. This is also in circumstances, where the wife, like the court, was under the impression the husband was seeking to set aside all of the 5 September 2022 orders. I accept his submission that that was considerable work, which was then rendered unnecessary.
The husband’s counsel submitted, appropriately, that he could not cavil with the scale rate that was proposed with the wife’s solicitors, but could not agree or disagree with the 20 hours.
I accept that the wife’s solicitor’s conduct of this application would have taken more than the 20 hours in work as he said. I accept that he proposed to cap his work at 20 hours. Working through the husband’s many communications would be time consuming. I also accept his submission that 20 hours is a reasonable number of hours for the wife’s cost of and incidental to the husband’s application.
The wife asked for costs on scale which would be item 108 of Schedule 3 to the Act and that is $259.22 per hour including GST.
I therefore make an order that the husband pay the wife's cost of an incidental to this application in a proceeding in the amount of 20 hours at $259.22 per hour. That is $5,184.40 GST inclusive. I will make orders as to the timing of that payment when I deliver my reasons in the substantive hearing.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 20 December 2022
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