Issa and Jabr (No 2)
[2015] FamCA 166
•17 March 2015
FAMILY COURT OF AUSTRALIA
| ISSA & JABR (NO 2) | [2015] FamCA 166 |
| FAMILY LAW – COSTS - husband previously initiated proceedings for the return of the child to Malaysia – where mother seeks indemnity costs – father’s application lacked merit – whether appropriate to award costs on indemnity basis – orders made for costs on a party and party basis. |
| Family Law Act 1975 (Cth) s 117(2A) |
Family Law Rules 2004 (Cth) r 19.08, 19.18
| Kohan & Kohan (1993) FLC 92-340 |
| APPLICANT: | Ms Issa |
| RESPONDENT: | Mr Jabr |
| FILE NUMBER: | ADC | 1940 | of | 2014 |
| DATE DELIVERED: | 17 March 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 5 September 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pyke QC |
| SOLICITOR FOR THE APPLICANT: | Norman Waterhouse Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Ingleby |
| SOLICITOR FOR THE RESPONDENT: | Howe Jenkin |
Orders
The husband pay the wife’s costs fixed in the sum of TWENTY SIX THOUSAND ONE HUNDRED AND TWENTY SIX DOLLARS ($26,126) on or before 90 days from the date of this order.
That if the husband shall fail to pay the costs sum as provided for herein, then interest shall run on the outstanding amount of such payment from the date of default to the date of payment as prescribed by the Family Law Rules.
That the Application for Costs do otherwise stand dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Issa & Jabr (No 2) 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 ADELAIDE |
FILE NUMBER: ADC 1940 of 2014
| Ms Issa |
Applicant
And
| Mr Jabr |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 5 September 2014, the following orders were made:-
(1)That the orders of 5 June 2014 be discharged.
(2)Save as to the wife’s application for costs, the Initiating Application filed 2 June 2014 and the Response filed 6 June 2014 do stand dismissed.
(3)The wife do file and serve submissions as to costs on or before 4pm on 14 November 2014.
(4)The husband file and serve a response to those submissions on or before 4pm on 5 December 2014.
(5)The wife’s application for costs is adjourned.
(6)The name of the child L born … 2009 be removed from the Airport Watch List.
Pursuant to those orders, Ms Issa (“the wife”) by Application in a Case filed 13 November 2014 seeks an order that Mr Jabr (“the husband”) pay her costs to be fixed in the sum of $33,998.
In support of the wife’s application, she relies upon an affidavit and financial statement both filed 14 November 2014.
The wife seeks that her costs be assessed on an indemnity basis. However, a consideration of the schedule of costs being Annexure B to the wife’s affidavit suggests that taking into account a significant fee discount of $16,843 (by reference to Annexure A), the indemnity costs as to solicitors fees represent a modest increase of $1,250.
I refer to my judgment delivered on 13 February 2015 in respect of the husband’s application to file documents out of time. In summary, on 27 January 2015 I delivered reasons in respect of the wife’s application for costs. Those reasons were predicated on the husband’s non-compliance with orders for the filing of written submissions. The orders made on 5 September 2014 required the husband to file and serve his documents no later than 4pm on 5 December 2014.
It is now a matter of history that the husband filed his documents and submissions on 18 December 2014. As I noted in my earlier reasons, they did not appear on the Court file. The existence of the documents were only brought to my attention following the publication of my judgment in respect of the wife’s application for costs on 27 January 2015.
Following orders made by consent setting aside the costs order made by me on 27 January 2015, I heard and determined in favour of the husband his application for leave to file written submissions and answering documents lodged in the Court on 18 December 2014 nunc pro tunc. Ultimately I made orders in terms of that application and further gave leave to the wife to file and serve any written submissions in response by 4pm on 6 March 2015.
These reasons are now inclusive of the submissions, affidavit material and financial information relied upon by each of the parties.
BACKGROUND
The husband commenced the proceedings by the filing of an Initiating Application on 2 June 2014 seeking final orders for the return of the child to Penang within a short period of time.
The proceedings first came before the Court on 5 June 2015 on an ex-parte basis. Notwithstanding that there were extensive interim orders sought which if granted would see the child return forthwith to Malaysia, at the hearing the solicitor for the husband only sought orders restraining the wife from removing the child from South Australia and the Commonwealth of Australia without the consent of the father or further order of the Court.
The matter was then adjourned to 26 June 2014 with orders made as to the method and manner by which the application, affidavit in support and a copy of the order made 5 June 2014 to be served on the wife.
Whilst not directly relevant to the wife’s application for costs, an unfortunate aspect to the proceedings was the instigation by the husband of significant media attention and involvement. The story was broadcast on 2 June 2014 which showed the husband with a television film crew at the wife’s place of employment and a childcare centre attended by the child.
In his affidavit, the husband sets out that both he and the wife are Malaysian citizens and medical practitioners. The parties were married in Penang in 2009 and the child was subsequently born in 2009. The parties soon separated on 19 April 2010 and save for the circumstance which brought the wife to Australia, the parties had lived their married life in Malaysia.
On 26 January 2011, the parties obtained a divorce in the North East Syariah Lower Court in Penang.
Each of the parties were then and remain represented by Malaysian solicitors. The husband alleges that on 8 January 2013 he was told by the B Hospital where the wife was employed that she had taken leave from 1 January 2013.
The apparent concern of the husband is explained in paragraph 8 of his affidavit:-
About the same time I was informed by a friend that my former wife had left Malaysia and had taken herself and our daughter to Australia on 6 January 2013 through Kuala Lumpar International Airport. My former wife obtained a passport for our daughter without my knowledge and consent. She may have been able to do so by relying on the order she had obtained in the Malaysian Court for custody of our daughter on 19 December 2011. No order was made at time for visitation rights as there was already in place an existing order for access and visitation.
The husband annexes a copy of the order made 19 December 2011 which provides that by consent order of the parties the wife has the custody of the child.
Following the husband allegedly learning that the wife had taken the child to Australia on 6 January 2013, he made a report to the Royal Police of Malaysia on 8 January 2013 which importantly includes the following statement:-
At the same time I was informed by a friend that my ex-wife had took away my child to Australia on 6 January 2013 at 10.30pm through KLIA while we still had a part-heard hearing on 16 January 2013 at the Syariah Court Penang.
The husband asserts that it was only after the wife had left Malaysia that he found a copy of a letter sent by the director of the cardiology unit of the hospital in Adelaide where the wife had taken up a residency that he was informed for the first time as to why the wife left Malaysia and here whereabouts.
Apparently the parties remained in dispute as to the arrangements by which the husband would spend time with the child and proceedings were ongoing in the Syariah High Court. Importantly it is alleged by the husband that the proceedings could not continue because the wife had without warning or advice left Malaysia. It is suggested that she failed to attend the hearing.
At paragraph 24 of the husband’s affidavit he alleges that because the wife is now aware of his efforts to spend time with the child, that she will leave South Australia and possibly the Commonwealth of Australia with the child. It is the allegation made in paragraph 24 that presumably underpinned the orders sought by the husband’s solicitor.
Paragraph 25 says:-
Because of my former wife’s previous conduct in abducting my daughter from Malaysia, I am concerned that she will leave South Australia if she receives notice of the application. Accordingly, I seek to proceed on an ex-parte basis.
The clear assertion by the husband is that the wife has abducted the child and unless restrained and/or dealt with, is likely to repeat her conduct. Paragraph 27 sets out the mischief allegedly arising from the wife’s conduct namely, that it has the effect of preventing the husband from spending time with the child. The ancillary concern is that it “threatens the proper conduct of the Malaysian proceedings”.
In her written submissions, counsel for the wife refers to paragraph 26 of the affidavit where the husband does not seek to invoke the jurisdiction of this Court, but only seeks the return of the child to Malaysia.
At Annexure K of the husband’s affidavit a judgment delivered on 15 November 2013 following the hearing of an interlocutory application is annexed. It confirms that the Court was to consider the husband’s case to spend time with the child on 16 January 2013. The judgment confirms that the proceedings were not heard on 16 January 2013 because the wife informed the Court (and by implication the husband) that she had since February 2013 taken up further studies at a hospital in South Australia pursuant to the approval of the Ministry of Health in Malaysia.
On 23 March 2013, the wife filed an interlocutory application which sought orders that the child live with the wife in Australia for the currency of her employment, but importantly, that the husband be allowed to visit the child in Australia subject to appropriate notice being given.
The husband’s counsel is referred to in the judgment as having “taken note of this matter and had time to reply to the plaintiff’s application affidavit and had agreed that the case for visiting rights (principal case) be postponed until the case issue is settled”.
Notwithstanding the notice clearly given to the husband and his legal representatives, he did not file a reply or any submissions to the matters raised by the plaintiff. The Malaysian Court considered that it should not adjourn the matter any further.
Ultimately the Court considered that a consent order cannot be amended except with the consent of the parties. The interlocutory application of the wife was dismissed.
The proceedings however were not concluded. The wife disagreed with the dismissal of her interlocutory application and according to her affidavit filed 26 June 2014, an appeal remains before the Appeal Court in Penang.
The husband’s application to spend time with the child remains ongoing. In April 2014 the husband gave evidence and on 6 May 2014 the husband’s Malaysian lawyer advised the wife’s lawyer that he intended to spend time with the child in Adelaide between 19 May 2014 and 25 May 2014. The wife asserts that this was the husband’s first request since January 2013.
Notwithstanding a favourable response from the wife, the husband did not reply preferring instead to involve the media and then issue proceedings. It is notable that the husband’s affidavit is silent as to the ongoing proceedings and the communication passing between the solicitors for the parties as to arrangements for the husband to spend time with the child.
The wife alleges that it was her intention to return to Malaysia to give evidence in the Court proceedings on 23 July 2014 if required.
The husband alleges that the wife abducted the child from Malaysia. The wife’s position is as set out in paragraph 63.6 namely:-
[It is argued] that I sought retrospective permission to take [L] out of Malaysia. This is not correct. My understanding was I had permission by virtue of the 19 December 2011 consent order. I sought clarification of the 19 December 2011 following a request by the Australian Immigration Department. The application was dismissed and is the subject of an appeal. My understanding is the Court determined it dealt with similar matters as the principal application.
Following the media coverage, the wife obtained an ex-parte order on 5 June 2014 from the Chief Judge of the Syariah High Court of Pulau, Penang that:-
(1)The father is prohibited from interfering with the mother at work, home or at the child’s nursery until she has completed her studies at the hospital in Adelaide.
(2)That the father shall not approach the mother closer than a distance of 50 meters.
(3)That the father shall not engage in any form of “provocations” including the use of media.
(4)That the mother is at liberty to take the child to any part of Australia without interference or disturbance from the father.
(5)The father is restrained from issuing or providing false or misleading information to the media in respect of the Malaysian proceedings.
In response, the husband relies upon his affidavit filed 18 December 2014. At paragraph 5 the following appears:-
I maintain that at all times my application was with merit. I initiated proceedings on the grounds of my concern for the safety and welfare of my daughter who had been removed from her country of residence to Australia by the applicant without notice. At the time of filing my Initiating Application, I had limited information about the short or long-term intentions of the applicant who had care of our daughter in Australia. I feared that once the applicant was aware of my attempts to locate her and my daughter, she would promptly leave Australia and relocate elsewhere.
For her part, the wife rejects that contention and there is no evidence relied upon by the father of even the most remote intention or possibility of the mother and child leaving Australia without notice.
A principal complaint of the wife is that the proceedings brought by the husband were allegedly predicated on an assertion by him that the child had been “abducted” from Malaysia. The submissions submitted on behalf of the husband are silent in respect of this contention.
The essence of the matter is as he says in the following paragraph:-
[7]An order was made by the Syariah Appeal Court on 5 August 2014. However I did not understand the force and effect of that order at the time, due to the inadequate and incorrect advice that I received from my former Malaysian lawyers. I then sought alternate advice from other Malaysian lawyers, and my current lawyers in Australia, who by that time had received a copy of the translated order of 5 August 2014, as annexed to the applicant’s affidavit of 2 September 2014. I had previously sought this information from my former Malaysian lawyers to no avail. I then became aware of the force and effect of that order of 5 August 2014.
The husband therefore rejects the assertion made by the wife’s counsel that he “must have known that the proceedings in the Australian courts were ill-conceived, without foundation and that his assertions in his Initiating Application were baseless and misleading”.
Clearly, the wife could not know the nature and extent of the advice given to the husband by his solicitors. Indeed that advice subject to waiver by the husband, is privileged. The husband does not provide the detail of that advice other than his assertion that it was “inadequate and incorrect advice”.
That of course cannot be a complete answer to the argument enunciated by the wife. It could not be said that she has any involvement, connection or responsibility to the quality of legal advice given to the husband. It may be as the husband now properly concedes, that his advice was inadequate and as a result he has taken action in Malaysia against his former solicitors. That does not in any way absolve the husband from the consequences of his actions namely, his lack of understanding of the terms and conditions of the order made 5 August 2014.
It is the position of the husband that at all times the Malaysian Courts were the appropriate forum to determine the outstanding parenting issues between the parties. The husband says that the proceedings filed in this Court on 2 June 2014 were designed to achieve that result.
It is open for me to find that the husband was aware of the orders made in the Malaysian Court on 5 June 2014 and of the further adjourned date of 23 July 2014 at which time the wife would give evidence.
The husband has paid little or no attention to the ex-parte orders made and I find that the husband must have known that the wife and the child were in Australia at all relevant times and importantly, with the permission of the Malaysian Court.
At the date of the commencement of proceedings in this Court, I consider that the husband’s application was ill-conceived and without any real or genuine basis for concern. There was no suggestion that the wife was not attending the Court in Malaysia either personally or by her legal representatives or by electronic means. It could not be said at any time that there was any evidence at all to support the husband’s contention that the wife had “abducted” the child. In summary, the wife considers that the husband’s application and its continuation was ill-conceived, inappropriate and in all of the circumstances, vexatious and oppressive.
The husband argues that there is no basis for an order for costs because:-
(a)The legal position not being fully clarified until the orders of the Syariah Appeal Court, Penang made 5 August 2014;
(b)The wife relying on matters (being the material in paragraph 6 after the first sentence) which refer to the husband’s conduct as a husband rather than his conduct as a litigant;
(c)The wife herself seeking orders in the proceedings.
In her submissions in response the wife’s counsel argue that there was no uncertainty in respect of the ability of the wife to take the child to Australia. Paragraph 33 of the wife’s affidavit deposes to the wife and child’s presence in Australia since January 2013. The husband could have brought proceedings at any stage but chose to do so only after further proceedings in 2014 were heard in the Malaysian Court. If the husband’s position was truly that the wife had “abducted” the child, there is no good reason for the husband to have delayed in his proceedings in Australia particularly given that he was aware of the whereabouts of the wife and child and the reason for her presence in Australia.
APPLICATION FOR COSTS
Pursuant to Rule 19.08 (1) of the Family Law Rules 2004 (Cth) (“the Rules”) the wife applied for an order that the husband pay her costs. The application is made by an application in a case. The mother also seeks an order for costs payable by the husband on an indemnity basis. Rule 19.08 (3) provides:-
A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
The method of calculation of costs is referred to in Rule 19.18:-
(1)The Court may order that a party is entitled to costs:
(a)of a specified amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Sub-Rule 19.18 (3) provides that the Court may consider:
(a)the importance, complexity or difficulty of the issue;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
In considering what order should be made, if any, in respect of the wife’s costs s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to have regard to the following:-
(a)the financial circumstances of each of the parties to the proceedings;
(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;
(c)the conduct of the parties to the proceedings in relation 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;
(d)whether the proceeding were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matter as the court considers relevant.
Accordingly, I have a wide discretion in respect of matters relating to a potential costs order.
The wife has filed a financial statement on 14 November 2014 which provides that her average weekly income is in the sum of $2,884 with personal expenditure of $2,713. Her income arises from her short-term employment with SA Health as a medical practitioner. It is common ground that the wife is employed on the basis of a residency in cardiology for a period of three years. Thereafter the wife will return to Malaysia and resume employment. It would appear that she owns property to the value of $264,000, but this is offset by total liabilities in the sum of $211,833 of which $27,000 is outstanding to the wife’s sister for the payment of her legal fees and a further outstanding sum of $13,833 payable to Norman Waterhouse Lawyers.
The husband is not able to comment upon the wife’s evidence in relation to her financial circumstances, but by financial statement filed 18 December 2014 he sets out his income from employment as a healthcare practitioner with the Malaysian Health Ministry at $912 per week (inclusive of Government benefit and allowance) and submits total expenses of $1,353.
Importantly, the husband has limited savings and other assets but has substantial loans to a friend of $17,392 and outstanding legal fees as at that date of $5,000.
I accept that whatever the accuracy of the position is, the husband’s financial position is poor and significantly exacerbated by the legal fees that he has incurred in these proceedings.
Equally, the wife’s financial circumstances are modest and any disparity in the financial position of the parties would not be in and of itself be a factor against an order for costs as sought.
Even were it to be said that the husband was impecunious, that in and of itself would not prohibit or prevent an order for costs being made if it was otherwise meritorious to do so.
Neither party is in receipt of assistance by way of legal aid and accordingly this consideration is not relevant.
In her submissions, the wife is vociferous in her criticism of the husband’s conduct in contacting the media and placing the wife and the child under intense public scrutiny. It is submitted that both the resultant media attention and the husband’s promotion of same was entirely unwarranted. Whilst I accept the wife’s submission in that respect, the involvement of the media occurred prior to the filing of the initiating application of the husband. It is a more relevant consideration that I have found the husband’s application to be without merit. There was no mystery or uncertainty in respect of the state of the proceedings in Malaysia. The husband knew of the circumstances by which the wife and child were in Australia and for him to allege that the child was the victim of an abduction is entirely without support on any objective basis. It is not overly emotive to suggest that the husband’s conduct is “vexatious”.
The husband withdrew his application not because of any concession by the wife but because his application lacked merit. In terms of the uncontroversial history, the husband has made demonstrably false allegations in respect of the wife and I agree with the submission of counsel that his assertions were “baseless”. For her part the wife did not seek any final orders but did seek that the order made 5 June 2014 be discharged.
The withdrawal of the proceedings enables the Court to find that the husband has been wholly unsuccessful pursuant to s 117(2A)(e) of the Act. The balance of s 117(2A) is not applicable and does not require further consideration.
Accordingly, I find that the wife’s application for costs has merit and an order should be made requiring her costs to be paid by the husband.
INDEMNITY COSTS
Whilst tempered by the manner in which the wife’s solicitors have calculated her costs, the wife seeks an order that her costs be paid on an indemnity basis.
The explanatory guide to the Rules has been accepted by the Court as an accurate definition of “indemnity basis”; namely:-
An entitlement to costs, including costs under a costs agreement, for all costs incurred, other than costs that are unreasonable in amount or that have been incurred unreasonably.
The discussion of the Full Court in Prantage & Prantage (2013) 49 Fam LR 197 is of considerable assistance in determining whether and in what circumstances an order for indemnity costs should be made. The Court referred extensively to the decision of Kohan & Kohan (1993) FLC 92-340 in which it was noted that whilst there is nothing in the Act which in any way “inhibits” a consideration of indemnity costs, the following is said at page 79,605:-
…it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure from the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties. This impact is a relevant matter to which the trial Judge should have had regard, when considering the financial circumstance of each of the parties to the proceedings under s117(2A)(a), or perhaps even more as a relevant matter under paragraph (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.
In Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151, Cooper and Merkel JJ said:-
The issue whether costs should be ordered on a party and party basis or on an indemnity basis has acquired increasingly greater significance as the gap between the two bases appears to have grown.
The gap has highlighted the conflict between two seemingly irreconcilable objectives. The first is protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis. The second is relieving a successful litigant from the burden of costs which that litigant should not have been required to incur. These and other policy factors have been considered by the courts over a very long period in order to arrive at the principles which govern the undoubted discretion of courts to depart from ordering costs on a party and party basis and ordering costs on an indemnity basis. The principles were stated by Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536;(1993) 46 FCR 225.
Whilst there has been judicial comment that the general or usual rule namely, that the Court should not depart from a costs order calculated upon a party party basis, nonetheless the balance between costs actually incurred for a litigant and the redress that reference to the scale may provide may now been unrealistic and inequitable..
It is reasonably well settled in this Court that the circumstances will be rare before deviating from the application of the usual rule and order costs to be paid on an indemnity basis. In Prantage (supra) the Full Court said at [97]-[98]:-
In our view, once it is recognised that ensuring access to justice is one of the key objectives of the “usual rule”, the claimed increasing disparity between scale costs and those being charged by lawyers becomes as much an argument against the awarding of indemnity costs as it is in favour of costs being ordered on that basis.
With respect to the trial Judge, we are not convinced that there is a great deal of difference between current “commercial realities” and those prevailing at the time Kohan was decided. It should be noted that the costs agreement in Kohan provided for a rate of payment three times in excess of the scale. However, even if there have been changes in the market place for legal services, we are not persuaded this should have any impact on the application of the “usual rule” which seeks to balance competing public policy considerations.
The Court also considered other matters which might be relevant to the determination of the basis upon which costs should be ordered, highlighting that it is the party’s conduct as a litigant and not in respect of any past and/or antecedent behaviour.
Taking into account his submissions, I am not now convinced that the manner in which the husband has conducted the litigation would in and of itself justify an order to be made on an indemnity basis.
CALCULATION OF COSTS
Annexure A to the wife’s affidavit filed 14 November 2014 annexes the costs agreement entered into by the wife. Whilst clearly in excess of the relevant scale, it could not be said that the agreement demonstrates an excessive departure from the scale costs. Annexure B to the said affidavit is a schedule which sets out the fees on an itemised basis representing a total of $46,124. The wife’s solicitors however have calculated on the basis of a fee discount of $16,843 against the fees that they were entitled to charge pursuant to the costs agreement. The summary is that the wife seeks legal fees of $21,175 which is $1,340 (plus GST) more than the wife’s costs as if they were calculated on a party party basis namely, $19,835. Additionally, there were counsel fees which totalled $12,828 which were the subject of discount to $8,575. It would appear that counsel fees including GST has been charged in accordance with the scale but subject to a further discount. There would appear to be no adverse contention in relation to disbursement costs involving the costs of translation of Malaysian court documents.
Accordingly, the wife seeks a total amount of $33,998. Calculated on a party party basis the amount is $32,655. It is argued by her that in reality her total costs were $46,124, but it is only as a result of the substantial discount given that the lesser figure is now claimed.
Prior to the further affidavit and submissions by and on behalf of the husband, I had formed the view that his behaviour as a litigant was demonstrably vexatious in circumstances where at all material times he clearly understood the basis upon which the wife and child were in Australia and that there were either orders made in the Malaysian Court or there were no orders preventing the wife’s temporary residence in Australia. As indicated, I consider that there was no basis for the husband to allege that the child had been “abducted”.
The husband however asserts that whilst demonstrably wrong, his actions were not vexatious in that he was acting upon legal advice which ultimately turned out to be negligent and demonstrably wrong. Once he obtained competent advice from solicitors in Malaysia but perhaps more importantly those in Australia, he readily abandoned the proceedings. I accept the initial appearance of the husband’s conduct as vexatious may not now necessarily be the case.
Nonetheless, the wife has been put to considerable and significant expense and whatever the inadequacies of the husband’s legal advice may have been, with hindsight his application was doomed to fail from the first moment of instigation.
Whilst I am entitled to find some confidence in the manner in which the wife’s solicitors have itemised her account based upon party party costs and the scale, I think in all the circumstances it is reasonable to bring to account as a counter-veiling feature the reality of the husband’s financial position and his assertion that he was not acting with malicious or vexatious intent but rather, upon poor and inadequate advice.
CONCLUSION
Accordingly and in the circumstances, I consider it appropriate to reduce the party party costs of the wife in the sum of $32,658 by 20 per cent leaving an amount for costs fixed in the sum of $26,126. The wife seeks an order that the costs be paid within 28 days, but again taking into account the poor financial position of the husband and without any further submission from him in that regard, I propose to extent time for the husband to pay the wife’s costs to 90 days from the date of this order.
I make orders as appear at the commencement of these reasons.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 March 2015.
Associate:
Date: 12 March 2015
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Costs
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