Massalski & Riley (No 4)
[2022] FedCFamC1F 832
•28 October 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Massalski & Riley (No 4) [2022] FedCFamC1F 832
File number(s): SYC 496 of 2015 Judgment of: HARPER J Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – COSTS – Husband seeks costs of proceedings since 24 December 2019 – Where orders for costs had previously been made for the proceedings up to 25 May 2020 – Wife recommenced proceedings in 2021 seeking final property orders be varied – Where wife has subsequently filed numerous interim applications seeking to impugn previous orders – Orders previously made summarily dismissing wife’s applications and declaring wife a vexatious litigant – Wife continues to refuse to accept the principal of finality – Costs ordered on indemnity basis. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Atkins & Hunt (Costs) [2017] FamCAFC 131
Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) and TRF and LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Han & Ngo [2021] FamCAFC 97
Harris & Dewell (No 2) (2018) FLC 93-863; [2018] FamCAFC 180
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Massalski & Riley (2022) 65 Fam LR 73; [2022] FedCFamC1F 36
Massalski & Riley (No 2) [2021] FamCAFC 152
Massalski & Riley (No 3) [2022] FedCFamC1F 562
Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Prantage & Prantage (Costs) [2014] FamCA 850
Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Sfakianakis & Sfakianakis (2019) 59 Fam LR 419; [2019] FamCAFC 54
Vlug v Poulos (1997) FLC 92-778; [1997] FamCA 47
Worth & Worth (No 2) [2019] FamCAFC 126
Division: Division 1 First Instance Number of paragraphs: 65 Date of last submission/s: 14 October 2022 Date of hearing: On the papers Place: Sydney The Applicant: Self-represented litigant Solicitor for the Respondent: Byrnes Legal ORDERS
SYC 496 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MASSALSKI
Applicant
AND: MR RILEY
Respondent
order made by:
HARPER J
DATE OF ORDER:
28 October 2022
THE COURT ORDERS THAT:
1.The Applicant Wife, Ms Massalski (“the wife”) pay the costs of the Respondent Husband, Mr Riley (“the husband”), assessed on an indemnity basis, of the following applications:
(a)Application in a Case filed by the wife on 27 May 2021;
(b)Application in a Case filed by the husband on 28 July 2021;
(c)Initiating Application and Application in a Case filed by the wife on 10 August 2021, and the summary dismissal proceedings; and
(d)Application in a Proceeding filed by the wife on 3 December 2021.
2.The Response filed by the wife on 6 October 2022 be dismissed.
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 Massalski & Riley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are property proceedings between the Applicant Wife, Ms Massalski (“the wife”) and Respondent Husband, Mr Riley (“the husband”).
I have delivered several judgments in this matter. The relevant procedural history and background to the proceedings are set out in Massalski & Riley (2022) 65 Fam LR 73 (“Massalski”) at [2]–[14]. I will not repeat what I have said there unless necessary for this judgment. In summary, the wife commenced proceedings on 10 August 2021 seeking to set aside final property adjustment orders made in 2019, and further property adjustment orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). On 4 February 2022, I summarily dismissed the wife’s application for final orders, together with numerous outstanding interim applications.
The husband also sought orders declaring the wife to be a vexatious litigant. This application was determined and judgment delivered on 5 August 2022: Massalski & Riley (No 3) [2022] FedCFamC1F 562. The wife was declared vexatious.
On 4 February 2022, I also made orders for the parties to file written submissions concerning their costs for the following applications, in the event they sought costs:
(a)Application in a Case filed by the Applicant on 27 May 2021;
(b)Application in a Case filed by the Respondent on 28 July 2021;
(c)Initiating Application filed by the Applicant on 10 August 2021 and the summary dismissal proceedings; and
(d)Application in a Case filed by the Applicant on 3 December 2021.
The husband filed written submissions on 3 March 2022 seeking indemnity costs against the wife. However, no application for costs was determined at that point, in view of further outstanding interim applications which were yet to be determined, and the Court’s expectation that further applications for costs would be made.
On 23 August 2022, the husband filed an Application in a Proceeding seeking costs on an indemnity basis against the wife. Orders were subsequently made for the filing of material, with the application being heard in chambers and on the papers.
ORDERS SOUGHT AS TO COSTS
By way of his Application in a Proceeding filed on 23 August 2022, the husband seeks the following orders:
1. That [Ms Massalski] pay the costs of [Mr Riley] of the proceedings and all applications by her that have been filed by her after 24 December, 2019 which have been dismissed.
2. That such costs be agreed or assessed on an Indemnity basis.
In her Response filed on 6 October 2022, the wife seeks:
l. That the Respondent pay the costs of the Applicant of the proceedings held on 9 October 2017, in relation to the application for partial property distribution which was dismissed by the orders made on 4 December 2017.
2. That the Respondent files a sworn affidavit providing a table showing the amounts of rental income received from the property at [Unit 2, F Street, Suburb G] in the period when the property was occupied by his father and in the period when the property was rented out through [AJ Estate Agents].
3. That [Mr ZZ] provides disclosure of the identity of the cost consultant who prepared his bills submitted to the Family Court for assessment in relation to the proceeding SYC 496 of2015 and proceeding […] together with copies of Tax Invoices issued by such consultant.
4. That [Mr ZZ] provides a cost disclosure agreement in relation to the services provided to [Mr Riley] in the proceedings related to the Family Law matter and in relation to the Supreme Court matter […].
5. That leave be granted for the Applicant to file an Application in a Proceeding to seek stay of the orders related to the appointment of the receiver.
In orders dated 25 August 2022, I granted leave to the wife to file any affidavit in response to the husband’s costs submissions, by no later than 6 October 2022. The wife filed two affidavits, one on 6 October and the other on 10 October. As the latter was filed out of time, and she sought no dispensations for late filing, I will have no regard to this affidavit.
The husband sought the costs of all applications filed by the wife since 24 December 2019, however McClelland DCJ ordered on 25 May 2020 that the wife pay the husband’s costs of the proceedings from 24 February 2017 up to that date. Therefore, since 25 May 2020, the wife has filed the following applications:
(a)Application in a Case filed on 1 December 2020. This was dismissed on 22 December 2020;
(b)Application in a Case filed on 18 January 2021. This application was dismissed by McClelland DCJ on 5 March 2021 with no order as to costs;
(c)Two Applications – Contempt filed on 10 May 2021. These were dismissed on 5 August 2022 in Massalski (No 3);
(d)Application in a Case filed on 27 May 2021. This was summarily dismissed;
(e)Application for Final Orders filed on 10 August 2021. This was summarily dismissed;
(f)Application in a Case filed on 10 August 2021. This was summarily dismissed; and
(g)Application in a Proceeding filed on 3 December 2021, which was also summarily dismissed.
According to the Court file, the husband did not file any material in respect of the wife’s two contempt applications, nor in respect of her Application in a Case filed on 1 December 2020. Therefore, there will be no order as to costs for those three applications.
The remaining applications for which the husband seeks costs are therefore those set out at [10](d)–(g), which were summarily dismissed by me in Massalski on 4 February 2022.
THE LAW
The relevant principles with respect to costs are well settled, and have been discussed by the Full Court in Parke & The Estate of the Late A Parke (2016) FLC 93-748, followed in Atkins & Hunt (Costs) [2017] FamCAFC 131. The Court has a wide discretion, which is to be exercised judicially.
In proceedings to which the Act applies, the starting point is that each party shall bear his or her own costs: s 117(1). If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just: s 117(2).
When considering what, if any, order for costs should be made, the Court must have regard to the factors set out in s 117(2A):
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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 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;
(d)whether the proceedings 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 matters as the court considers relevant.
It is well settled that no one factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient; Prantage & Prantage (Costs) [2014] FamCA 850 at [12]; PBF as Child Representative for AF (Legal Aid Commission of Tasmania) and TRF and LKL (2005) 33 Fam LR 123 at [41].
The Full Court in Moorcroft & Moorcroft (2020) 60 Fam LR 361 confirmed that indemnity costs are awarded only in exceptional circumstances (see also Kohan and Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No 2) (2010) FLC 93-435).
The first question is whether the husband has established any circumstances which justify departing from the position that each party pay their own costs, and the making of a costs order in his favour. The second question is whether, if there are circumstances justifying a costs order, the wife should pay the husband’s costs on a basis, such as indemnity costs, other than costs as agreed or assessed on a party/party basis.
DISCUSSION
Section 117(2A)(a) – the financial circumstances of the parties
The husband gave evidence of his financial circumstances, namely that he has ownership of a property located at Unit 1, F Street, Suburb G, with a value of $1.1 million. The mortgage on this property has been fully discharged.
Previous costs orders against the wife in favour of the husband in this Court total approximately $315,000, which remain unpaid.
The husband submitted that the Court would be satisfied that the wife has financial capacity to meet the orders he seeks against her, referring to the Full Court in Han & Ngo [2021] FamCAFC 97 at [61]:
Certainly, the wife’s financial circumstances are relevant, but I do not accept that they are such that they should prevent an order being made. Apart from the fact that she will have funds to meet any order, there is ample Full Court authority that even impecuniosity is not a bar to an order for costs being made where there is a circumstance that otherwise justifies it (D & D (Costs) (No 2 (2010) FLC 92–435 ), as is the case here.
The wife disclosed no evidence about her current financial circumstances, either in her affidavit, submissions, or in reliance on a financial statement. There was no evidence that either party was impecunious or in some form of financial difficultly.
Section 117(2A)(c) – the conduct of the parties
The husband submitted that the applications and grounds argued by the wife were, in substance, either misconceived, an abuse of process, or both.
As outlined above at [10]–[12], only four applications filed by the wife remain relevant in respect of the husband’s application. All of these were summarily dismissed.
In respect of the wife’s application filed on 27 May 2021 seeking a stay of the costs orders of McClelland DCJ and a judicial registrar, I noted in Massalski at [148] that
… in truth, the wife’s outstanding application for a stay is also an abuse of process. The same application was heard and dismissed by McClelland DCJ on 5 March 2021. The wife’s refusal to accept her stay applications have failed offends the principle of finality, which applies to interlocutory applications as well as final determinations.
The husband argued that the wife had been on notice, since the Full Court delivered their judgment on 19 August 2021 (Massalski & Riley (No 2) [2021] FamCAFC 152) granting party/party costs in the husband’s favour, that she had no basis for her application for variation under s 79A, or rather, s 90SN of the Act. There, the Full Court noted that:
25. Finally, we feel it is incumbent on us to encourage the wife to take legal advice in relation to her s 79A application and to carefully consider whether the application should be withdrawn. She is already at risk of an adverse costs order in relation to it and the longer it continues (even if she withdraws and files afresh under Pt VIIIAB) and the husband’s costs mount, so too does the potential costs consequences for her.
I accept that the wife acted unreasonably in failing to withdraw her application under s 79A, or rather, s 90SN, which was the correct provision under which she should have filed. In this respect, I refer to Massalski, wherein I summarily dismissed this application as having no reasonable prospects of success. Furthermore, I refer to my findings at [130]–[131]:
130. … I conclude, like the Full Court, that the wife in truth refuses to accept the outcome of the proceedings before McClelland DCJ and the Full Court. While relying on the discussion above in full, I point in particular to the multiple applications the wife has brought since the final decision of McClelland DCJ. These betray this obdurate refusal, as does her continued and substantial reliance on circumstances which are clearly long past, including the purported claim of [Mr AK]. This is sufficient to warrant a conclusion that the wife wants to relitigate issues already finally determined, and the principles of finality and fairness operate to preclude her doing so, even if her claims had any merit, which I have found they do not.
131. But in addition and separately, for the same reasons, I draw the same inference as the Full Court, namely, that the wife’s multiple applications constitute “no more than a strategy which is designed to delay enforcement of the orders mounting up against her as long as possible”. This clearly brings the administration of justice into disrepute and requires dismissal of the wife’s applications as an abuse of process.
In relation to the wife’s applications filed since 25 May 2020, I accept the argument of the husband that they were misconceived and/or an abuse of process. I refer to my findings in Massalski (No 3), where I found that the wife satisfied the definition of a vexatious litigant pursuant to s 102QB of the Act:
67. I am satisfied that:
(a)the proceedings in this court the subject of the substantive judgment had no reasonable prospects of success and were an abuse of process;
(b)the wife has demonstrated habitual and persistent institution of proceedings which have often and consistently been determined against her;
(c)the wife has consistently failed to understand the principle of finality, in a range of different jurisdictions, including the Supreme Court of NSW, the Court of Appeal of NSW, the District Court of NSW, and this court, despite receiving explicit guidance from the Full Court on this question;
(d)the wife has persisted in maintaining or instituting proceedings beyond the point where a rational person would have “abandoned the field”;
(e)the proceedings instituted in this court, since her failed appeal, have moved from the unlikely to the ridiculous (adopting the phraseology of Perram J); and
(f)the wife’s persistent renewal of litigation on issues already adversely determined against her has been found in this court to be a strategy to avoid enforcement of orders against her, and generally pose a risk to the public interest by consuming and wasting the resources of this and other courts in a manner inimical to the administration of justice.
68.The evidence makes clear that for some eight years in multiple jurisdictions, the wife has habitually and persistently instituted proceedings which, as demonstrated by the equally persistent and habitual failure of those proceedings, generally lacked reasonable grounds. Clearly, at times the applications were no more than attempts to relitigate adverse outcomes which the wife just refused to accept. Proceedings in this and other courts have been dismissed as abuses of process, with Judge Olsson SC stating in Massalski v Riley & Anor (Unreported, District Court of NSW, 25 February 2022) that “The pleading in the present case is so similar to that of the earlier proceeding that I conclude that [the wife]’s conduct constitutes an abuse of process or alternatively is vexatious and oppressive.”
69.On the evidence, I am unable to form a view whether every proceeding instituted by the wife meets the definition of “vexatious”. However, it is not necessary to do so. Some of her proceedings may not meet the definition of vexatious, but the question here is whether the wife has frequently instituted vexatious proceedings in Australian courts and tribunals. I am satisfied she has done so.
The husband gave further evidence that since the judgment of 4 February 2022, Massalski, the wife has persisted in the same manner and refused to abide by orders for the payment of outstanding costs orders.
In addition, since the judgment of 5 August 2022, Massalski (No 3), the husband gives evidence that the wife has failed to cooperate with orders for the appointment of a receiver, and to comply with requests for information, such as the provision of details of a redundancy payout from her former employer in December 2021. I should also note here that the wife, in her response to the husband’s costs application, seeks leave to file an Application in a Proceeding to seek a stay of the orders related to the appointment of a receiver.
The wife’s submissions in relation to the conduct of the parties were remarkably unhelpful. Most of her written submissions were repetitive and dedicated to attempts to reopen previous applications, both in this Court and in other courts, which have been determined. She argued that the husband made groundless allegations against her concerning the operation of the strata, engaged in conduct that contributed to delays, and that he disproportionately accrued his own legal costs. This was said to have been done through pursuing ultimately unsuccessful issues, including two applications for partial property settlement and objections to the family law jurisdiction, causing unnecessary appearances and adjournments, failing to make adequate disclosure, and abusing court process by commencing a counterclaim in the Supreme Court of Victoria.
I note here that the husband seeks only the costs of applications filed by the wife since 24 December 2019. I have concluded that the relevant date is actually 25 May 2020. Arguments relating to partial property settlement and objections to this Court’s jurisdiction had no part to play in those applications, and are irrelevant, regardless of whether they are true.
I am satisfied that the wife’s conduct in these proceedings became egregious and would alone constitute a justifying circumstance for a costs order against her.
Section 117(2A)(d) – whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The husband submitted that it was the wife’s failure to comply with previous orders of this Court which necessitated his seeking of orders dismissing the wife’s application for a stay of costs orders and her application to restrain the sale of Unit 2 F Street, together with restraints against her interference with this sale, and an application for the charge over the property.
Further, it was argued that the wife’s application for a variation of the final property orders arose from the wife’s obdurate refusal to accept the final orders made on 24 December 2019 by McClelland DCJ.
I accept these arguments and refer to [26] above.
Section 117(2A)(e) – whether either party has been wholly unsuccessful
The wife was wholly unsuccessful with respect to her following applications, which were dismissed on a summary basis:
(a)Application in a Case filed on 27 May 2021;
(b)Application for Final Orders filed on 10 August 2021;
(c)Application in a Case filed on 10 August 2021; and
(d)Application in a Proceeding filed on 3 December 2021.
She submitted that she was not wholly unsuccessful, referring to Robinson & Higginbotham (1991) FLC 92-209 (“Robsinson”). It was argued that a reference to “wholly unsuccessful” means a situation “in which the proceedings as a whole have been unsuccessful.” The wife noted that proceedings are still on foot in the Supreme Court of New South Wales, and that this therefore means a finding cannot yet be made that she was wholly unsuccessful. I reject this argument. The wife was wholly unsuccessful in respect of the applications the subject of this costs judgment, and proceedings in any other court have no relevance.
In Robinson at 78,417, the Full Court noted that
… if a party has brought a proceeding in this court totally without any merit which is summarily dismissed, I would have thought that in those circumstances, para (e) would become of great weight and importance and it would be difficult in that case, unless there were some peculiar circumstances, to resist an argument that costs should be awarded against the unsuccessful party because that is what para (e) is all about.
This factor militates in favour of a costs order being made against the wife.
Section 117(2A)(f) – offers in writing
The husband referred to an email sent by his solicitor on 20 August 2021, following the delivery of the Full Court judgment, inviting the wife to consent to dismissal of her fresh application for final orders.
The wife argued that her rejection of two written offers, dated 23 December 2015 and 24 February 2017, were not unreasonable. Even if true, this is entirely irrelevant to the applications the subject of this judgment.
CONCLUSION ON JUSTIFYING CIRCUMSTANCES
Having regard to the wife’s conduct, the fact that the proceedings were necessitated by her failure to comply with previous orders, and that she was wholly unsuccessful in respect of her applications, I am satisfied that costs should be ordered against the wife for the following applications:
(a)Application in a Case filed by the wife on 27 May 2021;
(b)Application in a Case filed by the husband on 28 July 2021;
(c)Initiating Application and Application in a Case filed by the wife on 10 August 2021, and the summary dismissal proceedings; and
(d)Application in a Proceeding filed by the wife on 3 December 2021.
The question, then, is the basis upon which costs should be ordered.
INDEMNITY COSTS
The husband argues that the circumstances are such that the Court should award indemnity costs in his favour.
The award of indemnity costs in this Court has regularly been called a significant departure from the normal standard, rare, and requires something exceptional: Harris & Dewell (No 2) (2018) FLC 93-863, where the Full Court said:
23. In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”. In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
24. That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.
25. The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”
(Footnotes omitted)
The husband relied upon the judgment of Watts J in Coulter & Geraldine [2015] FamCA 287, citing Sheppard J in Colgate Palmolive Co and Anor v Cussons Pty Ltd [1993] FCA 801 (“Colgate Palmolive”), and the examples provided therein of the types of “exceptional circumstances” where indemnity costs may be awarded. These include:
(a)Action commenced or continued where a party, properly advised, should have known he had no chance of success;
(b)The making of allegations of fraud knowing to be false;
(c)Evidence of particular misconduct causing loss of time;
(d)The making of allegations which ought never have been made;
(e)The undue prolongation of a case by groundless contentions; and
(f)An imprudent refusal of an offer to compromise.
The Full Court in Worth & Worth (No 2) [2019] FamCAFC 126 emphasised that the above categories are not closed.
The husband submitted that the circumstances were extraordinary, such that the Court ought to award indemnity costs. The husband referred in particular to the Full Court’s warning to the wife of her potential liability for costs (see [26] above), a refusal to otherwise accept the comments of the Full Court in relation to her application under s 90SN, the findings made by me in relation to summary dismissal and declaring the wife a vexatious litigant, and the constant false allegations made by the wife, together with the resulting cost to respond in detail.
WIFE’S SUBMISSIONS
As noted above, the wife paid very limited detail to the provisions of s 117 and the husband’s application for costs. She referred instead to findings under s 102QB of the Act, citing the authority of Vlug v Poulos (1997) FLC 92-778, said to establish the prerequisites to an exercise of power to declare a party vexatious. The wife argued that because no finding had been made that her application under s 90SN was vexatious, there was no proper basis to restrain her from filing further applications. This finding was argued to have severely restricted her legal rights, and in circumstances where she was unable to appeal, it would be a denial of natural justice to make further costs orders against her. It was suggested that the Sydney Registry of this Court was notorious for awarding obscenely high legal costs. These assertions were made without any basis in any evidence she relied upon.
On 2 March 2022, the wife filed an appeal against the decision to summarily dismiss her application under s 90SN. The husband sought security for costs. She argued that the husband had no right to do so, and was creating unnecessary costs and abusing court process. But, her appeal was ultimately dismissed through failure to pay security for the husband’s costs of the appeal.
She then made groundless allegations against the Court of prejudicial treatment against her, referring to an order made on 2 February 2022 which restrained both parties from filing any further applications without leave of the Court. As the husband subsequently filed his application for costs on 24 August 2022 without seeking leave, this was said to demonstrate prejudice against the wife. However, she failed to note Order 15 of 5 August 2022, which specifically granted leave to either party to file an application for costs.
Finally, the wife submitted that the husband was not entitled to rely on previous costs orders which have been made, on the basis that she has shown them to have been made on an improper basis. She suggested that there be a review of the prior costs orders in a contested hearing. This is no more than an attempt to dispute the costs orders of McClelland DCJ and the judicial registrar, which she had already sought to do so in her Application in a Case of 27 May 2021, and again, highlights the extent to which the wife remains impenitent in her refusal to accept the principles of finality.
ORDERS SOUGHT BY THE WIFE IN HER RESPONSE
The wife’s response to the husband’s application did not simply oppose his application, but rather, sought a range of other orders which effectively amount to a fresh interim application. Order 2 made on 5 August 2022 prohibited the wife from filing further applications without leave of the Court.
The orders she seeks are set out at [8] above. A brief description of those orders will demonstrate why the wife should not be granted leave to bring the application.
Order 1 seeks that the husband pay her costs of proceedings which had been held on 9 October 2017. It clearly seeks to reopen a costs issue which had been finalised by McClelland DCJ on 25 May 2020. All costs of the initial proceedings were finalised on that date, and this judgment was not appealed.
The husband argued that Order 2 seeks to reopen and relitigate an adjustment of property between the parties, being the rental income received by the husband from Unit 2, F Street. This was a matter that again, had been comprehensively dealt with by McClelland DCJ.
Orders 3 and 4 seek to reopen costs assessment processes that took place in this Court and the Supreme Court of New South Wales. A judicial registrar determined the quantum of costs in this Court on 2 November 2020. The wife’s application for review was dismissed on 22 December 2020, and her subsequent attempt to raise it again on 5 March 2021 was again dismissed. Questions of costs in the Supreme Court of New South Wales are solely a matter for that Court.
Order 5 seeks leave to file an Application in a Proceeding for a stay of orders made on 5 August 2022 appointing a receiver.
The wife gives the clear impression that she does not intend to accept orders of the Court which she does not like. I am satisfied that she has failed to demonstrate any persuasive basis for granting leave for her application. Indeed, to do so will risk a further waste of Court resources.
CONCLUSION
I am satisfied that indemnity costs ought to be ordered against the wife. Her applications since 25 May 2020 were filed, and continued, in circumstances where if she had obtained legal advice, she ought to have known they would have no reasonable prospect of success. Her conduct caused a waste of court time, and caused the husband to unnecessarily incur costs.
The wife, in all her applications, sought primarily to relitigate matters which had been determined, and violated the principle of finality. This observation extends even to the bulk of her submissions in response to the husband’s costs application.
The husband did not specify the amount of costs sought.
The Court has power to fix a specific sum for costs. I accept the circumstances of this case make it desirable for a specific amount to be fixed, “so as to avoid the parties being involved in lengthy, contentious and expensive assessment of the costs”: Sfakianakis & Sfakianakis (2019) 59 Fam LR 419 at [37].
However, whilst I accept it would save the parties time and money to fix a sum, in the complex circumstances of this case and the absence of evidence from the husband, I do not have sufficient information to find a sensible basis for a fixed sum. Bearing in mind the likely quantum of costs which the husband will claim since 25 May 2020, it would provide a more just outcome if costs are assessed in the ordinary way according to the appropriate procedure.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 28 October 2022
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