Nghiem and Truong and Ors (No 2)
[2012] FamCA 417
•6 June 2012
FAMILY COURT OF AUSTRALIA
| NGHIEM & TRUONG AND ORS (NO 2) | [2012] FamCA 417 |
| FAMILY LAW – COSTS – Application dismissed |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr S Nghiem |
| 1ST RESPONDENT: | Ms Truong |
| 2ND RESPONDENT: | Ms Luong |
| 3RD RESPONDENT: | Mr D Nghiem |
| FILE NUMBER: | MLC | 4291 | of | 2011 |
| DATE DELIVERED: | 6 June 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | By way of written submissions |
SUBMISSIONS RECEIVED FROM
| SOLICITOR FOR THE APPLICANT: | Moores Legal |
| SOLICITOR FOR THE RESPONDENT: | Berger Kordos Lawyers |
Orders
That the application for costs filed on 7 May 2012 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nghiem & Truong and Ors (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 MELBOURNE |
FILE NUMBER: MLC 4291 of 2011
| Mr S Nghiem |
Applicant
And
| Ms Truong |
1st Respondent
And
| Ms Luong |
2nd Respondent
And
| Mr D Nghiem |
3rd Respondent
REASONS FOR COSTS JUDGMENT
On 4 May 2012 I made orders under s 90RD of the Family Law Act 1975 (Cth) (“the Act”) declaring that the litigants had been in a de facto relationship. In addition to those orders, I made provision for either party to make an application for costs arising out of the proceedings.
By application filed 7 May 2012, the successful applicant filed an application for costs against the first respondent who was unsuccessful in the proceedings. By written submission filed 21 May 2012, the respondent filed a submission in reply.
It is not in dispute that the governing provision relating to costs lies in s 117 of the Act.
The applicant seeks costs based upon the additional argument arising out s 117AB and the respondent’s position is that if such an order was made, because of the discretionary nature of the order, it should be limited to one dollar.
Section 117AB applies if there are proceedings before the Court and the Court is satisfied that a party to proceedings knowingly made a false allegation or statement in the proceedings and if such a finding is made, the Court must order that that party pay some or all of the costs of another party or other parties to these proceedings.
If I accept that s 117AB applies, the discretionary determination referred to in s 117(1) and (2) otherwise does not apply and an order must be made.
The basis upon which the application under s 117AB is made by the applicant arises from the findings in the reasons for judgment.
In Charles and Charles [2007] FamCA 276 I noted that the word “knowingly” required a finding that the person lied. There is a distinction between a finding that a person has lied and one in which a determination is made about a particular incident based on the balance of probabilities.
Turning to the reasons for judgment, the relevant paragraphs are 6, 7, 34, 37, 40 and 87.
In paragraph 6 it was the parties who agreed that the outcome of the case would be determined upon a finding of who was telling the truth and as I pointed out in paragraph 7, there could be no room for subjectivity or uncertainty because the people were talking about the same set of facts. It was in fact the parties who indicated the other was lying.
In paragraph 34 of the reasons, I indicated that the evidence of the applicant on the issue of his financial details concerning his bankruptcy was implausible. In paragraph 37, I noted that the applicant conceded he had lied to his trustee in bankruptcy but I was unable to find any evidence about whether he had lied to a federal magistrate who heard a case arising out of the bankruptcy.
I made a similar finding in respect of the applicant’s evidence about violence indicating that it was corroborated and his response in evidence convinced me that his credit was not worth much.
At paragraph 87, I found as a conclusion on all of the evidence that on the balance of probabilities there was a de facto relationship.
I have not made a finding consistent with the definition that I gave in Charles and Charles (supra) and even though the parties clearly indicated that their respective positions was that the other was lying, I determined the matter on the balance of probabilities.
In my view, I cannot go outside those findings and without such a finding as would satisfy me that the respondent deliberately lied, the provisions of s 117AB are not triggered. It will be noted that ironically, my expressions of concern about plausibility as indicated above relate more to the applicant for these costs. Considering those findings, I could not make an order under s 117AB against the applicant even though such an order is not sought. Section 117AB is a mandatory provision but in any event, despite having serious doubts about the evidence of the applicant for costs, I have not made a finding such as to activate s 117AB against him. Those findings however must affect the discretion about costs. That must be so because of the fact that considerable time was spent on the issues about which I made adverse findings concerning him.
Accordingly, the costs application is to be determined on the basis of the provisions of s 117 of the Act.
Section 117(1) provides that each party in proceedings shall bear their own costs subject to some exceptions. If the Court is satisfied that there are justifying circumstances to depart from the principle then subject to considering the matters set out in s 117(2A), an order can be made.
The major reason for the costs application is because it is asserted that the respondent to the costs application had lied. I reiterate that I made the determination on the balance of probabilities.
Costs in this jurisdiction do not follow the event as they do in many civil jurisdictions. Costs are also intended not as a punishment but rather as compensation for the fact that a person has to participate in those proceedings and incurs the costs accordingly. In this case, whilst I have found against the respondent to the costs application, the case was extended not just because of the number of witnesses involved but also because of the fact that credibility was an issue for both parties. Each party therefore contributed to the extended duration of the proceedings. It is submitted on the behalf of the applicant that the criticisms I made of the applicant about his honesty do not affect the costs application. Having regard to the fact that this is a discretionary judgment, I am entitled to take into account under s 117(2A) any other factor that may be relevant to the proceedings. It is often said that the person who comes to equity seeking justice must come with clean hands. It would be hard in this case to find that the applicant has clean hands even though he was successful.
I do not know the financial circumstances of the parties. The conduct referred to in s 117(2A) relates to the conduct of the proceedings and I reiterate the remarks I have just made about how both parties extended the duration of the hearing. Whilst it is said that the applicant for costs has been successful and the respondent wholly unsuccessful, that is only one of the factors to be taken into consideration particularly in circumstances where the matter was determined on the balance of probabilities. I am not informed of any legal aid considerations so each of the parties must be seen to be reasonably financial despite their past assertions about impecuniosities and bankruptcy.
In my view this is a case where there is no justification for making an order for costs at all having regard to the behaviour of both parties and I decline to do so.
I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 June 2012.
Associate:
Date: 6 June 2012
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