Osman & Caspar (by his litigation guardian Caspar) (No 2)

[2024] FedCFamC1F 783

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Osman & Caspar (by his litigation guardian Caspar) (No 2) [2024] FedCFamC1F 783

File number(s):

BRC 11058 of 2019

Judgment of:

BAUMANN J

Date of judgment:

19 November 2024

Catchwords:

FAMILY LAW – COSTS – Where some Court events may justify an order for costs, but seen holistically in terms of the proceedings as a whole journey, the Court is not satisfied it would be just to make any order for costs – Order made that there be no order as to costs   

Legislation:

Family Law Act 1975 (Cth) s 117

Cases cited:

Osman & Caspar (by his litigation guardian Caspar) [2023] FedCFamC1A 237

Osman & Caspar (by his litigation guardian Caspar) [2024] FedCFamC1F 441

Division:

Division 1 First Instance

Number of paragraphs:

21

Date of last submission/s:

26 September 2024

Date of hearing:

On the papers in chambers

Place:

Brisbane

Solicitor for the Applicant:

Simonidis Steel Lawyers

Solicitor for the Respondent:

CIF Lawyers

ORDERS

BRC 11058 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS OSMAN

Applicant

AND:

MS CASPAR AS LITIGATION GUARDIAN FOR MR CASPAR

Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	19 NOVEMBER 2024

THE COURT ORDERS:

1.That there be no order for costs, including reserved costs.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Osman & Caspar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

1. On 27 June 2024, the Court delivered Reasons (see Osman & Caspar (by his litigation guardian Caspar) [2024] FedCFamC1F 441) and made orders in respect of disputed property proceedings between the Applicant wife and the Respondent husband – although the husband’s interests were represented by his mother, Ms Caspar, as the husband’s Litigation Guardian.

2. At [7]–[21] of the Reasons, a succinct history of the nearly 30-year relationship was recorded, followed by a procedural history (at [22]–[29]).  I remarked that whilst the wife had commenced proceedings in 2019, the litigation had three previous trial listings, before a transfer to Division 1, and then a hearing conducted before me on 28 May 2024.  At [25], I noted that at the commencement of the trial, I made a ruling when confronted by voluminous material, that much of the material was not relevant to the trial issues – but could be relevant if an application for costs was pursued.  The wife was not, as a result, cross-examined on the husband’s allegations about her behaviour said to evince delay and a costs sanction.

3. Order 20 made 17 July 2024 provided a timetable for the determination by the Court of any costs application.  In respect of that timetable, the Court has received and has considered:

   (a)the husband’s costs submissions emailed to chambers on 16 August 2024, including a 102 page tender bundle;

   (b)the wife’s submissions in response filed 12 September 2024; and

   (c)the husband’s submissions in reply filed 26 September 2024.

   THE LAW

4. The principles that guide the exercise of discretion when considering a costs application are well settled. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that the general rule is for each party to bear their own costs for proceedings under the Act.

5. The Court may, if circumstances justify an order for costs, make such order as is just and, in doing so, is required to consider the factors set out in s 117(2A). If the Court is satisfied that the circumstances justify an order for costs, then the Court has a discretion to order costs be taxed or otherwise assessed or fixed in an amount. The Court may also order costs be payable on an indemnity basis.

   ORDERS SOUGHT

6. The husband, through his Litigation Guardian, seeks orders for costs as follows:

   (a)In relation to the Application in a Proceeding heard 16 June 2022 – $3,463 (on a party/party basis);

   (b)In relation to the Application in a Proceeding heard 22 June 2022 – $11,229.50 (on an indemnity basis);

   (c)In relation to the Application in a Proceeding heard 28 July 2022 – $5,333 (on an indemnity basis);

   (d)In relation to the trial listed 16 February 2023 – $33,671.50 (on an indemnity basis);

   (e)In relation to the trial listed 22 May 2023 – $30,586 (on an indemnity basis); and

   (f)In relation to the Application in a Proceeding heard 25 July 2023 – $36,364.50.

7. In the alternative, if costs are assessed on a party and party basis, the costs total $53,531.60.

8. The husband does not seek any costs in respect of the preparation for and conduct of the final hearing before me on 28 May 2024.

9. In response, the wife says that the husband’s Application should be dismissed with no order as to costs.

   DISCUSSION

10. It is apparent that the primary submission on behalf of the husband relies upon a finding sought that the wife “unreasonably opposed repeated applications in which the Respondent was ultimately successful, and caused two trials to be thrown away for non-compliance with prior Orders”.

11. For context, every event which the husband now seeks to assert a costs order (however quantified) was an interlocutory Application dealt with by either a Division 2 Judge or a Senior Judicial Registrar or a listed trial.  I Have no transcripts of any such events – which total seven out of 19 Court events.  There is no indication in the Orders made that the judicial officer at the time had an inclination to make any order for costs in favour of or against a party save as noted below.  Reserving costs, as was ordered, merely puts the assessment (both as to liability and quantification) off to a later day – usually the final hearing.

12. Frankly, with some of these events going back to June 2022, it would have been preferrable for any application for costs to not only be pressed at the time, or pursued before the judicial officer who made the subject orders and was at the time seized of the facts pertaining to the Application, being considered.

13. Although no specific s 117(2A) factor is determinative, when the primary application is that the wife’s behaviour or conduct is the most significant factor, context to every decision becomes important. I say this in circumstances where:

    (a)neither of the parties’ financial circumstances is markedly different, when one considers the Reasons for Judgment after the final hearing.  The wife has chosen to borrow extensively to enable her to retain both real properties;

    (b)neither party was in receipt of legal aid;

    (c)the proceedings were not necessitated by the failure of a party to comply with previous Orders, save to the extent identified below; and

    (d)the Applicant does not rely on any offers made, although the wife made some written offers leading up to the final hearing.  The husband continued to assert contributions as equal, not a finding made by the Court.  However, with neither party seeking costs of the trial, further exploration of these “pre-trial” offers is of no real assistance.  At best, the wife submitted that her “success was comparatively greater than the husband’s”.  None of these submissions, be either party, escalates to a submission that a party was wholly unsuccessful.

14. With this general overview, the Court now turns to the actual “costs events”, identified by the husband:

    (a)First return – Application for valuations and release of funds – 16 June 2022 – the Orders reveal that the parties consented to the appointment of a single expert.  Thereafter, interim Orders were made by Judicial Registrar Foley listing the matter for an interim hearing before a Senior Judicial Registrar on 22 June 2022, noting the sole issue for determination at the interim hearing was with respect to a release of funds.  Noting the submissions of the husband at paragraphs 8 to 13, I am not satisfied the circumstances justify a costs order;

    (b)Interim hearing – Application to release funds – 22 June 2022.  The Orders reveal the husband’s application filed 7 June 2022 sought that each party receive $16,678.25 from monies held in trust.  At the interim hearing, both parties were represented by a solicitor.  The order sought by the husband was made, with costs reserved to the trial judge.  The husband’s consent to that order was clear in his solicitor’s letter of 3 June 2022.  It is not clear why the wife did not consent to the order for release earlier – save that her solicitor’s letter of 18 May 2022 indicated the wife agreed to a distribution of $30,000 each.  On this basis, prima facie, the attendance by electronic means on 22 June 2022 was unnecessary.  In my view, there are circumstances which justify an order for costs, but the Court still needs to consider whether it is just to do so.  The Senior Judicial Registrar reserved costs to the trial;

    (c)The first trial before a Division 2 Judge listed to begin on 4 July 2022 did not proceed.  The reasons it did not proceed are not clear.  Neither party seeks an order for costs for the adjournment of the hearing, however the husband was aware that the matter had a directions hearing on 28 July 2022, and filed an Application on 20 July 2022 seeking that the funds remaining in trust ($114,804.70) be released and divided between the parties equally.  It is unclear how the matter became an interim hearing (when it appeared to be a directions hearing), however the Judge dealt with the Application in a Proceeding filed 20 July 2022 and ordered the release of funds.  On this occasion, some indication of the Judge’s view can be gleaned by the fact that his Honour reserved the husband’s costs in respect of the Application in a Proceeding.  On the same day, the Judge listed the matter for hearing again, for two days commencing 7 September 2022.  From this chronology, I find prima facie that there are circumstances which justify an order for costs, but the Court needs to still consider whether it is just to do so;

    (d)14 days after the appearance before the trial Judge dealt with the matter on 28 July 2022, the husband, on 11 August 2022 (some 27 days before the trial was to commence), brought an Application seeking the wife be restrained from filing further material.  It is to be recalled that the trial Judge had made a direction that the wife file her material by 4 August 2022.  In my view, the Application in a Proceeding by the husband could not be justified – even if his Honour had not made the order he did.  The trial Judge was perfectly empowered at the trial to either allow late material or not.  In my view, the circumstances do not justify an order for costs of the Application in a Proceeding filed 11 August 2022;

    (e)Although the trial was to begin on 7 September 2022, for reasons unknown to me, the matter did not proceed on 7 September 2022 but apparently was rescheduled to proceed on 16 February 2023.  I note that his Honour’s Orders of 29 August 2022 noted that “the Court will hear submissions on the first day of trial as to whether the matter proceeds on an undefended basis or as a defended hearing on the evidence currently before the court”.  Although in submissions at paragraph 32 to 40 the husband gives a chronology of why he says the trial did not proceed (even as an undefended matter) on 16 February 223, the Orders reveal that issues of disclosure arose.  I do not have the benefit of any reasons by the trial Judge for again adjourning the trial (to 22 May 2023) or why Orders 1 and 2 were made for both parties to confirm disclosure that had been made, but note his Honour again permitted each party to file a consolidated affidavit of their evidence in chief and made further directions.  At Order 5, his Honour ordered each party’s costs were reserved.  I cannot be satisfied that both parties were not partially at fault for the matter then proceeding to another trial.  If his Honour was satisfied that a party had not complied with directions, then he was empowered to proceed as a result of the parties’ default.  I infer, in the absence of any reasons, that his Honour did not do so for good reason.  Both parties were represented by Counsel on 16 February 2023, and therefore each party bore their own costs of that trial.  I am not satisfied that circumstances justify an order for costs for the adjournment of the trial on 16 February 2023;

    (f)Again, the trial (the fourth listing) did not proceed, apparently because the trial Judge, noting the wife had filed her trial affidavit one day late on 1 April 2023, did not believe the trial could proceed.  He adjourned the trial to 18 October 2023 and ordered the wife to file a fresh affidavit.  The trial Judge also gave the husband leave to file a further affidavit.  His Honour ordered the parties file further updated case outlines.  The Counsel who appeared before the trial Judge on 22 May 2023 were the same Counsel who appeared on 16 February 2023.  Again, no reasons for his Honour’s decision to again adjourn the trial were given to me, with each party’s costs reserved (Order 12).  The husband says (at paragraph 43 of the written submissions) that the trial judge indicated “it would not be in the interests of procedural fairness to proceed without material from the Applicant which may otherwise give rise to an appeal”.  I must admit to a sense of confusion as to why the trial did not proceed – noting it was again listed for hearing commencing on 18 October 2023.  As we all know, the matter went off course after a serious incident occurred in mid-2023 (see paragraph 26 of my earlier Reasons for Judgment).  I am not satisfied that circumstances exist to justify an order for costs for the adjournment of the trial on 25 May 2023;

    (g)After the event in mid-2023, the lawyers for the husband facilitated the husband’s mother making an Application on 10 July 2023 to the Court for orders for her appointment as Litigation Guardian; urgent spouse maintenance for the husband and a further order restraining the wife from filing material. The wife opposed the appointment, which his Honour made, and, strangely, other applications not dealt with were listed for an interim hearing on 29 September 2023 before a Senior Judicial Registrar. On 29 September 2023, a Senior Judicial Registrar made an order dismissing some of the relief sought by the wife in her Response to an Application in a Proceeding, but for reasons not clear, a number of applications listed for interim hearing were not dealt with or were the subject of further directions. At the least the husband was pressing for orders for spouse maintenance, yet he was out of time and needed leave pursuant to s 44(3) of the Act. He never ultimately pressed his application.

15. Again, I am not satisfied that circumstances justify an order for costs for the hearing on 29 September 2023.

16. To finish this obviously chaotic case management pathway, the wife filed and proceeded with an appeal against the Order of Judge Lapthorn appointing the husband’s mother as his Litigation Guardian.  On 22 December 2023, the Full Court consisting of a single judge dismissed the appeal.  No order for costs were made in respect of the appeal (see Osman & Caspar (by his litigation guardian Caspar) [2023] FedCFamC1A 237).

    CONCLUSION

17. As I indicated during the final hearing I conducted, the tragedy in this matter was how much wasted time and costs were incurred in properly dealing with the actual issues.  The costs both parties incurred, as noted in their costs notices for the trial, were entirely disproportionate to the issues – as became apparent when the evidence at the trial through cross-examination was completed in less than half a day.

18. The husband’s conduct in mid-2023 cannot be ignored.  It further delayed the proceedings.

19. Although I have found some Court events may justify an order for costs, seen holistically in terms of the proceedings as a whole journey, I am not satisfied it would be just to make any order for costs.

20. I regard it as proper that each party bear their own costs.

21. The Court’s order, at the commencement of these Reasons, is that there be no order for costs, including reserved costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       19 November 2024