Pachar & Mahal
[2023] FedCFamC1F 422
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pachar & Mahal [2023] FedCFamC1F 422
File number: PAC 3706 of 2021 Judgment of: BRASCH J Date of judgment: 25 May 2023 Catchwords: FAMILY LAW – COSTS – Where the wife sought to join the husband’s mother to the proceedings –Where the wife sought, in this Court, to stay a part heard trial in the Supreme Court of New South Wales and a transfer of those proceedings to this Court – Where wife contended this Court’s accrued jurisdiction permitted that interference with a separate Court – Where the wife unsuccessful – Where the proposed third party sought costs – Where the husband sought costs – Cost order made in favour of the proposed third party pursuant to Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Legislation: Family Law Act 1975 (Cth) ss 31, 117(1), 117(2), 117(2A), 117(2A)(a)-(f), 117(2A)(g)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.17(1)(a), 12.13(4)
Cases cited: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Harris & Dewell (No 2) (2018) FLC 93-863 [2018] FamCAFC 180
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
McAlpin & McAplin (1993) 114 FLR 452; (1993) FLC 92-411
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) 54 Fam LR 1; FLC 93-664; [2015] FamCAFC 157
Munday v Bowman(1997) 22 Fam LR 321; FLC 92-784
PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 191 FLR 294; [2005] FamCA 158
Prantage & Prantage (Costs) [2014] FamCA 850
Rankin and Rankin (No 3) [2019] FamCAFC 133
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; HCA 44 [1998]
Willmann & Willmann [2022] FedCFamC1F 232
Yunghanns v Yunghanns (2000) 26 Fam LR 331; FLC 93-029; [2000] FamCA 681
Division: Division 1 First Instance Number of paragraphs: 86 Date of last submissions: 15 May 2023 Date of hearing: 27 April 2023 Place: Sydney Counsel for the Applicant: Ms Hamilton Solicitor for the Applicant: Kailash Lawyers & Consultants Solicitor for the Respondent: Mihalatos & Associates Counsel for the Prospective Respondent: Ms Dart Solicitor for the Prospective Respondent: Goodwin & Co Lawyers ORDERS
PAC 3706 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PACHAR
Applicant
AND: MR MAHAL
Respondent
MS MAHAL
Proposed Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
25 May 2023
THE COURT ORDERS THAT:
1.Within fourteen (14) days of this Order, the applicant wife pay the costs of the proposed second respondent, Ms Mahal, in the sum of $12,727.20.
2.There be no order as to costs between the husband and wife of and incidental to the hearing on 27 April 2023.
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 Pachar & Mahal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
The substantive proceedings in this matter relate to parenting and property.
The applicant wife is Ms Pachar (“the wife”). The respondent husband is Mr Mahal (“the husband”). The paternal grandmother, Ms Mahal is the proposed second respondent (“the proposed second respondent”).
Two applications were listed before me for determination on 27 April 2023. Those applications were:
·The wife’s Application in a Proceeding filed 15 November 2022 to join the husband’s mother Ms Mahal as a party to the proceedings; and
·The interlocutory orders sought in the wife’s Amended Initiating Application filed 26 October 2022 seeking various orders including:
39. That provided procedural fairness has been afforded to any party affected by the orders sought herein, and pursuant to the accrued jurisdiction conferred upon the Court by s31of the Family Law Act 1975 (Cth), that there be:
a)a stay of any orders already made in the Supreme Court of New South Wales Plaint …;
b)a transfer of those proceedings to this Court;
c)that the Respondents pay the Applicant’s costs to date in the Supreme Court proceedings and those that have been incurred as a result of the transfer of those proceedings to this Court on a party-party basis as agreed or assessed. Any such cost to be paid by [Ms Pachar] upon receiving her property adjustment upon resolution of the parties’ property dispute.
·An asset preservation order against the husband (Order 34);
·The appointment of a forensic accountant as a Single Expert to determine the net amount of money, if any, said to be received by the husband from various sources;
·Parenting orders; and
·That:
31. Within 48 hours the Respondent Husband to transfer $263,500 in the Home Loan Account.
32. The Respondent Husband to transfer $263,500 to Applicant Wife. That the amount to be used for litigation funding, personal and living expenses.
33. In an alternative to above Order 27, that the Respondent Husband pay the Applicant Wife the sum of $120,000 or any other amount the Court deems reasonable as an interim property settlement to be used as litigation funding, personal and living expenses. That such payment will be brought into account by the Court as a partial property settlement upon the final resolution of these proceedings
Section 31 of the Family Law Act 1975 (Cth) (“the Act”) was repealed in 2021. The wife’s counsel foreshadowed an amendment to Order 39 (see above), but none was forthcoming. In any event, no one took technical issue with that.
The wife’s application for parenting orders did not proceed, as criminal proceedings were still outstanding. I did however make Consent Orders to progress the parenting by way of CDT testing, Family Therapy and securing a Family Report.
The money orders at 31 to 33 of interlocutory orders contained within the Amended Initiating Application filed 26 October 2022 were not pursued.
The application for a Single Expert was dealt with by an order directing the husband to provide the source documents for the transactions identified by the wife in her proposed interlocutory Orders 37.
I otherwise dismissed the wife’s:
(a)Application in a Proceeding filed by the wife on 15 November 2022 (the proposed joinder);
(b)The application relating to proposed Orders 34 (the assets preservation order) and 39 (that I stay, transfer and make costs orders relating to the part-heard trial in the New South Wales Supreme Court) of the Amended Initiating Application filed on 26 October 2022.
At the conclusion of the hearing counsel for the proposed second respondent sought costs. Counsel for the husband followed suit.
I declined to hear oral applications as to costs and instead made orders for written submissions; see Orders 26 and 27 of the orders made 27 April 2023 and Amended 28 April 2023.
On 5 May 2023, the husband and proposed second respondent filed written submissions.
The proposed second respondent sought costs of and incidental to her involvement in the applications before me on 27 April 2023 on an indemnity basis in the sum of $20,610, or, in the alternative, costs in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) fixed in the amount of $12,727.20.
The respondent sought costs in the sum of $11,800. It seems he sought the entirety of his costs referable to the 27 April 2023 hearing. However, no submissions were made explaining why I would make a costs order akin to an indemnity costs order.
On 15 May 2023, the wife filed written submissions in reply. The wife’s counsel largely sought to re-agitate how I could stay and transfer the part-heard trial in the New South Wales Supreme Court to this Court.
Nevertheless, indemnity costs were opposed. It was submitted at paragraph 15 “each party (and the non-party, [Ms Mahal]) should bear their own costs of that aspect of the wife’s application”, being essentially the stay and transfer of the Supreme Court proceedings to this Court. The basis for each party bearing their own was said to be that I did not consider this Court’s accrued jurisdiction in reaching the decision I did. However, I dismissed the wife’s application that I stay and transfer the New South Wales Supreme Court proceedings and make costs orders in those proceedings, for having no basis whatsoever.
Whilst it is clear that the wife’s primary position is that no order as to costs should be made, it was conceded that “at most, [Ms Mahal] would be entitled to party-party costs on the basis that costs would follow the event” (wife’s written submissions, paragraph 15).
With respect to the costs sought by the husband, the wife’s position was that the usual position should apply and each party bear their own costs.
BACKGROUND
The wife filed an Initiating Application in the Federal Circuit Court of Australia (as it then was) on 8 July 2021.
The husband filed his Response to Final Orders on 29 November 2021.
On 16 November 2022, the proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia.
The parties married in Country B in 2004.
The parties’ daughter, X was born in 2008, and their son Y born in 2012.
The interim parenting applications sought by the husband and wife were before me on 27 April 2023, and adjourned to 7 December 2023, to allow for family therapy and a Family Report to be prepared.
The husband, the proposed second respondent, and the children reside at the former matrimonial home in Suburb C. The proposed second respondent’s interest in the Suburb C property is the subject of the New South Wales Supreme Court trial, to which I have already referred.
Material
The wife relied upon her written submissions filed 15 May 2023.
The husband relied upon his written submissions filed 5 May 2023.
The proposed second respondent relied upon:
·Written submissions filed 5 May 2023;
·Affidavit of Mr D filed 5 May 2023;
·Affidavit of Mr D filed 24 April 2023 (page 74 only); and
·Affidavit of Mr D filed 31 March 2023 (page 134 only).
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Costs
Section 117(1) of the Act provides that each party to proceedings under this Act will bear their own costs.
Obviously, this applies as between the husband and wife in this matter.
As for the proposed second respondent, counsel for both the proposed second respondent and the wife were at one to the extent that s 117(1) does not apply to the proposed second respondent, as she is not a party to these proceedings.
However, s 117(2) still provides that if, in proceedings under this Act, the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection (2A) and various other subsections and the applicable rules of court, make such order as to costs as the court considers just.
It has been held that “on a natural reading of s 117(2) of the Family Law Act, this court’s jurisdiction to order costs is unlimited” (McAlpin & McAplin (1993) FLC 92-411, at 80,215 per Nicholson CJ and Maxwell J).
Counsel were also at one to the extent that s 117(2) confers a broad power as to costs.
No one argued before me that the proposed second respondent could not be the beneficiary of a costs order. The dispute was the nature of the order – whether each party and the proposed second respondent bear their own costs, or indemnity costs, or party-party costs (per the wife’s “at most”), or costs pursuant to Schedule 3 of the Rules (per the proposed second respondent’s alternative).
Section 117(2) of the Act directs my attention to a range of considerations under section 117(2A) of the Act, to determine what order, if any, should be made. Those considerations are:
(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.
Notably, all but the last of these considerations refer to the parties to the proceedings. Thus, all of those factors plainly apply to the costs sought by the husband against the wife. Their relevance is a separate issue. It is well settled that the Court may give such weight as it considers appropriate to any relevant factor (Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24]).
Further, as between the husband and wife, it is well settled that no single 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)) & TRF & LKL (2005) 33 Fam LR 123 at [41]).
However, the considerations in s 117(2A) referring to parties do not automatically apply to the proposed second respondent. That said s 117(2A)(g) is “expressed in the most ample terms. It permits the court to have regard to ‘such other matters as the court considers relevant’” (Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44 at [37] per Kirby J).
I consider the factors set out in s 117(2A)(a)-(f) to be sound and solid guides to consider when exercising my discretion to award costs, or not, as between the proposed second respondent and the wife. Section 117(2A)(g) is also wide enough to cover the acknowledgement by the wife that costs could follow the event.
(a) the financial circumstances of each of the parties to the proceedings;
The proposed second respondent submitted that the wife is “employed, self-funded in these proceedings and will receive a property settlement” (proposed second respondent’s written submissions filed 5 May 2023, paragraph 18.1). Counsel for the wife did not cavil with this in her written submissions. The husband made no submissions about this.
Nothing turns on this.
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
There is no suggestion that any party is in receipt of legal aid.
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
The proposed second respondent submitted this subsection is not relevant.
The husband’s submissions were critical of the wife under this sub-heading. The criticisms were that the wife ought not have pressed her interlocutory parenting orders when there was a notation that the parenting orders would not be pursued until the husband’s and wife’s respective criminal proceedings had concluded. I accept a notation is not an order, but there was little of substance I could do with the parenting whilst a criminal charge remained outstanding. The parties agreed this was so.
Nevertheless, I was able to make some procedural orders to progress the parenting matters towards an interim hearing later in the year.
The husband’s submissions also criticised the wife for abandoning numerous interlocutory orders on the morning of the hearing. That most notable included her application for what I called the money orders at the start of these reasons.
I am not critical of the wife for conducting the interim hearing as she did. That is the nature of litigation; tactical decisions are taken.
The main problem for the husband and his criticisms of the wife’s conduct is that the costs he seeks are not differentiated to allow me to assess what might have applied to the parenting and what may have been thrown away from the wife not pursuing the money orders. Rather unhelpfully, he sought the entirety of his costs for the hearing on 27 April 2023.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
The proposed second respondent submitted this subsection is not relevant. Neither the husband nor wife made any submissions on this subsection.
Nothing turns on this.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
Section 4(1) of the Act defines proceedings as follows:
proceedings means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
(Emphasis added)
I am satisfied that each of the applications brought by the wife for hearing on 27 April 2023 constituted proceedings within the definition.
Counsel for the proposed second respondent submitted the wife was wholly unsuccessful in her applications:
The wife was wholly unsuccessful in her applications which is a significant factor warranting an order for costs. It is particularly relevant that in relation to the transfer application, the dismissal was for want of jurisdiction, rather than on the basis of an exercise of discretion.
The applications brought by the wife were completely without merit and should not have been instituted. This is an established basis which justifies an order for costs: Collins v Victorian Legal Aid Commission (1984) FLC 91 – 508.
(proposed second respondent’s written submissions, paragraph 22)
It is correct that the wife was wholly unsuccessful in relation to the orders she sought that concerned the proposed second respondent. As is clear from the outcome, I did not accept her accrued jurisdiction argument and considered her reliance on Willmann & Willmann [2022] FedCFamC1F 232 (“Willmann”) to be misplaced. This is, as authorities tell me, an established basis which may justify an order for costs.
The husband also submitted the wife was “not successful in any of the orders which were pressed as against the Respondent” (husband’s written submissions filed 5 May 2023, paragraph 28). I do not agree. Whilst interim parenting was not heard, the parties nevertheless agreed to orders which will assist in progressing the parenting matter towards an interim hearing later this year.
The husband was successful in resisting the wife’s asset preservation order. But, he separately agreed to disclose source documents which meant the wife did not need to press her application to appoint a Single Expert. The husband was, in reality, only tangentially involved in the application that concerned the New South Wales Supreme Court proceedings and joinder of his mother.
The wife’s orders sought against the proposed second respondent were all dismissed; the wife was accordingly wholly unsuccessful. The same however cannot be said of the wife’s applications and orders that had bearing on the husband.
(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
The proposed second respondent submitted this subsection is not relevant. The wife and husband made no submissions on this subsection.
(g) such other matters as the court considers relevant.
This subsection is so wide that allows me to import the earlier subsections to assist in determining what order, if any, I ought make in favour of the proposed second respondent. That is what I have done above.
This subsection is also so wide that it also allows me to have regard to the traditional civil cost outcomes, where costs usually follow the event. This was acknowledged by the wife, although I am well aware her primary position is each party, and non-party, meet their own costs.
The husband’s costs application sought against the wife - justifying circumstances?
In the exercise of my discretion, I do not conclude that there are justifying circumstances that would make a costs order just as between the husband and wife. I have formed the view that s 117(1) as between the husband and wife, will prevail.
I do so because the wife was not wholly unsuccessful with respect to the matters agitated between the husband and wife. The parenting orders will assist its progression. Hopefully the source documents will help explain to the wife the transaction she queries.
Annexed to the written submissions of the husband is an invoice for his solicitors (husband’s written submissions filed 5 May 2023, p.5–6) and an invoice for counsel (husband’s written submissions filed 5 May 2023, p.7)
The greatest difficulty with the husband’s application for costs is that he seeks the entirety of his costs in relation to the hearing of 27 April 2023. He did not specify or attempt to delineate what related to the proposed second respondent, what was relevant to the parenting proceedings and more so, what his costs thrown away were for the money orders, which were not pursued.
Assuming this figure is calculated on an indemnity basis, the husband has failed to comply with r 12.13(4) of the Rules and not advised the Court whether he is bound by a costs agreement in relation to those costs and the terms of that agreement.
The husband’s submissions on costs means I am not in any position to try and make any form of assessment. Nor did he make submissions as to why he ought have something akin to indemnity costs. The “Court is not obliged to, nor should it attempt, something akin to a taxation of costs undertaken by an assessor” (Rankin and Rankin (No 3) [2019] FamCAFC 133 at [23]).
I will not make a costs order in favour of the husband against the wife. The wife was not wholly unsuccessful in so far as the husband was concerned. I am also not critical of her conduct. No basis is made out for the husband to have the entirety of his costs.
Is a costs order in favour of the proposed second respondent just?
Page 74 of the affidavit of Mr D filed 24 April 2023 is an email dated 20 April 2023. In that email, it was clearly said to the wife that “[t]here is no power for the Court in proceedings PAC3706/2021 to make an order for transfer of a proceeding part heard before a Supreme Court Judge. This should be obvious to your office.”
That is the bottom line of what I found. I do not consider the wife’s applications were novel, rather I consider they were wrong headed. It was open to the wife to bring her transfer application in the Supreme Court of New South Wales, but she did not. The wife’s counsel placed heavy reliance on the decision of Willmann, supra. As that case shows, there is a time and a place for this Court’s accrued jurisdiction to bring together family law and other potential disputes under the one roof. This was not one of those times. Separately, an anti-suit injunction against the proposed second respondent was not sought. An application in the Supreme Court has not been agitated.
For the following reasons, I consider there are justifying circumstances that a costs order be made in favour of the proposed second respondent against the wife. The proposed second respondent is a stranger to the marriage and not a party to proceedings. The applications that concerned her were dismissed; that is the wife was wholly unsuccessful in achieving what she wanted to achieve. The proposed second respondent has been put to the expense of defending the application that she be joined and the application that asked this Court to stay and transfer the Supreme Court of New South Wales proceedings to this Court, and, for this Court to make costs orders in relation to those Supreme Court proceedings and the transfer. A costs order would also follow the event as contemplated by the wife (albeit acknowledging her primary position was there be no water is to costs).
It is therefore just that an order be made in favour of the proposed second respondent.
On what basis should the applicant wife pay the proposed second respondent’s costs
The proposed second respondent submitted the Court ought award indemnity costs fixed in the amount of $20,610. In the alternative, the proposed second respondent sought costs in accordance with Schedule 3 of the Rules fixed at the amount of $12,727.20.
An order for indemnity costsis a significant departure from the normal standard and requires something exceptional: Harris & Dewell (No 2) (2018) FLC 93-863, where the Full Court said at [23]-[25]:
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.
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”.
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)
In the well-settled authority of Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (“Colgate-Palmolive”) Shepherd J provided some examples of circumstances that might justify the awarding of indemnity costs, and usefully, Holden CJ in Munday v Bowman (1997) FLC 92-784, at 84,660, drew from his Honour’s decision those examples:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts…
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud…
(c)Evidence of particular misconduct causing loss of time to the court and to other parties…
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…
(e) An imprudent refusal of an offer to compromise.
That said, the categories of circumstances which enliven the discretion to award indemnity costs are not closed (Yunghanns v Yunghanns (2000) FLC 93-029 at [31]).
Counsel for the proposed second respondent submitted that:
25.1. The applications were bound to fail, and it should have been obvious to the wife and those that represent her that the application for transfer was hopeless and was brought in the wrong jurisdiction. Compounding this is the fact that the lack of jurisdiction was made unequivocally clear to the wife’s legal representatives by way of an email from [Mr D] of Goodwin Legal on behalf of [Ms Mahal] on 20 April 2023 in which it was stated “there is no power for [the Court] in proceedings PAC3706/2021 to make an order for transfer of a proceedings part heard before a Supreme Court judge. This should be obvious to your office”;
25.2. Section 5(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987 and Part 9.5 of the Federal Circuit & Family Court of Australia Rules 2021 are clear an[d] unambiguous in their terms. The wife was not able to point the Court to any legislative provision or authority which supported their contention as to the Court’s power to interfere with, and transfer, proceedings before another Court. Otherwise, the submissions made in relation to the extent of the Court’s accrued/additional jurisdiction were plainly wrong;
25.3. The wife caused [Ms Mahal] to incur unnecessary additional costs by making contentions about the Supreme Court proceedings which were both unnecessary and erroneous. It was evident from the transcript of those proceedings that they were both adjourned and marked part heard with the consent of each of the parties;
25.4. The joinder application was so inextricably linked to the application for transfer, it was obvious that such application would fail upon the application for transfer being dismissed.
(Footnotes omitted)
(Proposed second respondent’s written submissions filed 5 May 2023, paragraphs 25.1-25.4)
Pursuant to r 12.13(4) of the Rules a party applying for costs on anindemnity basis must inform the Court if that party is bound by a costs agreement in relation to those costs and the terms of that agreement. The proposed second respondent complied with these requirements.
The breakdown of costs sought by the proposed second respondent was set out in the annexures to the affidavit of Mr D filed 5 May 2023.
However, I am not prepared to make an indemnity costs order against the wife. I am not satisfied that that this is one of those exceedingly rare cases where there should be a great departure from the normal standard. Whilst the proposed second respondent is a stranger to the marriage, she is also a litigant in the Supreme Court proceedings, being the proceedings that the wife sought to have transferred to this Court. It is not as if the proposed second respondent’s only litigation involvement with the husband and wife is the applications that were before me.
I am also not satisfied that the wife had some ulterior motive or wilful disregard of known facts. The wife simply tried to bring to proceedings together under the roof of this Court but went about it entirely the wrong way.
Unhelpfully, whilst I appreciate the wife submits each party and the non-party bear their own costs of her applications, the wife did not make any alternate submissions on the quantum of the costs sought by the proposed second respondent. Nor did the wife challenge any of the line items at Annexure SM3-4. That was the itemised list of costs setting out the Schedule 3 costs incurred by the proposed second respondent in connection with the applications.
As I said in relation to the husband’s application for costs, I have no intention of performing some kind of assessment on those unchallenged costs.
Disposition
Rule 12.17(1)(a) of the Rules allows me to fix costs. Thus, I will fix the proposed second respondent’s costs in the amount of $12,727.20. That is by reference to Schedule 3 of the Rules. I will also not cavil with the line items, given the wife did not challenge any.
The proposed second respondent sought an order that the costs be paid within 14 days of the date of this order. The wife made no alternate submission on timing. I will therefore adopt that sought by the proposed second respondent.
For the reasons given, I will not make a costs order in favour of the husband.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 25 May 2023
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