Whitman and Hacking
[2013] FCCA 356
•24 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITMAN & HACKING | [2013] FCCA 356 |
| Catchwords: FAMILY LAW – Costs – offer of settlement – recommendation of family report writer – no justifying circumstance found. |
| Legislation: Family Law Act 1975, ss.60CA, 60I, 117, 118 Family Law Rules 2004, rr.10.1.1 |
| Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Penfold v Penfold (1980) FLC 90-80 AIF v AMS [1999] HCA 26 |
| Applicant: | MR WHITMAN |
| Respondent: | MS HACKING |
| File Number: | PAC 167 of 2012 |
| Judgment of: | Judge Harman |
| Hearing date: | 5 April 2013 |
| Date of Last Submission: | 5 April 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 24 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Solicitors for the Applicant: | Collins & Thompson |
| Counsel for the Respondent: | Mr O’Brien |
| Solicitors for the Respondent: | Etheringtons Solicitors |
ORDERS
The Application for costs made by Ms Hacking is dismissed.
Each party shall pay their own costs of and incidental to the proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Whitman & Hacking is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 167 of 2012
| MR WHITMAN |
Applicant
And
| MS HACKING |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court following a contested hearing and, at the conclusion of the hearing, an oral application for costs made by Ms Hacking (the Respondent in the substantive proceedings and the Applicant with respect to the issue of costs).
The oral application for costs was made with the Court’s leave at the conclusion of a three day trial and judgment delivered at the conclusion thereof.
Following such leave being granted the costs application, then properly before the Court, was adjourned for hearing to 7 February 2013.
On 7 February 2013 and for reasons that are entirely unclear, the proceedings were adjourned by consent and listed for hearing before me on 5 April 2013.
On 7 February 2013 and when the proceedings were adjourned, directions were also made for written submissions to be filed by each of the parties. This has occurred and such written submissions have been augmented by further oral submissions by Counsel for each of the parties.
Material considered
In dealing with the issue of costs I have had regard to the documents identified by each of the parties and comprising:
a)In the case of Ms Hacking:
i)Written submissions dated 6 March 2013;
ii)Minute of Orders sought at trial by Ms Hacking (Exhibit M1 in the substantive proceedings);
iii)The Response filed by Ms Hacking in the substantive proceedings 6 February 2012;
iv)The Case Outline filed by Ms Hacking's Counsel at the commencement of the substantive trial;
v)Ms Hacking's Affidavit affirmed 18 January 2013 and filed the same day;
vi)Paragraphs 7 to 23 inclusive and paragraphs 73 to 77 inclusive of Ms Hacking's Affidavit affirmed 5 November 2012 and filed 7 November 2012 (being the portions identified by Ms Hacking's Counsel and dealing with arrangements for the child of the parties from separation until hearing and the financial circumstances of Ms Hacking); and
vii)Family Report of Dr H released to the parties by order of 5 October 2012.
b)In the case of Mr Whitman, I have read and considered:
i)Written submissions of Mr Whitman's Counsel;
ii)Minute of Orders sought at trial by Mr Whitman (Exhibit F1 in the substantive proceedings);
iii)The Case Outline filed by Mr Whitman's Counsel at the commencement of the substantive trial;
iv)Mr Whitman's Initiating Application filed 18 January 2012;
v)Paragraphs 8 and 9 of Mr Whitman’s Affidavit sworn 5 November 2012 (and filed 7 November 2012);
vi)Paragraphs 15 to 25 inclusive of Mr Whitman’s Affidavit sworn 17 January 2012 (and filed 18 January 2012);
vii)Affidavit of Mr Whitman sworn 21 February 2013 and filed 25 February 2013.
Background
The paragraphs of the trial Affidavits (being those relied upon in the substantive proceedings) have been considered for the purpose of ascertaining relevant background to the proceedings. It is clear from those paragraphs that:
a)The parties were in a relationship together from February 2002 until approximately August 2007.
b)The child of the relationship, X, was born on (omitted) 2004 and was at the date of trial 8 years of age. She is now 9 years of age.
c)X and her parents had, until late 2011, both lived in the (omitted) area and in relative proximity to each other as well as to Mr Whitman’s parents.
d)X commenced school at (omitted) Primary School and attended that school for each of 2009, 2010 and 2011 (being from Kindergarten until the conclusion of Year 2).
e)On 4 January 2012 Ms Hacking commenced to cohabit with her partner at rented premises at (omitted).
The above move to (omitted) and discussion between the parties (both directly and through their attorneys) would appear to have been the precipitating event which, in the mind of Mr Whitman, caused him to determine to commence the substantive proceedings.
The Application filed by Mr Whitman sought relief on both an interim and final basis. On an interim basis Mr Whitman sought orders, inter alia:
4. The Mother shall not move the residence of the child more than 3 kilometres from (omitted), NSW (being Mr Whitman’s address).
5. The Mother shall not change the school enrolment of the child from (omitted) Primary School at (omitted).
6. In the alternative to 5. Above, if the Mother shall have changed the school enrolment of the child from (omitted) Primary School …then the Mother shall forthwith and in any event within 7 days, do all things and sign all documents and execute all instruments as may be required to re-enrol the child X at (omitted) Primary School…
7. In the alterative to Order 4. Above, if the Mother, Ms Hacking has moved the residence of the child X more than 3 kilometres from (omitted), NSW, then the child shall live with the Father, Mr Whitman, until such time as the Mother shall have taken up residence within the area bounded by a 3 kilometre circle from (omitted), NSW.
8. Provided that the Mother lives within a 3 kilometre radius from (omitted), NSW, the child shall live with Father each alternate week…and live with the Mother each alternate week…
9. If the Mother shall have moved the residence of the child more than 3 kilometres from (omitted), NSW, such that pursuant to these Orders the child shall live with the Father, then the child shall spend time with the Mother as follows:
(a) each alternate weekend…from 6.00pm on Friday to 6.00pm on Sunday…
…[and other periods including half of school holiday periods].
On a final basis the Father sought orders that X live in a week about shared care arrangement between her parents households and provided that:
a)The child be re-enrolled at and attend (omitted) Primary School; and
b)The mother live within three kilometres of the father’s home.
By her Response filed 6 February 2012, the mother sought orders on both an interim and final basis and such orders being identical for both purposes.
The mother proposed that X live with her at (omitted), attend (omitted) Public School, and spend time with her father each alternate weekend from Thursday after school until before school Monday and for half of school holidays (together with other special occasions and the like).
Mr Whitman’s material provides little detail as regards care arrangements for X prior to the commencement of proceedings. However, it would appear clear from Ms Hacking’s material (which was not substantially disputed at the substantive proceedings) that:
a)Following the separation of the parents (at which time X was a little over three years of age) X spent time with her father as agreed between the parents and that this was “often irregular”.
b)In August 2008 Ms Hacking made arrangements for Family Dispute Resolution through the Family Relationships Centre at (omitted). Ultimately Family Dispute Resolution did not proceed and in October 2008 a section 60I certificate was issued to Ms Hacking on the basis that they had been unable to contact Mr Whitman. Ms Hacking’s evidence suggests that a conversation then occurred between she and Mr Whitman to the following effect:
I asked Mr Whitman words to the effect of: “Why didn’t you respond to the Family Relationships Centre to talk about mediation?. Mr Whitman replied with words to the effect of: “It’s none of anyone else’s business”.
c)In November 2008 negotiations occurred between the parties, it would appear facilitated by Mr Whitman, and agreement was reached and arrangements put into place whereby X spent time with her father for one night each weekend (from either Friday to Saturday or Saturday to Sunday) as well as each Tuesday evening on a non-overnight basis.
d)It would appear from Ms Hacking’s evidence that between separation and the commencement of proceedings before this Court (in January 2012) that the above time arrangement occurred with some regularity but no additional or more extensive periods occurred on a regular basis.
e)In July 2011 Ms Hacking again contacted the Family Relationships Centre at (omitted) to arrange Family Dispute Resolution. One session of Family Dispute Resolution occurred (in August 2011). However, a subsequent session did not proceed.
f)On 3 January 2012 some contact occurred between the parties regarding the resumption of Family Dispute Resolution.
Mr Whitman’s evidence is that following advice from Ms Hacking (on 14 December 2011) that she was moving to (omitted) that he advised her “I don’t agree to either X moving or to her changing school”.
On 22 December 2011 correspondence was forwarded to Ms Hacking by attorneys instructed by Mr Whitman reaffirming his objection to Ms Hacking’s move with X from (omitted) to (omitted) and giving reasons including:
a)X is “embedded” in the area and the relocation to (omitted) will disrupt her relationships with her extended family and her friends as well as her school, swimming and netball activities;
b)The change of X’s residence and school is not “conducive her welfare” and may cause X “trauma” which is not justified by the “marginal benefit” to the mother of such a move;
c)To remove X from the “culture” of the (omitted) area may damage X “emotionally and psychologically”; and
d)The change in residence may create “prejudice to both the duration of and the quality of time” the father spends time with X which may create an “unacceptable risk” to the father’s relationship with X.
The correspondence forwarded by Mr Whitman’s attorneys also made clear that, in the absence of an undertaking to not change the child’s place of residence (whilst in Ms Hacking’s care) or her school, that an Application would be filed with the Court. That correspondence also, importantly, advised:
IF YOU MOVE X’s PLACE OF RESIDENCE FROM (OMITTED) TO (OMITTED) OR ANY OTHER PLACE, and Mr Whitman's Application as outlined… is refused, seeking Interim Orders that … you do the travel required so that X can attend school, Mr Whitman can continue to spend time with X as he does at present and X continue her extracurricular activities in the (omitted) area.
The correspondence forwarded to Ms Hacking was directive and, without intending it to be pejorative, threatening.
The Response forwarded by attorneys instructed by Ms Hacking was similarly directive and intimidating.
The nature of the correspondence between the attorneys instructed by each party was far from conducive to a resolution of issues in dispute between them or, for that matter, identification of relevant issues.
The move occurred and, the parties having been unable to resolve their dispute by lawyer assisted negotiation, the Initiating Application was filed.
The proceedings first came before the Court in a Duty List (Mr Whitman’s attorneys having attended upon a Registrar for the purpose of obtaining an abridgment of time and short listing of his Application) on 13 February 2012.
On that date the parties attended a Child Dispute Conference and the proceedings were adjourned for an Interim Hearing on 12 March 2012. No resolution was achieved at the Child Dispute Conference and thus the Interim Hearing of the proceedings occurred on 12 March 2012.
On 12 March 2012 interim orders were made which provided that X would spend time with her father during school terms from the conclusion of school Thursday until the commencement of school Monday each alternate weekend together with a period from after school Thursday until the commencement of school Friday in each intervening week. Orders were also made (as each party proposed) for time to occur for one half of each school holiday period. Orders were made to provide for X to spend time with her mother at times other than when she is spending time with her father.
On 12 March 2012 hearing dates were also fixed and a Family Report ordered. As indicated previously, the Family Report was released to the parties by Order made in chambers on 5 October 2012 and thus received by them some short time thereafter.
Following receipt of the Family Report (it being noted that each party was to file and serve all Affidavit material relied upon by them by no later than 26 October 2012) correspondence was forwarded by Ms Hacking’s attorneys to the attorney for Mr Whitman.
The first correspondence (Annexure A to Ms Hacking's Affidavit affirmed 18 January 2013) comprised a letter dated 12 October 2012. That correspondence referred to Division 10.1.1 of the Family Law Rules 2004 (suggested to apply by Regulation 1.05 of the Federal Circuit Court Rules) and proposed as follows:
2. X shall spend time with her father:
a. During school terms each alternate weekend from the conclusion of school Thursday until the commencement of school the next Monday (extending to Tuesday if a long weekend or pupil free day);
b. Each intervening week from the conclusion of school on Thursday until the commencement of school on Friday;
c. For one half of each short New South Wales school holiday period…
…
6. X will continue at (omitted) Public School.
The correspondence concluded with the following:
We note that the terms of the above offer are almost identical to the recommendations made by Dr H in the Family Report dated 4 October 2012 and would, if accepted, maintain Orders 8, 9, 10, 11 and 13 of the interim orders made by His Honour Federal Magistrate Harman on 12 March 2012.
This offer will remain open and is capable of acceptance until 5.00pm on Thursday, 18 October 2012.
The correspondence is otherwise made openly and without reservation save the limiting of time during which the offer was to remain on foot.
The correspondence (assuming that it was delivered by email on the day of its production) was generated on a Friday and was suggested to remain open for four business days and thus capable of acceptance until 5.00pm on the following Thursday.
Ms Hacking’s material, perhaps disingenuously, does not refer to any other correspondence between the parties regarding settlement. However, clearly further correspondence and negotiation occurred as is evidenced by Mr Whitman’s Affidavit sworn 21 February 2013.
Mr Whitman’s material annexes correspondence from his attorneys dated 24 October 2012. This correspondence, in turn, refers to additional correspondence from Ms Hacking’s attorneys dated 19 October 2012 and their email response dated 23 October 2012, which correspondence is not before the Court.
The correspondence from Mr Whitman’s attorneys dated 24 October 2012 makes clear that a proposal had been put by Mr Whitman’s attorneys for a round table conference to occur between the parties and their legal representatives. This would appear to have been rejected. Thus the correspondence then attaches what are described as draft terms of settlement and reflective of Mr Whitman’s proposals on a “Without Prejudice Except as to Costs” basis.
The draft terms of settlement propose that Ms Hacking not move the residence of X, whilst X is residing with her mother, “more than 5 kilometres from her present address” at (omitted) without the written consent of the father or further order of the Court. The draft terms of settlement also propose as follows:
5. The Parents shall each do all acts and things and sign all documents to effect the enrolment of X in “(omitted) Public School” for the start of the 2013 Academic Year and thereafter X shall not be enrolled in any other school without the written permission of both parents or Order of a Court exercising jurisdiction pursuant to the Family Law Act, 1975.
6. X shall live with each parent in equal time, as agreed in writing between the parents and failing agreement as set out below…
Mr Whitman’s position, at least as communicated in the draft terms of settlement submitted with the above correspondence, was thus that a week about care arrangement should thereafter apply for X’s time with each parent and that X should attend a school, as discussed in Mr Whitman’s trial Affidavit sworn 5 November 2012, that was a “midpoint”. Mr Whitman’s Affidavit (paragraph 9) describes:
I thought that if X went to school at a midpoint between Ms Hacking’s home at (omitted) and my home out at (omitted) it would ease a point of dispute between me and Ms Hacking and average out our respective travelling for both our own convenience and time and mean that X has less average time travelling. I researched and found 7 schools that are about halfway between my address and Ms Hacking’s address. (omitted) Public School seemed the best choice…and appears to me to be the best to a mid-point location, it is located 17.4 kilometres distance from my home and 15.5 kilometres distance from Ms Hacking’s home according to “whereis”.
Mr Whitman’s initial Affidavit (filed with his Initiating Application) sworn 17 January 2012 had suggested that the distance from Mr Whitman’s home to Ms Hacking’s address at (omitted) was 26.6 kilometres (or 9.2 kilometres further from the school proposed by Mr Whitman as a “midpoint”).
Following the correspondence from Mr Whitman’s attorneys, 24 October 2012, further correspondence dated 25 October 2012 (as annexed to Mr Whitman’s Affidavit sworn 21 February 2013– Annexure B) was generated by Ms Hacking’s attorneys. This correspondence clearly indicates that Ms Hacking was not in agreement with the proposed terms of settlement and advised:
…We are instructed that as a result of the Family Consultant’s Report, our client will only agree to settle this matter on the following terms:
1. That X’s residence remain at her current residence at (omitted).
2. That X remain at (omitted) Public School; and
3. That X’s current living arrangements remain the same, being that X lives with your client for five nights in a fortnight, and her mother for the remainder of the fortnight.
Therefore, any further proposed settlement whereby your client would seek to the change the above will not be entertained by our client. However, if your client accepts the above terms, our client is willing to have a “Round Table Conference” with your client to discuss ancillary issues…Such a conference would be held in the offices of this firm, would be attended by the parties and their respective solicitors and would have no involvement by either party’s Counsel.
In the circumstances where your client cannot accept the above terms, we are instructed that this matter will not settle prior to final hearing and the parties must proceed to Court.
Ms Hacking’s position, in support of her application for costs, relies heavily upon offers of settlement and the conduct of the proceedings generally.
It is clear that each of the parties had retained attorneys whose approach to negotiation has been less than fulsome (whether on instructions or otherwise). Even if such negotiation styles (abrupt, directive and limited) are on instructions, such instructions would, in all probability, be reflective of advice provided regarding same.
As no resolution was possible, the matter proceeded to hearing.
At the commencement of the trial, a Minute of Order was tendered in Mr Whitman’s case and which proposed that an equal shared care arrangement apply (week about care) and reaffirmed Mr Whitman’s proposal that X be enrolled at (omitted) Public School as a “midpoint”. On the basis of that disclosed regarding X’s travel times or distances to (omitted) Public School it might otherwise be described as a proposal of mutual inconvenience.
Costs jurisdiction
The parties each concede that the proceedings are to be determined by reference to section 117 of the Family Law Act 1975 (Cth).
Section 117(1) provides the “general rule” (as it has been described by each of the parties) that each party to proceedings should bear his or her own costs and in the following terms:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
Section 117(2) reserves a discretion to the Court to make an order for costs and in the following terms:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) sets out a non-exhaustive list of considerations and I would propose to deal with each of those separately.
As is clear from authorities such as Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 and Penfold v Penfold (1980) FLC 90-800, the Court must be satisfied that there is a circumstance or circumstances which justify departure from the “general rule” that each party pay their own costs and that such departure is just and equitable. Further, as submitted by Counsel for Ms Hacking, the Court need not find that each of the factors set out in s.117(2A) are present before enlivening the Court’s jurisdiction and discretion to make an order for costs (see Wetner v Ratner [2011] FamCA 104).
The general rule and justifying circumstances
Section 117(2A) and the non-exhaustive list of considerations has some relevance as regards both a finding that a justifying circumstance exists and a determination as to whether an order for costs, then being made, is just and equitable.
Each of the steps must be found separately and failure to establish both would preclude an order for costs being made.
Counsel for Ms Hacking also submits that an order for costs can and should be made on an indemnity basis and the Court is referred to Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225 in support of same. I will deal with that issue separately.
In light of the above I propose to consider each of the sections and subsection 117(2A) before setting out my findings regarding the existence or otherwise of a justifying circumstance and my considerations as to whether an order for costs, in any quantum, is just and equitable.
The financial circumstances of each of the parties to the proceedings
Reliance is placed by Ms Hacking upon this factor. Ms Hacking sets out in her evidence that she receives child support, in accordance with an administrative assessment undertaken by the Child Support Agency, of $53.25 per month. A copy of the assessment is annexed to Ms Hacking’s material (Annexure F of her Affidavit affirmed 18 January 2013).
Mr Whitman asserts that the payment of child support by him occurs in accordance with the assessment and that payments are up to date.
Mr Whitman is self employed and affirms that the affairs of his company are up to date and known and disclosed both to the Australian Taxation Office and the Child Support Agency.
Ms Hacking seeks to infer that the administrative assessment is not reflective of the reality of Mr Whitman’s income and suggests (paragraphs 10 and 12 of her Affidavit) that Mr Whitman does not or may not disclose all of his income for tax or child support purposes (alleging that he receives cash payments which one presumes from the tone of Ms Hacking’s evidence is the basis of her suggestion) and that Mr Whitman owns an unencumbered property at (omitted) with the inference that this is out of step with his disclosed income and would not represent a reasonable acquisition in those circumstances.
A Notice to Produce was issued by the attorneys for Ms Hacking and served upon Mr Whitman or those instructed by him. The Notice to Produce was not answered.
I do not draw any adverse inference against Mr Whitman on the basis of his failure or refusal to answer the Notice to Produce.
I am not satisfied the Notice to Produce is at all appropriate in the circumstances. Each of the parties has provided sworn evidence as to their financial circumstances and I do not propose to go beyond or behind that evidence.
Neither of the parties has given oral evidence nor has any request been made to cross examine either party. In those circumstances I am not at all satisfied that the Notice to Produce is appropriate or that any call could be validly made upon it. In any event that issue is not ultimately pressed.
It is submitted in Ms Hacking’s case that the actions of Mr Whitman throughout the proceedings (related to submissions regarding conduct) represent “might and power crushing the weak”. Again, I am not satisfied that this is borne out by the evidence available.
Ms Hacking is in paid employment and earns an income of approximately $62,655 per annum (for 2012 financial year) and Mr Whitman earns an income of $45,860 per annum (for the 2012 financial year).
Mr Whitman clearly owns an unencumbered property the value of which is not clear but is, on the basis of an admission against interest made by Mr Whitman, not less than $500,000. Mr Whitman indicates that whilst the property is unencumbered it is the subject of an equitable charge on the basis of funds advanced to him by his parents to assist in the purchase. No other details regarding the purchase are available and nor would they appear to be relevant or germane to the issue to be determined by me.
Ms Hacking’s financial position, as regards assets and liabilities, is less clear although Ms Hacking deposes that she does not own real estate or any asset of significance. She further deposes she has, as a consequence of the proceedings and borrowings both privately and from financial institutions to meet legal costs, incurred significant debt.
The legal costs met by Mr Whitman are not before the Court.
The legal costs incurred by Ms Hacking are before the Court and she has annexed tax invoices from her attorneys (three) and her Counsel (one) disclosing legal fees with respect to the proceedings of $36,969.95.
Issue is taken by Counsel for Mr Whitman as the costs agreements between Ms Hacking and her attorneys (and presumably between her attorneys and Counsel) has not been disclosed and is not before the Court. It is suggested that a call has been made for production and that a failure to produce same is fatal to any application for costs by Ms Hacking as the costs agreement would represent the basis upon which recovery of costs is permitted (by reference to the Legal Profession Act 2004). I do not accept that submission.
Ms Hacking has given sworn evidence that she has retained attorneys and incurred costs through them. It is not the role of this Court, in entertaining an application for costs, to assume the position of a costs assessor or to determine the validity or otherwise of a claim for fees by an attorney. It is asserted that costs disclosure has occurred and a costs agreement exists. In the event that a costs agreement did not exist that would not necessarily bar recovery of costs. However, I am not satisfied that it is an issue which requires further consideration by me.
Grants of legal aid
Neither party has been legally aided with respect to the proceedings. Indeed, Ms Hacking has given clear and specific evidence that she has, on prior occasions, approached the Legal Aid Commission but had been refused assistance on the basis of her means.
Conduct of the parties to the proceedings
Significant weight is attached by Ms Hacking's Counsel to this factor (together with the offer of settlement referred to above).
It is submitted that Mr Whitman’s conduct is relevant particularly as regards:
a)The commencement of the proceedings;
b)His refusal to resolve the matter in accordance with Ms Hacking’s settlement offer or, as it is described by Counsel for Ms Hacking, her offer of compromise;
c)Continuation of the proceedings following release of the Family Report and failure to accept and act in accordance with the recommendations contained therein; and
d)The change of his case at the commencement of the hearing as evidenced by the Minute of Orders relied upon by him (Exhibit F1).
I will deal with each of those factors separately.
Commencement of proceedings
I am troubled by the manner in which proceedings have been commenced by Mr Whitman and the manner in which the proceedings have been conducted by the parties and their attorneys.
Each of the attorneys has dealt with any resolution of the matter in a most abrupt if not highhanded fashion.
The initial correspondence forwarded to Ms Hacking, whilst it is threatening and intimidating as regards its contents, is also somewhat ill-conceived having regard to the factual background set out above.
At the time that the proceedings were commenced, Mr Whitman was spending infrequent and limited time with X. It is common ground between the parties that arrangements for X’s time with her father had comprised one overnight period per week. Thus the proposal, as contained in the interim relief sought by the Application, that X pass to live in her father’s care unless certain preconditions were met (regarding Ms Hacking’s place of residence and X’s school) cannot readily demonstrate any consideration of X’s needs and interests and thus I had found during the substantive proceedings.
Mr Whitman’s position, when the proceedings were commenced, was that an order should be made by the Court (and such relief was pressed at interim hearing) that X (with her mother) live no more than three kilometres from Mr Whitman’s home.
Whilst Mr Whitman and Ms Hacking had lived in close proximity to each other for the majority of the period since their separation, such a position as advanced by Mr Whitman is so restrictive and unreasonable as to beggar belief.
The position advanced by Mr Whitman is further compounded in its absurdity by his alternate proposal that in the event Ms Hacking did not relocate herself and X’s residence back to within three kilometres of his home that Ms Hacking should then ensure that X is transported the 26.6 kilometres from her home to X’s former school and all other activities. That is a proposal put within the same correspondence that suggests a significant “risk of harm” to X of being relocated from the (omitted) area and the culture attached thereto and which must, of necessity, accept and suggest that for X to travel a distance of 26 kilometres to attend school and other activities (including spending time with her father of (then) one night per week) was contrary to her best interests.
In Mr Whitman’s case (both at substantive hearing and with respect to this application) it is suggested that:
Further she was on notice in writing that the father was opposed to such unilateral action.
…
It is patently clear the conduct of the mother as a parent generated these justiciable issues. Her conduct was, it is argued, dishonest as a parent from the start. She is the one who behaved unilaterally, when she knew there was no agreement… She was defiant through her solicitors and thumbed her nose at her parental responsibilities.
It is concluded in Mr Whitman’s submission that:
…It cannot possibly be the case that just circumstances for the making of a costs order can have as its genesis the misbehaviour of the mother which generated the issues to be determined.
I do not propose to adopt such language in relation to the mother’s actions. There is significant factual issue between the parties as to Ms Hacking giving or not giving notice to Mr Whitman of her intention to move to (omitted) or the (omitted) area. Ms Hacking suggests that this first occurred in mid-2011 and Mr Whitman suggests the first notice that he had of it was 14 December 2011. Very little turns upon either proposition.
Ms Hacking has (whilst it is described in the correspondence forwarded by Mr Whitman’s solicitors as “marginal benefit”) determined to relocate so as to take up full time residence with her partner (with whom she would appear to remain) and to pursue what it described by Justice Kirby in AIF v AMS [1999] HCA 26 as her “legitimate interests”.
It is also to be remembered that what was proposed by Ms Hacking as regards her change of residence (and thus X’s residence whilst in her care):
a)Was to move some 26 kilometres and within the Sydney metropolitan area and, indeed, the Sydney (omitted) area;
b)Timed to occur at the conclusion of the school year rather than during it;
c)Benefitted Ms Hacking (and thus, at least indirectly, X) emotionally and financially; and
d)Did not warrant the suggested consequences of the move as referred to in the above correspondence (going so far as to suggest that such a change of residence might create an unacceptable risk to X and/or X’s relationship with her father).
Ms Hacking’s actions in seeking to change X’s school were assuredly unilateral. Mr Whitman had made clear on 14 December 2011 (and subsequently in correspondence from his attorneys) that he opposed the change of school.
Some greater credit might be given to Mr Whitman as regards that opposition than his strident opposition to Ms Hacking moving more than three kilometres from his home. However, any credit extended to Mr Whitman in that regard must also be viewed in the context of his proposals at Final Hearing being that X attend a school that was an approximate mid-way point or, based upon the rationale for Mr Whitman’s opposition to X’s move and travel distance, mutually inconvenient for both the parties and disadvantageous to X. Surely if a basis for opposition to X’s change of residence and school was Mr Whitman’s perception that this created an onerous burden upon X occasioned by travel, then to ensure that she had a similar burden of travel each and every day and from each parents home is difficult to fathom.
Ultimately, I accept in any event (as would be apparent from the orders made at the conclusion of the trial) that the travel that X is now involved in (approximately 30 kilometres between her parents’ homes) is far from onerous. This was commented upon by Dr H (paragraph 48) as:
While undoubtedly inconvenient for X and her parents, the extra travel is unlikely to have any significant influence on her wellbeing.
Notwithstanding the above criticisms that can fairly be made of Mr Whitman (as regards both the misconception of the proceedings at their instigation as representing a relocation case and as reflected by the relief proposed by him) they are not sufficient, in my mind, to suggest that his conduct in commencing proceedings would establish justifying circumstance.
However, the proceedings have, from their commencement, continued to hearing (and thankfully were completed within a relatively expeditious time frame).
A consideration of the various opportunities available for a resolution of the matter might have some greater validity as the basis for establishing justification for an order for costs let alone justice and equity (and I will deal with same as part of a consideration of offers generally).
Otherwise, neither party can be significantly criticised as to the conduct of their case. Each has prepared their material in a timely fashion and has not, by and large, sought to rely upon prolix or irrelevant material.
The misconception of issues as regards X’s move with her mother would not, as I have indicated, justify an order for costs by and of itself. However, it must also be considered by reference to the other considerations which will follow.
I am also somewhat perplexed by Mr Whitman’s position at trial wherein he had sought to again move X from a school in which she had become settled (albeit as a consequence of Ms Hacking’s enrolment of her at that school notwithstanding Mr Whitman’s clear objection) and to then move her to another school which had no connection with either parent’s locality or accommodation. Such position, I am satisfied, could only be viewed as mutually inconvenient for each party, disadvantageous to X and focused upon considerations other than X’s best interests and welfare. That issue, however, did not consume any significant portion of the trial and did not lengthen the trial or preparation required.
Dr H was somewhat critical of Mr Whitman regarding his motivations for commencing proceedings and the relief sought by him. At paragraph 47, Dr H opined:
Prompted to begin legal proceedings by Ms Hacking’s lack of consultation about moving away from (omitted) and changing X’s school, Mr Whitman appears to have feared their implication for his involvement in his daughter’s life. However, his application for equal shared care of X significantly contrasts with what had been his level of involvement with her since the separation. Although Mr Whitman attributes his change of attitude to his growing maturity and a deeper sense of parental responsibility, the fact that Ms C [Mr Whitman’s partner] now cohabits with him and is able to assist in caring for X may partly account for it.
Whilst such criticism is, I accept, valid, I again, am not satisfied that it would entitle me to find justification for an order for costs. Mr Whitman’s growing involvement in X’s life and his increased and increasing commitment to do so at the time the proceedings were commenced is wholly to be encouraged. I accept, as Mr Whitman's Counsel submitted, that in such circumstances a party should not be fearful in seeking a determination of judiciable parenting issues.
Non-acceptance of Ms Hacking’s offer 12 October 2012
I will deal with this factor in more detail when considering offers. However, I am not satisfied that the failure of Mr Whitman to accede to Ms Hacking’s offer would, of itself, justify an order for costs. This is particularly so as:
a)The offer remained open for a period of four working days and was thereafter withdrawn (as made clear by the correspondence in which the offer was contained);
b)Ms Hacking did not demonstrate any desire or willingness to negotiate a resolution of the matter thereafter other than a resolution strictly upon her terms (which, as must be noted, were ultimately reflective of the orders made by the Court); and
c)Mr Whitman’s position was clear and consistent throughout the proceedings and from their commencement in that he sought an order for equal time (again there is some conundrum created by that position in light of Mr Whitman asserting the onerous burden of travel over a distance of 26 kilometres as the basis for significant criticism of Ms Hacking and of some, if not all, of the relief sought by him).
Not accepting proposals or proposing resolution in accordance with recommendations of the family report writer
Significant weight is attached by Ms Hacking to this factor particularly as Ms Hacking asserts and expresses her proposals as being based upon or informed by Dr H’s recommendations.
I have the greatest of respect of Dr H as a report writer within the Court. However, that respect is borne from his years of experience and the manner in which he approaches the tasks set by the Court through report writing. Such respect does not require, nor did it require in this case, that I would accept his recommendations without question. Similarly the parties should not be expected or required to do so inferentially or otherwise.
As has been made by a chain of authorities, generally referred to by reference to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 70, the parties are entitled to test opinions or recommendations of report writers or other experts generally. Experts are required to formulate opinions by reference to disclosed and reliable information.
Dr H was required for cross examination and was skilfully cross examined by Counsel for both parties, but particularly Counsel for Mr Whitman. Some concessions were made by Dr H although, ultimately, his evidence was largely unshaken and his recommendations remained firm. However, the report writer’s recommendations are only that – recommendations. They do not bind the Court and nor should the Court slavishly follow such recommendations. To do so would be to deny justice to the parities and to abrogate judicial responsibility and, indeed, judicial function.
That Dr H has made clear recommendations is not, of itself, a basis to justify an order for costs. That is not to say that clear recommendations of a report writer might not, in some circumstances, carry such weight. However, I am not satisfied that it is so in this case.
It is also submitted by Counsel for Ms Hacking that the report writer’s recommendations suggested and supported a finding that the proposals of Mr Whitman, as to both time and the proposed school to be attended by X, were contrary to X’s best interests. Dr H’s evidence did not establish that position nor suggest it.
Dr H was clear in his recommendations as to that which he felt best served X’s interests. However, that does not imply, infer or, in the case of Dr H’s report in these proceedings, directly state that the proposals of Mr Whitman were contrary to X’s best interests. They are simply not those preferred by Dr H in his professional opinion. Similarly, Mr Whitman’s proposals were not those preferred by the Court as being those which would best promote X’s interests.
Change of case at commencement of trial
I am not satisfied that the Minute of Orders tendered by Mr Whitman at the commencement of the trial represented a significant or substantial change in his case or a change which could not be met by Ms Hacking or Counsel or which had not been addressed in preparation.
The proposals of Mr Whitman as regards time had been consistent throughout the proceedings. The Minute that was filed by him at the commencement of the trial sought an equal time arrangement and that is identical to the relief sought on a final basis by Mr Whitman. Whilst it is potentially inconsistent with the relief sought on an interim basis, it is to be noted that the interim proceedings had been disposed of and orders made on 12 March 2012.
In the event that it was seriously suggested that a significant change in Mr Whitman’s case arose from the tendering of a Minute of Orders proposed, one would have expected that Ms Hacking's Counsel would have sought, on her behalf, an adjournment of the proceedings on the basis of a denial of due process. No such application was made and I am satisfied that such denial of due process did not arise.
Ms Hacking was able to meet Mr Whitman’s case on a final basis as the relief sought by him (an equal time arrangement) was that which had been sought by him at paragraph 6 of the final orders sought in his Application filed 18 January 2012.
The abandonment by Mr Whitman of what was described by Ms Hacking's Counsel as his “relocation argument” is not readily apparent. I do not accept that such “abandonment” occurred.
The position advanced by Mr Whitman via the orders sought in his Application initiating proceedings was, again, consistent throughout the proceedings. The only factor which had been “abandoned” by Mr Whitman was to no longer seek an order that Ms Hacking relocate to within three kilometres of his home (order 4 as sought in the Initiating Application).
A restraint was still sought by Mr Whitman but on the basis that there be no further change of residence beyond five kilometres of the then home of Ms Hacking (Ms Hacking’s evidence being clear that she has, in fact, moved from that address since the conclusion of the proceedings).
Again, I am not satisfied that the above represents a change in Mr Whitman’s case of any substance or significance.
The significant change which had occurred was the relief sought by Mr Whitman regarding the school to be attended by X (the midway or mutually inconvenient school).
Mr Whitman had sought throughout the proceedings specific orders as to the school to be attended by X. Thus, again, I am not satisfied this represented a significant change to the case or in any way impacted upon preparation, the time required for trial, or any other aspect of the proceedings.
I am satisfied that the position advanced by Mr Whitman regarding X’s school was somewhat ill-conceived and it was on that basis that substantive orders were made at the conclusion of the trial which reflected my lack of favour to that position. However, that of itself, is not and could not be a justifiable circumstance.
Proceedings necessitate by failure to comply with previous orders
This is not a relevant consideration.
Mr Whitman, in opposition to any order for costs, asserts that the proceedings were necessitated by Ms Hacking’s unilateral actions in relocating and changing X’s school. However, the underlying dispute between the parties was far broader than that issue.
Whether any party has been wholly unsuccessful
Ms Hacking's Counsel asserts that, as Ms Hacking has been successful in obtaining the relief that she sought, an order for costs would be justified and appropriate.
The test created by the sub-section is not one of success but lack thereof.
The Court is always loathe to encourage parties to approach or to consider litigation in terms of “winning and losing”. It is on that basis and within that context that I am satisfied this sub-section (s.117(2A)(e)) should be considered.
Whilst it might be suggested that Mr Whitman has been unsuccessful in obtaining the relief sought by him, that is neither an accurate reflection of the outcome of the proceedings nor an appropriate prism by which to view the proceedings.
Mr Whitman commenced proceedings and sought orders which he considered to be in his child’s best interests. Clearly, his view of X’s best interests was at odds with that of Ms Hacking.
Whilst I have some reservations regarding the appropriateness of relief sought by Mr Whitman, I am not satisfied (and was not in the substantive proceedings) that Mr Whitman’s motivations were other than his desire to achieve an outcome which he believed best met his child’s best interests.
Whilst portions of the relief sought by him did not find favour, they could not, in my mind, be described as doomed to failure (as might arise, for instance, in an application for summary dismissal pursuant to section 17A of the Federal Circuit Court Act).
I am not satisfied that either parent was wholly successful or unsuccessful (whatever those terms might be suggested to mean and leaving aside the lack of efficacy in such terminology in reference to parenting proceedings).
Further, I am not satisfied that the provision is intended to capture circumstances such as these but rather an application which might fall short of being dealt with pursuant to section 118 of the Family Law Act (frivolous and vexatious proceeding) or 17A of the Federal Circuit Court Act (and thus warranting summary dismissal) but which is so ill-conceived as to represent a peculiarly ill-advised and foolhardy course.
Offers
Great weight and significance is attached, in Ms Hacking’s case, to the offer of settlement made by her in the correspondence from her attorneys 12 October 2012.
Counsel for Ms Hacking specifically relies upon the Full Court’s decision in Browne v Green (2002) 29 Fam LR 428 at 57:
We think that whilst s 117(2A) does not provide any direct guidance to where weight should be given in any one particular case, it is very important for the Court to give proper consideration to written offers of settlement that have been made. The insertion of s 117C into the legislation is a clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration, is something to which very significant weight indeed ought normally be given.
There are a number of specific matters relating to the offer which are of relevance and which have been touched upon above but which I now elaborate upon.
The only evidence of an offer of settlement made by Ms Hacking is that contained within the letter of 12 October 2012. The offer is made on a Friday afternoon and is expressed to expire and be thus withdrawn the following Thursday afternoon.
Following that correspondence, and only by reference to Mr Whitman’s material (rather than being led by Ms Hacking), it is clear that Ms Hacking declined to participate in any further negotiation other than upon her terms and conditions (both as to the contents of any resolution and the manner in which and the venue at which negotiation would occur).
Mr Whitman’s position with regard to negotiation was also touched upon in Dr H’s report. At paragraph 16, Dr H expresses:
In the brief joint session with Ms Hacking after the interviews and observations, Mr Whitman appeared to listen closely to the feedback he received. He said very little, and did not respond to Ms Hacking’s wish that they could resolve their dispute and avoid a defended hearing.
I am satisfied that I must also consider the negotiation of the parties (to the extent that it is before the Court as evidenced by Dr H’s report and the correspondence to which I have referred) within the context of X’s lived experience with her parents to the time that the proceedings were commenced and during them.
There had been one prior occasion (2008/2009) when Mr Whitman had declined to attend mediation (see paragraph 19 of Dr H’s report and Ms Hacking’s material). No real explanation is provided by Mr Whitman for the attitude demonstrated by him at that time. Whilst that is informative of Mr Whitman’s attitude towards negotiations and parenting arrangements (and participation in decision making) I am not satisfied that it has direct relevance, weight or bearing upon this determination.
The time that was spent by X with her father prior to the commencement of the proceedings was dramatically different to that which is now occurring and which has, in fact, occurred since interim orders were made by me on 12 March 2012. That circumstance is, again, succinctly described by Dr H at paragraph 47 of his report (see above).
At the conclusion of the proceedings, X has received the benefit of orders which provide her with far more substantial time with her father than had occurred at any point prior in her life. However, those time arrangements are, by and large, identical with proposals put by Ms Hacking exactly one month prior to the commencement of the hearing.
The fact that X’s relationship with her father has improved significantly (without intending to suggest or infer that time alone is reflective of an improved relationship) has come at a significant cost, both financially and otherwise, to each of the parties. This is, again, reflected to some extent in Dr H’s report and particularly paragraph 48 thereof.
The issue which then arises, in my mind, is whether Ms Hacking having obtained the very relief which she proposed at the commencement of the trial (see Exhibit M1) creates a justifying circumstance for an order that Mr Whitman pay some or all of her costs.
As I have indicated, the only evidence of any attempt at negotiation on the part of Ms Hacking arises from the correspondence of 12 October 2012. That correspondence raises a proposal which remains open for a limited period of time prior to its expiration. Thereafter, Ms Hacking has disavowed any attempt at negotiation other than upon the basis of acceptance by Mr Whitman of her prior and then withdrawn proposal.
It is not necessary, to establish a justifying circumstance, for Ms Hacking to demonstrate more than one settlement offer. A chain of proposals gradually moving towards that sought by Mr Whitman would have been entirely inappropriate.
Each of the parties appeared clear in their resolve to not depart from the position which they advanced at hearing. To that extent each of the parties, in their limited negotiations with each other and/or through their attorneys, could be described, in mediation terminology, as “positional bargainers”.
Each proceeded on the basis that unless they were given that which was fundamental to them (the time arrangement they sought) that there was little if any utility in seeking to discuss any other aspect of the matter or even meeting to attempt to do so.
To the extent that Ms Hacking’s case asserts that her proposals are in accordance with Dr H’s report, there is some doubt in my mind that this could be a factor of great significance. This particularly arises having regard to the final paragraph of the “Evaluation” of Dr H (paragraph 50) which states:
Any recommendation concerning the parents’ competing proposals for X’s living arrangement is more arbitrary than based on an assessment of which of them better serves the child’s interests. Indications are that X would continue to do well in either arrangement [emphasis added].
Having regard to the above, it is difficult to arrive at any position other than satisfaction that a live judiciable issue remained between the parties and with respect to which each party had a valid basis to pursue their position.
In fact, based upon the above passage, each parent was justified in their position and in asserting that their position was “supported by and in accordance with Dr H’s report”.
As is submitted by Counsel for Mr Whitman:
…a party should not be fearful from seeking a determination of justiciable parenting issues, on the basis that costs may be ordered. Such a ‘costs following the cause’ regime is anathema to the best interest principles in the Act.
Whilst I do not accept the validity of criticisms raised in Mr Whitman’s case regarding the mother’s suggested “arrogant behaviour” in relocating herself and changing X’s school (although more temperate language might find favour as a criticism) I do accept that Mr Whitman had a right and entitlement to bring and pursue the application which he did.
Each of the parties has been entirely positional in their negotiation, limited as it has been. The fact that Ms Hacking’s position has found favour at the conclusion of the case would not, in my mind, be a justifying circumstance by and of itself and could not be unless I was satisfied that Mr Whitman’s position was entirely without foundation or incapable of being successfully argued.
What has occurred is that I have made orders which are reflective of Dr H’s recommendations but based upon my own assessment of the evidence over three days of hearing.
In the substantive proceedings I have not found any significant criticism of either parent as regards their conduct of the proceedings (as would arise from authorities such as Colgate-Palmolive Company & Anor v Cussons Pty Ltd and Penfold v Penfold). I accept that each of the parents are good, capable and competent parents who have a great deal to offer X. That I have been satisfied that one arrangement (determined at the conclusion of a judicial process rather than arbitrarily) would best meet X’s needs does not reject any other arrangement (including that advocated by Mr Whitman) as also meeting X’s best interests. It is not a matter of one case serving X’s needs and the other not. Each proposal would, as Dr H has opined, meet X’s needs and one has found favour over another.
Whilst I have referred to Ms Hacking’s position (and that of Mr Whitman) as reflecting “positional bargaining”, that is not intended as a criticism of Ms Hacking. She is entitled to adopt a position which she believes to be in her child’s best interests and to not seek to depart from or depart substantially from that position. However, that her position has won favour is not, of itself, a justifying circumstance for an order for costs and is, indeed, anathema to both section 117 and section 60CA.
Justifying circumstance
Having regard to the above, I am not, on balance, satisfied that a justifying circumstance exists which would enliven the Court’s jurisdiction to make an order for costs.
However, lest I am wrong in that regard, I am also not satisfied that it would be just and equitable to do so in the circumstances.
Whilst I do not have clear evidence before me as to the costs incurred by Mr Whitman, it is clear that he has incurred costs.
Each of the parties have also incurred costs beyond financial, including the expenditure of time and emotional energy upon these proceedings (further inflated by the conduct of the costs application and the adjournment of the hearing of same).
Whilst I accept the submissions of Ms Hacking's Counsel that proper consideration and weight should be attached to offers of settlement, I am satisfied that the weight attached by me is appropriate.
I am not satisfied that the one offer of settlement identified in Ms Hacking’s case as having been made in these proceedings and within the context in which it was made could be determinative of the issue or establish, of itself, a justifying circumstance.
I am not satisfied that there are sufficient other factors which would warrant a finding as to a justifying circumstance and/or justice and equity in combination therewith.
Whilst it is submitted with some force that Ms Hacking is the “primary caregiver” of X and that the financial burden upon her will thus impact upon her care of X, I am not satisfied that this would warrant an order for costs nor render such order just and equitable. There is little to be gained from a discussion of the primacy or otherwise of care arrangements for X. X spends substantial and significant time with each of her parents and each is thus responsible for meeting her needs (including financial) for the periods she is with them.
Each of the parties would appear to now have some degree of debt as a consequence of these proceedings and their funding. However, they are decisions which have been made by the parties and each of them. Neither has conducted the proceedings in any fashion which has inflated the costs of the other. Indeed, the “positional bargaining” approach adopted by each following the release of the report (and to some extent during the report interviews) has potentially limited expenditure through that activity (though such positional bargaining is not encouraged by me).
I need have no consideration of the appropriateness or otherwise of the costs of the parties nor determine whether the costs charged by each party’s attorney are reasonable. They are not matters before me. However, the costs that are incurred by each party is in accordance, no doubt, with the costs disclosure which has occurred and costs agreement between they, as the client, and their attorney.
It is regrettable that significant funds, which might otherwise have been devoted to X’s care, have been expended by each party in these proceedings. However, they are matters for the parties and, absent a finding of justification for an order for costs, are costs which each of the parties can and should bear in accordance with the general rule.
Whilst it is submitted by Ms Hacking that Mr Whitman is in a superior financial position to her, I am not satisfied that his financial position is either so vastly superior to hers as to warrant or support the submission put in her case (that Mr Whitman’s actions reflect the strong crushing the weak) nor could I rely upon that circumstance of itself as justifying an order for costs.
It is the appropriateness of each party’s actions, the conduct of the proceedings and the relief they have sought, and the justice of the cause, rather than simply reflecting upon the relative financial positions of the parties.
In the absence of justification, Mr Whitman’s asserted superior financial position (as to which I have insufficient material to be satisfied) is no basis upon which an order for costs can or should be made nor could any such order be suggested to be just and equitable.
Whilst I have raised some criticism as to the specific relief proposed by Mr Whitman (as regards restraints on Ms Hacking’s place of residence and/or X’s school) they were not matters which were central to the determination made by the Court. Whilst they are valid criticisms, it does not obviate from the real underlying gravamen of the dispute, being a contest as to X’s living arrangements and, in particular, whether she should spend equal time with each parent or substantial and significant time with each parent and a greater portion thereof with Ms Hacking. That was the primary issue and the focus of the proceedings. Whilst the other issues (and criticisms with respect thereto) may well have had an impact upon the orders ultimately made they were not the central issue to be determined.
I am not satisfied that Mr Whitman should be criticised for pursuing an application which sought a significant increase in the time that his daughter spends in his care.
Similarly, Ms Hacking cannot be criticised for opposing such a significant increase.
However, the fact that the orders sought by Mr Whitman represented a significant increase is not, of itself, a factor which can or should justify an order for costs or which would make such an order just and equitable. Taken to its logical, mathematical extreme it would mean that any parent, not spending time with their child at all, making an application to spend time would be in a similar position (the increase then being infinite rather than significant). That is not the spirit, purpose or intention of section 117.
For all of the above reasons I am not satisfied that a justifying circumstance is adequately made out to warrant enlivenment of the Court’s jurisdiction to order costs.
Further, I am not satisfied that, even if such justifying circumstance were made out (and lest I am wrong in my rejection of that proposition) that it would be just and equitable to make an order for costs in the circumstances outlined above.
Therefore, I make orders as set out at the commencement of this Judgment.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 24 May 2013
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