Costs
29 The only remaining issue is whether an order should be made in relation to the costs of this proceeding and, if so, who should pay whose costs and on what basis. As so often happens in cases involving disputes about costs, the respective contentions of the parties were at polar extremes. Ms Tavener contended that Mr Brugman should pay her costs on an indemnity basis. Mr Brugman contended that Ms Tavener should pay his costs on an indemnity basis.
30 Neither contention is justifiable or has any merit.
31 Ms Tavener contended, at least in her written submissions, that Mr Brugman should pay her costs on an indemnity basis because Mr Brugman and his legal representative "commenced and continued" the proceeding in this Court "despite being aware or that they ought to have been aware [sic] that the Court did not have jurisdiction to determine that application and that the orders they sought could not be made pursuant to the [De Facto Relationships] Act". Ms Tavener contended that she had incurred unnecessary costs in defending Mr Brugman's application in circumstances where the proceeding was commenced in the wrong court and under the wrong legislation.
32 There is plainly no evidentiary basis for finding that Mr Brugman or his legal advisers knew that the proceeding was commenced in the wrong court and pursuant to the wrong legislation, at least until about February 2018 when the matter was mediated. Indeed, Ms Tavener's submission in that regard was, to say the least, somewhat surprising, if not disingenuous, in circumstances where Mr Brugman initially commenced the proceedings in the correct court. He only agreed that those proceedings should be discontinued or dismissed as a result of the erroneous statements made by the Circuit Court judge, based on submissions advanced by Ms Tavener's counsel, that the Circuit Court did not have jurisdiction. The submission that Mr Brugman ought to have known that he had commenced proceedings in the wrong Court is equally surprising in circumstances where it is readily apparent that Ms Tavener and her legal advisers also did not appreciate that to be the case until the matter was referred to mediation.
33 I should note, in this context, that the submissions advanced by counsel who appeared for Ms Tavener at the hearing of this application were somewhat more measured and realistic. He submitted that, while Mr Brugman initially commenced proceedings in the correct court, his application did not refer to, let alone seek to set aside, the cohabitation agreement. He submitted that the question of jurisdiction in this matter was not easy and that it is clear that, until fairly recently, the legal representatives of each of the parties proceeded on the basis that this Court had jurisdiction, and was the appropriate court to consider issues surrounding the cohabitation agreement.
34 Mr Brugman contended that Ms Tavener should pay his costs on an indemnity basis because the proceeding could have been determined in the Circuit Court and he only commenced proceedings in this Court "because of the gross and compounded errors" of Ms Tavener or her advisers in respect of which "no explanation or justification has been provided". Ms Tavener's actions have, in Mr Brugman's submission, "caused extensive and unnecessary delay" and there is a need to "hold accountable" Ms Tavener's legal representatives for the misleading statements concerning the Circuit Court's jurisdiction.
35 Putting the hyperbole to one side, there is some merit in Mr Brugman's submission that the actions of Ms Tavener's legal representatives ultimately caused him to erroneously consent to the dismissal or discontinuance of the proceeding in the correct court, the Circuit Court, and commence proceedings in the incorrect court. That said, there is no reason to infer that the actions of Ms Tavener's legal advisers were the result of anything other than an innocent error. There is no basis for inferring that the legal advisers deliberately led the Circuit Court, or Mr Brugman, into error. Nor is there any basis for inferring that Ms Tavener's legal representatives became aware of their error until about the time that the matter was mediated in February 2018. When the error was discovered, Ms Tavener and her legal representatives brought that to Mr Brugman's attention and accepted that the proceeding should be transferred to the Family Court. There is no basis for finding that Ms Tavener or her legal advisers acted improperly or unreasonably.
36 It should also be noted that, at least until fairly recently, Mr Brugman was not legally represented. It is difficult in those circumstances to see how he has incurred significant costs, as he is said to have done, as a result of the dismissal of the Circuit Court proceedings and the commencement of the proceeding in this Court. As for any delay, a costs order is not intended to compensate for delay. Nor is a costs order intended to be punitive in nature, as some of Mr Brugman's submissions would tend to suggest. Mr Brugman must also share some of the responsibility for the errors and delays in his proceedings given that, even accepting that for the most part he was unrepresented, his filed documents were far from pellucid. As has already been noted, his application filed in the Circuit Court did not grapple at all with the cohabitation agreement.
37 The submissions of both Ms Tavener and Mr Brugman proceed on the assumption that much of the work that has been done in this proceeding to date has been wasted. That assumption may turn out to be entirely unjustified. While ultimately it will be a matter for the Family Court judge who hears the matter, contrary to some of the submissions that have been advanced by both parties, it is difficult to see why the pleadings and affidavits filed by the parties to date cannot be utilised in the proceedings in the Family Court. If there are any difficulties with any of the documents that have been filed by the parties, those difficulties are likely to be the product of poor drafting or inadequate attention to the issues, not the change in venue.
38 The Court has a very wide jurisdiction in relation to costs. The primary consideration must be to do justice in the particular circumstances of the case. In my opinion, the justice of this case is best served by reserving the question of costs so it can be considered by the Family Court judge who ultimately hears the substantive application. That is so for a number of reasons.
39 First, there is no doubt that, by reason of s 12 of the Cross-Vesting Act, the Family Court can make a costs order that relates to the conduct of the proceedings in this Court: see, for example, Woodland Home Products Pty Ltd v Picalovski [2010] NSWSC 629.
40 Second, in my opinion the question of costs should be approached on the basis that the proceeding should have been commenced pursuant to the provisions of the Family Law Act. In that regard, it is relevant to have regard to s 117 of the Family Law Act. Subsections 117(1), (2) and (2A) provide as follows:
117 Costs
(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.
(2) 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 an order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct and 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.
…
41 Subsection 70NFB(1) and ss 117AA and 117AC are inapplicable to the circumstances of this case. Section 118 relates to frivolous or vexatious proceedings. Subsections 117(4), (4A) and (5) are also inapplicable to the circumstances of this case.
42 The general effect of s 117 is that ordinarily a party to proceedings under the Family Law Act will bear his or her own costs, but that the court may make a costs order if of the opinion that it is justified having regard to the considerations listed in s 117(2A). Plainly, the Family Court judge who hears the substantive proceeding will be in a better position to assess the considerations in s 117(2A) and whether a costs order should be made in all the circumstances. It is also sometimes the case that the costs of interlocutory applications are best resolved at the conclusion of the proceedings when all the facts are known.
43 Third, the Family Court judge will also be in a much better position to determine what, if any, costs were wasted or thrown away as a result of the need to transfer the proceeding to the Family Court. As I have already said, I do not accept that much of the work that has been done by the legal advisers for both Mr Brugman and Ms Tavener while the matter has been in this Court has been wasted. I do not, for example, accept that the costs incurred in the mediation were wasted.
44 Fourth, I do not consider that it is desirable for this Court to make a costs order at this stage of the proceedings when the matter is to be transferred to the Family Court. The effect of making such a costs order would be that the costs order would be taxable and enforceable forthwith, unless an order was made that the costs order was not enforceable until the conclusion of the Family Court proceedings. Even in those circumstances, this Court may be left with lingering issues concerning the taxation or assessment of costs in accordance with any costs order. I should note, in that context, that I am not satisfied that an indemnity costs order would be appropriate. Nor am I satisfied that the parties have provided sufficient evidence of the costs that have been incurred to allow the Court to make a lump sum costs order. As I noted earlier, in my view, any costs order made in the circumstances would not necessarily cover all the work that has been engaged in by the legal advisers while the matter has been in this Court.
45 I have given some consideration to whether a costs order should be made in relation to the hearing of the rival interlocutory applications. The main order sought by Ms Tavener in her interlocutory application was that Mr Brugman's application in this Court be dismissed for want of jurisdiction. That said, Ms Tavener did not ultimately press that aspect of her application. Indeed, as will be seen, she made it quite clear to Mr Brugman prior to the filing of her application that she would consent to the transfer of the proceeding to the Family Court. Mr Brugman's interlocutory application sought an order transferring the proceeding to the Family Court. To that extent, he was the successful party. He also sought a freezing order. To that extent his application was unsuccessful.
46 One difficulty for Mr Brugman is that, as has already been adverted to, prior to the filing of her interlocutory application, Ms Tavener, through her solicitor, made a "without prejudice" offer to Mr Brugman. That offer was that the proceeding be transferred to the Family Court and that the question of costs be reserved for determination by the Family Court. Mr Brugman did not accept that offer within the stipulated period, the result being that Ms Tavener filed her interlocutory application. The question arises whether, in those circumstances, Mr Brugman should be ordered to pay Ms Tavener's costs of the application.
47 While I can see some merit and justification for ordering Mr Brugman to pay Ms Tavener's costs of the hearing of this application, given the offer that was made by Ms Tavener, I have ultimately come to the view that this again is a matter that should be determined by the Family Court in the context of the proceedings generally, and in light of the considerations in s 117 of the Family Law Act. I note in that context that there is some evidence to suggest that Mr Brugman may be impecunious. I would not consider it appropriate, in all the circumstances, to make a costs order against Mr Brugman that may be payable forthwith if the effect of such an order would be to frustrate or impede the prosecution of his application in the Family Court.
48 In all the circumstances, the appropriate order is to reserve costs for the consideration of the Family Court. Orders will be made accordingly, along with orders transferring the proceeding to the Family Court.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.