These proceedings have settled today due to a combination of the intervention of legal advisers and the ultimate good sense of the parties. Despite the parties' ability to agree upon the main issues between them, they have not been able to resolve the issue of costs.
The proceedings arise out of the tragic death of a young woman who is known to the second and third defendants, her parents, as Rebecca May Reardon and who was known to the plaintiff, the father of four of her children, as Aisha Charafeddine.
In the proceedings the plaintiff applies for the release from the Office of the New South Wales State Coroner of the deceased's body to him for burial or cremation. The plaintiff sought that relief initially against the Coroner who had custody of the deceased's body.
The proceedings came before the Court two weeks ago on 2 March 2015 in the Duty List. On that occasion Sackar J ordered that the second and third defendants be joined into the proceedings. It was adjourned to 9 March 2015 when they were joined. A week later, today, the matter is back before the Court.
A short background is required to understand the contest that leads to this dispute as to costs. The plaintiff lived with the deceased for many years. They had four children together but their relationship was not harmonious. By the time of her death the deceased had taken out an apprehended violence order ("AVO") against the plaintiff. But there are, in the evidence that the plaintiff has advanced, letters from the deceased that show her affection towards him.
The second and third defendants are the deceased's parents. They present through their evidence quite a different picture of the relationship between the deceased and the plaintiff: one which is perhaps consistent with the AVO order. On their version, the defendant presents as a violent character. In December 2013, he broke into the deceased's house and assaulted her then partner. The partner was hospitalised as a result of the assault, and the defendant was convicted of assault occasioning grievous bodily harm and sentenced to a term of imprisonment from which he was only recently released. The second and third defendant's evidence suggests that the deceased wished to be away from the plaintiff and was scared of him. I do not have to decide which of these two versions of the relationship between the deceased and the plaintiff is true. That is not part of the Court's present task, which is to decide what should be done about the costs of these proceedings.
In the course of the morning the parties have negotiated a settlement, the terms of which will be recorded at the end of these reasons. The agreement made between them results in the second and third defendants' having custody of the deceased's body for burial, and the coroner being at liberty to release the body to them for that purpose.
The parties have also sensibly agreed upon a number of other issues that divide them, including whether the deceased should be buried or cremated and what should be written on her headstone. They have taken the opportunity to resolve these wider issues whilst they are before the Court. The summons is now resolved by the Court making a declaration, which on the evidence, in my view, is justified: a declaration that the second and third defendants are the "senior next of kin" of the deceased for the purposes of the Coroners Act 2009 (NSW) and entitled to have the deceased's body released to them for burial.
The present contest though is one in which the second and third defendants say that the plaintiff should pay the costs of these proceedings, or at least the costs of today. When before the luncheon adjournment it was evident that this trial was going to be resolved but that there was still an issue as to costs, I directed the parties to exchange such evidence they wished to rely upon by 2pm, so they could see what evidence each other had about the costs issues.
I will briefly summarise the procedural narrative and then the arguments that Mr Boyd puts on behalf of the second and third defendants and that Mr Levet puts on behalf of the plaintiff. According to both parties, within about 6 days after the deceased died on 21 February 2015, there were some indirect discussions between them, in which a social worker attached to the Coroner's Office acted as an intermediary. These late February discussions were about the issues that were ultimately resolved today.
The second defendant, the deceased's mother, did not wish to be involved in these discussions at that time. That seems to me to be understandable, so close to the death of her daughter.
I have already given above the broad outline of the parties various appearances before the Court. From late February there were no further discussions between them until the day of the last hearing, 9 March 2015. Most of those reasonably short communications took place between the deceased's sister, Brooke Scott, and the plaintiff.
Either on 9 or 10 March 2015, Brooke Scott and the plaintiff did speak again and the essential outline of a possible settlement of the kind that has taken place today was sketched out between them: that is, that the deceased's body would be released to the second and third defendants and buried, which is in accordance with Muslim tradition (according to the plaintiff's evidence), rather than cremated. But the plaintiff wished to obtain spiritual advice before ultimately committing to that course.
There were then a series of missed telephone calls and text messages in which Ms Scott attempted to follow up with the plaintiff to perfect this settlement. She says she did not receive an answer. He acknowledges that she did call him and asked him to call her. But he says he did call and she did not reply. Much of this can be accepted.
One remarkable thing about these exchanges is that by 11 March 2015, the following day, both the parties were legally represented in the proceedings. The missed calls and lack of follow-up are unfortunate. But the legal representatives on each side seem not to have been instructed to make communication. But that may not matter much as the proceedings had already adjourned to today. Further attempts to make contact were made on 14 March 2015.
The law is clear in these circumstances. Where proceedings are settled, the relevant discretionary principle in relation to costs has been concisely stated by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622 ("Lai Qin") at 624-625
"In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.
In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action.
…
Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried.
…
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings". [Footnotes omitted].
Mr Boyd, for the second and third defendants, says that in accordance with Lai Qin principles the plaintiff has acted so unreasonably that he should pay the defendants' costs. He points to the failure of the plaintiff about a week ago to return calls and his failure to accept what was a sensible compromise. But the plaintiff says that the defendants would not enter negotiations on 27 February 2015 and that the plaintiff's conduct was reasonable.
It is difficult for the parties at such a time in their lives to view this matter objectively. That is why the Court is here to intervene. It seems to me that particularly given the strong differences between the parties and that the relevant conduct occurred so shortly after the death of the deceased while her body was still with the coroner, a degree of miscommunication, and misunderstanding are probably to be expected and a broad view of what is reasonable should be taken.
Mr Levet says for the plaintiff that the plaintiff does not submit that the other side were unreasonable, and he does not seek costs from the second and third defendants. It seems to me, looking at this history, that both sides have behaved reasonably. I cannot draw the conclusion that one side has behaved unreasonably in the Lai Qin sense such as would warrant a costs order.
I particularly take into account the fact that by the time the miscommunications took place on 9 and 10 March 2015, the proceedings had already been adjourned to today and were on a course in which it was likely that both sides would have to incur some legal costs anyway. It was likely that lawyers would have to be involved. The kind of sensible agreement which has been reached today probably required the foresight of the parties' legal representatives in putting together the detail of the completed negotiated settlement.
So that it seems to me a case where anyway it cannot be said that costs might readily have been saved by the conduct of one or other party behaving more reasonably. That is another reason why the Court should not make an order as to costs.
I have been referred by Mr Kell of counsel for the Attorney General, who has been granted leave to appear in the proceedings as amicus curiae, to the decision of Cohen J in Burnes v Richards (1993) 7 BPR 15,104 ("Burnes"), a decision in a matter with some similarities to this one. Even though the plaintiff in Burnes was successful, his Honour did not make an order as to costs.
In this matter, I will also decline to make an order as to costs.
I will make orders in accordance with the short orders and declarations initialled by me, dated today and placed with the court papers.
Short Minutes of Order copied below.
A declaration that the second and third defendants are the senior next of kin of Aisha Charafeddine (also known as Rebecca Reardon) ("the deceased") for the purpose of the Coroners Act 2009.
The second and third respondents to have custody of the body of the deceased for the purposes of burial.
The first defendant be at liberty to release the body of the deceased to the second and third defendants.
Note the agreement of the parties as follows:-
The second and third defendants will bury the deceased at Arakoon Cemetery, South West Rocks in the Lawn Section of the Cemetery in a plot to be selected by the second and third defendants.
The plaintiff to pay for the cost of purchase of the burial plot in the amount of $3,000.00 such payment to be made forthwith to the funeral director or as he directs.
The second and third defendants to have complete and absolute control of the funeral and burial service for the deceased.
The second and third defendants agree that the plaintiff may conduct a muslim prayer service at the funeral home prior to the funeral and burial service.
The wording on the deceased's headstone shall be as set out in the document annexed.
Summons otherwise dismissed.
Annexure A
In Loving Memory
Rebecca May Reardon
(Aisha Charafeddine)
3.8.84 - 21.2.15
Our beautiful Butterfly
Is now set free.
Loving daughter of Divina and Ray
Loving mother of
Fetina
Khaled
Hilal
Hanadi
Eilyah
[2]
Amendments
20 March 2015 - coversheet
20 March 2015 - para 2 - "first and second defendants" changed to "second and third defendants"
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Decision last updated: 20 March 2015
Parties
Applicant/Plaintiff:
Charafeddine
Respondent/Defendant:
Magistrate R Denes sitting in the Coronial Jurisdiction at Ballina & Ors