Giller v Procopets [2002] VSC 305

Supreme Court of Victoria|2002-08-05|Before: KELLAM J.

The application for interim costs is supported by affidavits sworn by the plaintiff's solicitor on 26 July 2001 and 1 October 2001, and by a valuer, Mr Kevin Connelly, and a chartered accountant, Mr Geoffrey Sharpe, each sworn on 17 July 2001. Mr Connelly states that valuation fees in relation to the two properties owned by the defendant will be in the range of $800-$1,500. Mr Sharpe deposes that the fees required to investigate and report upon the financial affairs of the defendant will be in a range of $10,000-$12,000. The affidavit sworn by the plaintiff's solicitor, Ms Morrison, sets out the legal costs incurred by the plaintiff up until July 2001, as exceeding $110,000. She estimates that the trial of these proceedings will take between eight and ten days and that preparation for trial will exceed four days.

Does the Court have power to make an order for interim costs?

"Costs to be in the Discretion of Court 24(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid."

He submits further that O.63.03 of the Rules of Court enables the Court to exercise its discretion in making an order for interim litigation costs.

I am unable to find any previous case in Victoria whereby an order for interim litigation costs has been made, nor was Mr Davis able to refer me to such a case.

However, a number of such orders have been made, in particular in relation to cases brought before Australian courts pursuant to the Family Law Act (Cth) and the defacto property legislation of NSW.

In Parker v Parker,[2] Bryson J concluded that a claim for an interim order for costs fell within the power of the Supreme Court of New South Wales to order costs under s.76(1)(a) of the Supreme Court Act (1970) New South Wales. The claim in that case was for the defendant to pay $15,000 to be used for an investigation to be conducted by accountants of the financial position of the defendant and for the valuation of his financial interests. The principal claim of the plaintiff was for adjustment of property and other relief under the Defacto Relationships Act (New South Wales) 1985. The decision of Bryson J was the subject of an application for leave to appeal to the Court of Appeal (New South Wales) but leave to appeal was refused.[3]

McLaughlin M in Liati v Warren (1995) DFC 95-161 in a claim for relief by a defacto wife under the Defacto Relationships Act (1984) (New South Wales) likewise held that the Supreme Court of New South Wales had power to make an order for interim legal costs.

In Breen v Breen (1990) 65 ALJR 195 the High Court refused leave to appeal a decision of the Family Court ordering that a substantial sum be paid to the solicitors for a wife. This sum was to be applied in the preparation of her case. The judgment of the court which was delivered by Brennan J (as he then was) includes the following statement:

"The order made in this case may be unusual but it cannot be said to be beyond the jurisdiction of the Family Court under either s.112(2) or under s.74 of the Family Law Act 1975 (Cth). It is unnecessary to determine whether the power to make the order falls under s.117(2) rather than under s.74 ... Nor is it necessary to determine whether the order in the present case is to be characterised as an order as to costs or an order as to security for costs. The order seeks to ensure that, in the circumstances of the present case, the wife should be able to prosecute the pending matrimonial proceedings and should have the funds required to do so. Such an order made for such a purpose, though it falls within one or other of the powers conferred in the Family Court, should be so framed as to protect the parties from any risk of injustice arising from the manner in which the funds are expended."

In Re JJT and Others; ex parte Victoria Legal Aid [1998] HCA 44; (1998) 23 Fam LR 1, Gaudron J said:

"The power conferred by s.117(2) of the Family Law Act 1975 (Cth) is a power to `make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.' That power is not simply a power to make an order for costs. Were it so, it would only authorise orders to indemnify for `costs actually incurred in the conduct of litigation'. However, a power to make `an order as to costs' is a broader power. And when regard is had to the consideration that s.112(2) expressly authorises interlocutory orders, that section must, in my view, be construed as authorising orders requiring a party to proceedings under the Act to provide another party with funds to conduct those proceedings."

In the light of the observations of the Supreme Court of New South Wales and the High Court of Australia in relation to the costs provisions under the Supreme Court Act of New South Wales and the Family Law Act (1975), I am satisfied that s.24(1) of the Supreme Court Act is at least as wide as s.117(2) of the Family Law Act. In such circumstances I am satisfied that the Court has the power to make the order sought by the plaintiff. In my view, the justification for such a power is apparent in relation to defacto property cases. In such cases one party to the proceeding, and more often than not the defacto husband, regularly enjoys the advantages of having ownership of the assets in dispute (together with other financial resources) and an intimate knowledge of his/her own affairs and circumstances. Unless the other party has the resources to investigate and become acquainted with such financial circumstances that party is often at a considerable disadvantage in the preparation and conduct of the litigation. Legal Aid is now rarely, if ever, available to assist parties in the conduct of such proceedings in this Court. Accordingly, the question to be asked is under what circumstances would it be just for the court to exercise its discretion to make such an order.

What Criteria is Relevant to the Making of an Order for Interim Costs?

A review of the authorities in relation to the exercise of the discretion to award interim costs establishes that in addition to the de facto property cases of Parker v Parker and Laity v Warren referred to above, other decisions have been made by the Family Court of Australia or the High Court upon appeal from the Family Court. In my view, the issues in dispute between the parties in proceedings for property relief in the Family Court of Australia have sufficient similarity to the issues arising under Part 4 of the Property Law Act (Vic) so as to enable me to usefully consider the approach taken by the Family Court of Australia.

In The Marriage of EF and R Zschokke[4] the full court of the Family Court of Australia gave consideration to an application for an interim costs order under s.117(2) of the Family Law Act 1975. The Full Court concluded that at least five factors might be relevant to the making of an order for interim legal costs. Those five factors were also identified by Nygh J In the Marriage of Poletti.[5] They are (1) a complexity in the financial affairs of the respondent, (2) a need for an expert investigation into the financial affairs of the respondent, (3) a position of considerable financial strength held by the respondent, (4) a capacity on the part of the respondent to meet his own ongoing litigation costs, (5) an inability on the part of the applicant to meet her ongoing litigation costs from her own income, assets or financial resources. In addition, it appears to me that a further relevant issue is that the applicant should have some reasonable prospect of success in the proceeding. Clearly it would be unfair for orders to be made for a defendant to finance or partly finance the conduct of litigation against him if that litigation had little prospect of success. This issue was referred to in Zschokke (above cited) at p.781 when the Full Court said -

"If on a brief consideration of those matters, it seems likely to the Court that the party who is the applicant for the interim order for an advance of funds from the other party will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made;"

Likewise in Laity v Warren, McLaughlin M stated at p.77,351:

"It is also relevant in an application of this nature to consider the likelihood of the ultimate success of the plaintiff."

As is submitted by Mr Davis on behalf of the plaintiff, all authorities are unanimous that the requirement of justice is a significant matter in an application for interim legal costs. In Parker (above cited) at p.76,573, Bryson J stated:

"In my view, there is no realistic prospect of the plaintiff investigating and preparing for the hearing on a proper basis, presenting her case on a proper basis or obtaining justice, unless perhaps by accident, unless she has the benefit of an investigation by Duesburys or some other similarly qualified people. Given the comparison of the resources of the parties and their admitted domestic circumstances and the plaintiff's involvement in the care of young children, she would not, it appears to me, have any real prospects of obtaining justice unless the order sought is made."

In Poletti v Poletti[6] the full court of the Family Court approved of a statement in Shepherd v Shepherd [1905] p.185 where it was said:

"It is impossible to do justice if a woman who is attacked cannot put the court in possession of all the facts, and fight her case and deal with it properly, unless she has funds to do it."

It is convenient to consider first whether or not the plaintiff's claim has reasonable prospects of success. The plaintiff makes claim against the defendant under a number of heads of claim. They include claims for interest in property, both pursuant to s.285 of the Property Law Act (1958) (Vic) and by way of a constructive trust for damages for breach of confidentiality, for intentional infliction of emotional distress, for invasion of privacy, for assault, for detinue and conversion and for exemplary damages. It is useful to summarise briefly the issues which are raised by the statement of claim and by the amended defence so that the application made by the plaintiff can be put in context with the claims made in the writ.

Claim for an interest in property by reason of De Facto relationship.

By her statement of claim the plaintiff asserts that between 13 March 1990 and 20 October 1996 the parties lived in a defacto relationship. The plaintiff alleges that twin children of the relationship were born on 31 December 1990. The plaintiff claims that the defendant holds his interest in the property situated at 22 Orrong Crescent, Caulfield North on trust for the plaintiff, beneficially as to 50% and orders are sought that the interests of the plaintiff and the respondent be adjusted accordingly. The plaintiff alleges that she paid the total sum of $68,510 which was applied towards the mortgage payments of the property in question. In addition, the plaintiff alleges that the respondent is or has been the sole proprietor of land situated at 37 Otira Road, Caulfield North, 59 Hotham Street, St Kilda, and 120 Westbury Street, St Kilda, and has money deposited with a variety of financial institutions. The plaintiff claims that during the period of the relationship she contributed in the capacity of home maker and/or parent to the welfare of the respondent and to the welfare of the family. In relation to her claim for adjustment of interests in real property pursuant to s.285 of the Property Law Act, she seeks 50% of the interest in 22 Orrong Crescent, Caulfield North.

In his amended defence filed on 5 June 2000, the defendant admits that he lived in a defacto relationship with the plaintiff between March 1990 until early July 1993. He denies that the parties separated in October 1996 and says that the separation of the parties in July 1993 was final. This issue is the subject of intense debate between the parties and there is evidence that on other occasions the plaintiff has made statements that the relationship ended in July 1993. Clearly this matter will be the subject of evidence and dispute at trial and in the circumstances it is not appropriate that I make any definitive finding on the matter. However, there is before me sufficient evidence to say that there can be no great confidence that a court will finally hold that the relationship in question extended for longer than the period of slightly more than three years. It is apparent, however, that the plaintiff is likely to establish that during the period of the relationship she made a contribution at least in the capacity of home maker and parent to the welfare of the respondent and to their family. It is apparent, also, that a valuation of the property at 22 Orrong Crescent, Caulfield must be obtained for the purposes of the litigation.

Equitable claims for an interest in property by way of constructive trust

The plaintiff alleges that acting on the faith of promises made by the defendant she was induced to and did commence the defacto relationship. She asserts that it was agreed by the defendant in July 1993 that in consideration of her relationship with the defendant being resumed after a separation the defendant agreed to transfer 50% of his interest in Orrong Crescent, Caulfield to her. Accordingly the claims made by the plaintiff for an equitable interest in property are an alternative claim to the claim made pursuant to s.285 of the Property Law Act.

The plaintiff alleges that subsequent to the relationship coming to an end she engaged in sexual relations with the defendant. She asserts that in November 1996 the defendant made a video tape of the applicant and the defendant engaging in sexual relations and subsequently released such video tapes to a number of persons. The plaintiff makes claim in relation to these matters for breach of confidence. This claim is made upon the basis of Stephens v Avery and Ors [1988] 2 WLR 1280. Alternatively, in relation to these events, the plaintiff makes claim for intentional infliction of emotional distress and invasion of privacy. She claims exemplary damages in relation to these matters.

Likewise, it is inappropriate for me to express any view on the likelihood of the success of these claims, particularly in circumstances where there is little evidence in relation to the matters in question before me. However, although the claims are unusual, I accept that if they are established, then the Court may conclude that it was unconscionable for the defendant to release such material with the knowledge that it was confidential, and that damages may be awarded. Whether or not damages will be awarded in the vicinity of $100,000 as "conservatively estimated" by counsel for the plaintiff is perhaps another matter.

The plaintiff alleges that she was assaulted on eight separate occasions between April 1992 and November 1996. If the plaintiff establishes the truth of some of these matters she will no doubt be entitled to damages for assault. Whether or not she will receive a verdict for $100,000 thereof as estimated by counsel for the plaintiff is likewise speculative in circumstances where no physical injury in any such assault is asserted to have caused permanent damage.

The claim in detinue and or conversion relates to a claim that the Defendant refused to return personal goods to the Plaintiff at the end of the relationship. It is a simple factual issue to be determined by the court. The claim for exemplary damages depends upon what facts (if any) the plaintiff establishes in relation to her claim for breach of confidence and the applicable law to such facts. Accordingly, it appears to me on the limited material before me that the claim made by the plaintiff is regular on its face, is bona fide, and discloses a cause of action and has some prospect of success, although the plaintiff may not achieve the sum of $400,000 which has been estimated by her solicitors as a "conservative" result.

Does the plaintiff have an ability to meet her ongoing litigation costs from her own income, assets or financial resources?

Having regard to the plaintiff's financial statements sworn on 26 August 1998 and 28 September 2001, and the affidavit of the plaintiff sworn on 26 July 2001, together with the affidavit of her solicitor, Carmelina Morrison, sworn on 26 July 2001, I am satisfied that the plaintiff is unable to obtain legal aid for the purposes of this litigation and does not have resources available to fund the case, nor does she have a capacity to borrow a sum of money sufficient to fund the litigation.

By affidavit sworn 26 July 2001 the plaintiff has deposed to an average gross weekly income of $730. She has no assets other than personal possessions.

Relative financial strength on the part of the defendant

The plaintiff submits that the defendant is a man of substantial wealth and means, "both declared and undisclosed". In her affidavit sworn 26 July 2001 the plaintiff calculates that "on the most conservative basis" the defendant's total assets are approximately $1.2 million. Paragraphs 6 to 20 of that affidavit set out in detail the basis of that estimate which does not require further analysis here. However, it is relevant to observe that in his affidavit in opposition to the application for interim litigation costs dated 21 September 2001, the defendant disputes the matters deposed to by the plaintiff but provides no detailed response. On 3 October 2001 the defendant filed a document sworn that day as an "affidavit of financial circumstances". The document in question is a "form 17" being a financial statement for use in the Family Court. This document asserts that the total assets of the defendant as at that date was $977,750 and that his liabilities were $515,661. Of this sum, contingent capital gains tax on any future sale of 22 Orrong Road and 37 Otira Road, Caulfield North was stated to be $392,000. It is difficult to see the basis upon which the defendant would be liable for capital gains tax upon his own residence. The defendant asserts that he had an average weekly income of $74. It should be observed that the defendant has not declared any rental income from 22 Orrong Crescent, Caulfield North which has, it would appear, been untenanted since May 1996. The reason why the defendant has chosen not to derive an income from this source is unclear, but one inference which is open is that he is able to survive financially without doing so.

I do not consider it appropriate upon this application to conduct a detailed analysis of the financial position of the defendant, even if the material before me is sufficient to do so. However, accepting the affidavit of financial circumstances filed by the defendant 3 October 2001, I am satisfied that it can be said fairly that the defendant is in a financial position considerably stronger than that of the plaintiff. It is apparent from that statement that the defendant has modest needs. He owns a unit at 22 Orrong Crescent, Caulfield North, as well as his own home at 37 Otira Road, North Caulfield. He has the capacity to earn a greater income, should he chose to do so, by renting the Orrong Crescent unit to tenants. Accordingly, his financial position is not only stronger than that of the plaintiff but has the potential should he choose to maximise his position, to produce a more substantial income.

Does the defendant have the capacity to meet his ongoing litigation costs?

It is apparent from the defendant's affidavit of financial circumstances that he has the capacity to meet the reasonable costs of the litigation of this case. He has chosen to defend the proceedings in person. He asserts in his affidavit sworn 21 September 2001 that he does so as he is unable to meet his litigation expenses. However, it is apparent from his own affidavit that he has the capital means to retain legal advice. It appears to me that the defendant has chosen to be unrepresented, and indeed upon my observation, he appears to have a personal interest, if not enjoyment, in conducting and arguing the case, and preparing documents, that is beyond the issue of any necessity to represent himself. As the Full Court of the Family Court said in Z_schokke_[7]:

"We would agree that where the party who is in possession of the bulk of the parties' assets chooses not to be legally represented (as would seem to be the position in the present case) that would not as a general rule be a relevant consideration in determining an application by the other party for an advance to funds to permit that other party to prosecute his or her case. ... "

In this regard it might be observed that I have little doubt that the defendant's interests would be far better protected by his obtaining legal advice. First, there can be no doubt that this litigation (and that which preceded it in the Family Court and other courts) has been made more complicated substantially by reason of the "paper warfare" which has taken place between the parties. No doubt all litigation ought to be resolved rather than litigated. However, this particular case is a case which should be resolved as there can be no doubt that substantial legal costs will continue to be incurred, whatever the result. Were the defendant legally represented his interests could be protected by negotiation, offers of compromise and by the provision of appropriate independent advice. Given sensible advice, a mediation could well resolve some or all of the issues. In my view, the fact that the defendant has chosen to represent himself cannot be used by him as an argument that he does not have the capacity to meet his litigation expenses. Indeed notwithstanding the concerns which have been demonstrated in relation to the capacity of the plaintiff's solicitor to conduct this litigation on her (the plaintiff's) behalf, there is little doubt in my mind that her costs are being increased by reason of the self-representation of the defendant.

Is there complexity in the financial affairs of the defendant?

In the affidavit of financial circumstances sworn on 3 October 2001 the defendant declares that he has an interest in two properties, 22 Orrong Crescent and 37 Otira Road, Caulfield North; the funds of $85,000 in the Bank of Melbourne account, which have been frozen, and a Visa card, together with a private debt of $45,000. On this basis, his financial affairs are simple and straightforward and require little investigation. However, an affidavit of particular discovery of documents sworn 19 July 2001 by the defendant reveals numerous transactions with a Bank of Melbourne term deposit account, Westpac, Metway Bank, Household Building Society and the Commonwealth Bank during the period relevant to this proceeding. It may well be that the assets and income of the defendant are as he states. However, in my view, those advising the plaintiff are entitled to have what is known of the plaintiff's financial affairs considered by an accountant if those matters are relevant to the claim made by the plaintiff. In particular, the plaintiff makes assertions, which are disputed by the defendant, that she paid him $68,510 during the relationship in relation to mortgage repayments on his real property. It is reasonable to examine financial records in relation to this matter alone. Clearly, these would be relevant to the plaintiff's claim under s.285 of the Property Law Act.

In my view, on the material before me there is no significant complexity about the financial affairs of the defendant as far as they are known to the plaintiff. It is not suggested, for instance, that the defendant has assets held by trusts or corporate entities. As far as is known, his assets consist of interests in two real estate properties and in bank and/or investment accounts. However, as stated above, I consider that in all the circumstances a competent investigation of his financial affairs is justified.

Should an Order be made for the payment of interim legal costs?

Although this proceeding has produced a great deal of documentation and large amounts of costs have been consumed, it cannot be said that it is a proceeding of great complexity. The claim for damages for assault is dependent upon whether the plaintiff or the defendant is to be believed. That is a relatively simple factual issue to be resolved. Likewise, the claim made for breach of confidence, although a somewhat unusual claim, nevertheless depends upon relatively simple factual issues to be determined in the light of the applicable law. In my view, there is nothing of great complexity in the hearing and determination of these issues. The most complicated issue relates to the claim for an interest in property made pursuant to s.285 of the Property Law Act. However, even this claim is less complex than many such claims that come before this court. The plaintiff makes a claim for 50% of the interest in the property situated at 22 Orrong Crescent, Caulfield North. There is no dispute between the parties that a de facto relationship existed between them for a period of a minimum of three years and four months and that the defendant admits that in the course of the relationship, the plaintiff and the defendant had twin children. It appears likely that at the minimum, the plaintiff made a contribution in the capacity of home-maker and parent during the period of the de facto relationship, be it that the length of that relationship is just over three years or just over six years in length.

However, not withstanding the relatively straightforward nature of the case, it has been bedevilled by delay, failure of one or other of the parties to comply with relevant dates and what might be properly described as "paper warfare" between the parties. It is imperative that it be brought on for hearing in the near future, not only to avoid the wastage of the resources of the parties, but also to avoid the further extravagant use of this court's time on this litigation.

It is obvious that the true value of the property situated at 22 Orrong Crescent Caulfield North, and which is the subject of the claims made by the plaintiff pursuant to s.275 of the Property Law Act must be established. Furthermore, the plaintiff alleges that she made a substantial contribution to the renovation of the property owned by the defendant at 37 Otira Rd Caulfield North. These properties require to be valued for the purposes of the valuation of any interest which may be determined to be held in them by the plaintiff by reason of her alleged contributions. I accept the affidavit of Mr Connelly sworn 17 July 2001 that the cost of such valuation will be up to $1,500.

The estimate of the cost of the investigation of the financial affairs of the applicant, given by Mr Sharp on affidavit of up to $12,000 does not appear to me to be unreasonable in all the circumstances. The only issue of concern to me is whether some of this work may not be relevant to the claims which are established in the end result.

However, taking into account the claim made by the plaintiff that she has contributed to the financial resources of the defendant (as set out in Schedule B of her Statement of Claim) and furthermore, to the extent of the discovery now made by the defendant, in the end result, I conclude that such financial investigation will prove to be of relevance and should be obtained. In this regard, it should be remembered that the defendant has chosen not to have legal representation. Were it the fact that he was legally represented, such investigation of his assets may not be necessary as competent solicitors would discover the relevant material in an orderly fashion.

I accept that it is reasonable to obtain an appropriate medical report in relation to the alleged post-traumatic stress disorder suffered by reason of alleged assaults and other matters. I accept that the reasonable cost thereof is in the order of $1,500.

I turn now to the issue of the payment in advance of professional legal costs. The affidavit of the solicitor for the plaintiff, dated 26 July 2001, states the cost of the proceedings up until February 2001 to be $115,109.77. That estimate includes counsels' fees of $96,160 and solicitors' fees of $18,941.77. It should be observed that these calculations do not include the cost of the application before me which, not withstanding the cost saving of not being transcribed, nevertheless occupied four days with subsequent written submissions being filed over following months. Although the quantum of costs already incurred appears somewhat surprising to me, it would be inappropriate for me to form any view at this stage of the proceedings as to the cause of or the reasonableness of such a substantial sum having been incurred well before the trial of the proceeding.

Counsel for the plaintiff submits that the sum which should be ordered to be paid to the plaintiff by the defendant is $85,000. Of this sum, it is said more than $70,000 should be applied to legal costs. In her affidavit sworn 26 July 2001, the plaintiff's solicitor, Ms Morrison deposed that she was an employee solicitor who has had the care and conduct of the plaintiff's proceeding since 1996. Ms Morrison was then a sole practitioner conducting practice under the name of Morrison Bianchi. In May 1999, Ms Morrison closed her practice and commenced full time employment with Messrs Amerenas, who then conducted practice in Sandringham. The plaintiff's file was transferred to Amerenas. In March 2000, Ms Morrison left the employ of Messrs Amerenas, and commenced employment with the plaintiff's current solicitors, Lucas Neale. This is because Amerenas had ceased litigation practice. Ms Neale deposes that Amerenas have refused to release the file in this proceeding pending payment of fees owed to them which have been stated to amount to $9,051.97. It would appear that this sum has not been taxed or independently assessed. She further states that Lucas Neale will not continue to act for the plaintiff unless funds are advanced to pay for counsel and other experts. It should be noted that the sum of $115,109.77 makes no allowance for the cost of trial, which Ms Morrison estimates will take between eight and ten days to hear, with preparation involving conferences with in excess of 20 witnesses estimated to take at least four days.

The claim made by the plaintiff for an award of interim litigation costs is a substantial claim. I have some doubt as to whether the "very conservative calculation" of the potential likely verdict in favour of the plaintiff in a sum of $400,000, as submitted by counsel for the plaintiff, is entirely realistic. From the viewpoint of the defendant, the de facto relationship did not exceed three and a half years. There does appear to be a real issue on the material before me, as to the length of the relationship between the parties. Putting aside the claim made by the plaintiff for alteration in property interests, it is clear that the other claims made by the plaintiff are disputed vigorously. The claims in assault and breach of confidence depend entirely upon who is believed. Although, I accept that there is at the least a strong possibility that the plaintiff will succeed in her claim for relief under s.285 of the Property Law Act, the quantum of that relief depends upon the length of the period of the relationship and the extent of her contribution.

It is arguable that the costs incurred to date are disproportionate to the amount the plaintiff may receive, particularly if an order is made, as it well might be, in relation to any transfer of real property interests, that each party pay its own costs.

In my view, it would not be just, in all the circumstances of this case, to make an order for payment by the defendant of the sum of $85,000 in interim legal costs, which sum would not be recoverable by him in the event that the plaintiff does not succeed, or succeeds only partially, in her litigation. This case does not involve circumstances of a lengthy relationship where the defendant is in control of substantial assets, which have clearly been acquired during the relationship, and to which it can be said the plaintiff has made substantial contribution financially, or in the other ways contemplated by the Property Law Act over a long period of time. This is not a case where it is obvious that any award obtained by the plaintiff will clearly and substantially exceed any likely verdict. It is not a case where it would be unjust to not enable the plaintiff to conduct her litigation out of resources to which she clearly made a substantial contribution.

In my view, however, justice does require that the plaintiff have the ability to conduct her proceedings by being able to provide evidence to the court which is relevant to the proceedings. As stated previously, I believe it will be necessary to obtain valuations of the property referred to above. Although I have some doubt as to whether or not in the end result a financial analysis as proposed by Mr Sharpe will prove to be entirely relevant, I am satisfied that in circumstances where the defendant has chosen to be unrepresented, the provision of such material will save considerable time and cost and be of assistance to the Court.

I have considered anxiously the issue of whether or not the legal professional costs of the plaintiff should be paid by the defendant. As stated above, I do not consider it just that the sum of $85,000 be paid. In the circumstances, however, I consider it a proper exercise of discretion to order that an appropriate payment be made to Messrs Amerenas to enable their file to be released for use by the plaintiff. It is difficult to see how this litigation can be conducted by the plaintiff without that file. However, it is apparent that the costs claimed by Messrs Amerenas should be taxed. As to other costs incurred in the course of this proceeding, it appears to me that the assessment of the reasonableness of such costs should be considered at the conclusion of the proceeding and that no order should be made at this time. It is clear that even the payment of $85,000 will come nowhere near covering the costs which have been incurred in the past, and which will be incurred in the future, if the plaintiff continues to retain solicitors and counsel. Those solicitors and counsel are in a far better position than I am to consider the real likelihood of the plaintiff's litigation succeeding to a point where an order for costs of the magnitude now under consideration will be made. No doubt, if they consider the prospects of success are as good as they have been represented to me, then the plaintiff's legal advisers will, in accordance with the fine tradition of the legal profession, continue to assist the plaintiff. In this regard, it should be observed that the plaintiff has the security of the continuation of the order of Beach J relating to the frozen Bank of Melbourne account. In any event, in the end result, if the circumstance is that the plaintiff is not represented in these proceedings, it is likely that sufficient work has already been done to enable the issues between her and the defendant to be adequately resolved by the court. Justice does not require an order of a sum of $85,000 to be paid to her solicitors in recompense of past legal expenses at this stage of the proceedings. An order of this description may present a risk of injustice to the defendant.

Accordingly, the orders I propose to make are as follows:

1. That pursuant to section 23A of the Limitations of Actions Act 1958 (Victoria) the period during which the Plaintiff may commence an action against the Defendant in respect of the assaults referred to in paragraphs 65 and 67 of the Plaintiff's Statement of Claim filed on 3 December, 1999 be extended nunc pro tunc until 4 December, 1999.

2. That within 21 days the defendant pay to Messrs Lucas Neale, Solicitors, the sum of $15,000, being $1500 on account of valuation fees, $1500 on account of a medical report, and $12,000 in relation to a financial investigation, on account of the interim disbursements of the Plaintiff and that the said sum be taken into account and in such manner as the trial Judge may determine.

3. That for the purpose of satisfying the payment referred to in paragraph 2 of this order, the defendant sign any necessary cheque or other document and do all acts and things necessary to pay to Messrs Lucas Neale, Solicitors, and no other person or entity, the said sum of $15,000, from the sum of $85,000 (plus agreed interest) held in the defendant's Bank of Melbourne Account No. 83 284 507 and that notwithstanding paragraph 3(a) of the order of The Hon. Justice Beach made on 3 December, 1999, the Bank of Melbourne be permitted to release and pay to Lucas Neale, Solicitors, from such funds held in the defendant's said account.

4. That if within 21 days the defendant fails to sign any necessary cheque or other document and do all acts and things necessary to pay to Messrs Lucas Neale, Solicitors, the payment referred to in paragraph 2 of this order, the Prothonotary of the Court be appointed to sign any necessary cheque or other document in the name of the defendant and do all acts and things necessary to effect the said payment.

5. That Messrs Lucas Neale hold such sum of $15,000 on trust for the sole purpose of payment of the disbursements referred to in paragraph 2 of these orders and in the event that, after payment of such disbursements a balance remains, such balance is to continue to be held on trust until further order of the Court.

6. Liberty to apply generally, but in particular in relation to any order required to be made in relation to the costs payable to Messrs Amerenas in order to obtain release of the plaintiff's file.

7. Costs of the plaintiff's summons of 26 July 2001 and 29 November 2001 and of the defendant's summons of 19 October 2001 to be reserved.

I have reserved costs in relation to each summons as the parties have not had the opportunity to make submissions in respect thereto consequent upon my findings. However, in order to assist the parties, and in the absence of submissions to the contrary, I consider that the appropriate orders should be to reserve the costs of the plaintiff's summons of 26 July 2001 to the trial judge, make no orders as to costs in relation to the plaintiff's summons of 29 November 2001 and to order that the plaintiff's costs of the defendant's summons of 19 October 2001 be taxed and paid by the defendant.

I have not made any order in respect of the costs of Messrs Amerena as those costs have not been adequately assessed. In my view they should be taxed as between solicitor and client and the taxed sum should be paid by the defendant in order to enable the plaintiff to have access to her file so she can conduct the litigation, whether in person or by her legal representatives. However, I will not make any order in relation to this matter until appropriate submissions are put before me to ensure the costs claimed are reasonable.

It is appropriate to say that the conduct of this litigation to date is an example of the type of litigation which raises serious concerns of the judiciary and the public as to issues of proportionality. The costs of this proceeding, as presented to me, are already out of all proportion to the nature of the litigation. Whilst it is true that the decision in Re: Wakim has had a serious deleterious effect upon the progress of the litigation, the attitude of the parties appears to me to be that interlocutory litigation is to take place irrespective of cost. It is imperative, both in the interests of the parties and of the resources of this court, that this proceeding come on for trial in the near future. For these reasons, and because of my knowledge of the background of the proceeding, I propose to direct that any necessary further interlocutory matter be directed to my associate. Furthermore, it is my intention to fix the matter for trial as soon as possible. The pleadings in their present state are sufficient to make the nature of the case clear to each party and to the Court. Apart from the financial issues to be investigated, and the medical and valuation reports referred to above being obtained, and the defendant complying with orders to provide inspection of documents, this matter should now be ready to proceed to trial as a witness action without further significant interlocutory expense. Finally, I have little doubt that the interests of all, but in particular the defendant would be served by him obtaining independent legal advice and/or representation.

[1] Repco Corporation v Scardamaglia [1996] VicRp 2; [1996] 1 VR 7

The decision in Re Wakim; ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 was handed down by the High Court on 17 June 1999. On 5 November 1999, and after both the plaintiff and the defendant appeared by their counsel before him in the Family Court, Kay J noted an agreement made by the defendant not to deal with the property the subject matter of (inter alia) the order of Faulks J. referred to in paragraph 5 above.

(1996) 20 Fam LR 766

(1990) 15 Fam LR 794

(1992) 15 Fam LR 794

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Parties

Cases Cited (7)