Pachar & Mahal (No 3) [2025] FedCFamC1F 568 (21 August 2025)

...if as a result of non-cooperation, obstructiveness or otherwise, one of the parties causes the conduct of the proceedings to be unduly prolonged or made unduly expensive to the other side, clearly an order for costs would be warranted.

1. This is a case where precisely that type of conduct has occurred.

Section 114UB(3)(d) - whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. This sub-section is irrelevant to my determination.

Section 114UB(3)(e) - whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. In relation to the twenty-two subpoenas filed by the wife on 14 April 2022, 27 November 2024 and 30 December 2024, the wife was wholly unsuccessful in resisting the applications and Notices of Objection filed by F Pty Ltd. Similarly, the wife was unsuccessful with respect to her joinder application filed on 20 January 2025.

Section 114UB(3)(f) - whether any 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

1. I was not addressed in relation to this consideration.

Section 114UB(3)(g) - such other matters as the court considers relevant

1. Section 95 of the Act is in the following terms:

(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

(a) in a way that ensures the safety of families and children; and

(b) in relation to proceedings under this Act in which the best interests of the child are the paramount consideration - in a way that promotes the best interests of the child; and

(c) according to law; and

(d) as quickly, inexpensively and efficiently as possible.

(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:

(a) the just determination of all such proceedings;

(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;

(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;

(d) the disposal of all such proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

1. Section 96(1) of the Act, in the same manner as s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) imposes a duty on litigants in this Court to conduct their litigation consistently with the overarching purpose. Section 96 of the Act is in the following terms:

96 Duty to act consistently with the overarching purpose

Duty of parties

(1) The parties to proceedings under this Act must conduct the proceedings (including negotiations for settlement of the dispute to which the proceedings relate) in a way that is consistent with the overarching purpose of the family law practice and procedure provisions.

1. If a party is conducting proceedings consistently with the overarching purpose of the Act, then he or she must be assiduous and careful with respect to the terms of any subpoena filed by him or her to ensure that the documents being sought are clear and relevant to the issues in dispute in the proceedings.
2. The requirements of efficacy, timeliness, cost and proportionality apply to every aspect of litigation in this court. Litigants must make efforts to rationally and carefully present his or her case and avoid unnecessary arguments.
3. For the reasons identified above, the wife has failed to conduct her case in a manner, which was consistent with the overarching purpose. Further, the wife acted in a manner, which precluded the efficient disposal of the overall caseload of the court.
4. I also have regard to paragraph 1.4 of the Court's Central Practice Direction, which reads as follows:

The Courts expect parties and their lawyers to have in mind, at all times, the cost of each step in the proceedings and whether it is necessary, and to avoid unnecessary process-driven costs and unjustified use of court resources. In everything they do, parties and lawyers are expected to approach proceedings in a manner directed towards identifying the issues in dispute and ascertaining the most efficient, including cost efficient, method of resolution or determination. This includes giving proper consideration to identifying the issues in dispute, complying with their obligation to provide full and frank disclosure in a timely manner (see Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Family Law Rules)), engaging in productive and resolution-focused communication with other parties, making appropriate admissions and pressing only issues of genuine significance. Ambit claims should be avoided and aggressive and unnecessarily adversarial conduct will not be tolerated. At all stages in the proceedings, parties must avoid filing evidence that is unnecessarily lengthy or only of limited relevance to the issues genuinely in dispute. Parties should limit the number of witnesses they rely on to those necessary to prove or disprove those issues truly requiring determination.

1. Paragraph 1.5 of the Central Practice Direction provides that any failure to comply with these requirements may attract costs orders against parties. For the reasons discussed above, I have determined to exercise my discretion to make a costs order in favour of F Pty Ltd.

1. It is the responsibility of the court to balance the various matters set out in s 114UB(3) of the Act to arrive at a result, which it considers just. That said, litigants must conduct his/her litigation in a manner, which is focussed and avoids unnecessary expenses to third parties. I consider that the wife failed to do so. For these reasons, I will order the wife to pay the costs of F Pty Ltd.
2. F Pty Ltd seeks an order for indemnity costs in a sum of $18,419.50 calculated as follows:

1. The Full Court has repeatedly emphasised that an indemnity costs order should only be made in "exceptional" cases.[24] As was said by Murphy J in Prantage & Prantage [2013] FamCAFC 105; (2013) FLC 93-544 at [152]:

Indemnity costs are confined to "an exceedingly rare situation" ... in jurisdictions where "the usual rule" is that a successful party receives an order for costs (i.e. "costs follow the event"). They might, then, be seen to be more so in this jurisdiction where the "usual rule" is that "each party ... shall bear his or her own costs (s 117(1)).

1. Examples of the nature of the conduct required to support an indemnity costs order are set out in the commonly quoted passage from Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 at 256 and 257:

... it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud... evidence of particular misconduct that causes loss of time to the court and to other parties... or in wilful disregard of known facts or clearly established law... the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions... an imprudent refusal of an offer to compromise...

1. Although the wife's conduct in relation to the filing of subpoenas and an application to join F Pty Ltd to the proceedings was poor, I am not persuaded that the circumstances of this case are "exceptional" such that it is appropriate to make an order for indemnity costs in favour of F Pty Ltd. Further, and as I discussed below, it would be difficult for me to make such an award in any event given that F Pty Ltd did not provide me with an Itemised Account or a Bill of Costs.

1. Rule 12.17 of the Rules sets out the methods of calculating costs. These include the Court fixing a specific amount for costs (r 12.17(1)(a)) or an order for the costs to be assessed on a particular basis (r 12.17(1)(b)).
2. In Stoian & Fiening (Costs) [2014] FamCA 944 ("Stoian & Fiening") at [91], Kent J endorsed the principles for applying a rule equivalent to r 12.17 of the Rules when referring to r 19.18(1)(a) of the now repealed Family Law Rules 2004 (Cth) as adumbrated by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [9].[25] Those principles include:
   1. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation;
   2. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;
   3. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;
   4. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;
   5. the gross sum "can only be fixed broadly having regard to the information before the Court";
   6. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter;
   7. in terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No. 2) (1995) 57 FCR 119, put the matter as follows, at [16]:

'On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary "fail safe" discount on the cost estimates submitted to the Court: Leary v Leary at 265 ...

1. Consistent with those principles, it has been determined that where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum. By doing so, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill.[26]
2. The difficulty in awarding costs in a fixed sum amount in this case is that F Pty Ltd have not provided me with an Itemised Account or a Bill of Costs.
3. Notwithstanding this, I am also troubled by the modest amount claimed by F Pty Ltd, and I wish to avoid the parties the expense of any further hearing.
4. When considering the quantum of costs payable by the wife, I have regard to the fact that subsequent to and including its involvement on 26 November 2024, F Pty Ltd attended:

(a) A mention on 26 November 2024;

(b) An Interim Defended Hearing before a Senior Judicial Registrar on 12 December 2024. In preparation for that hearing, F Pty Ltd filed:

(i) An Application in a Proceeding and an Affidavit in Support; and

(ii) An Outline of Case Document;

(c) On 9 December 2024, F Pty Ltd filed three Notices of Objection in relation to subpoenas filed by the wife on 27 November 2024;

(d) On 9 January 2025, F Pty Ltd filed Notices of Objection in relation to each of the eighteen subpoenas, which were filed by the wife on 30 December 2024;

(e) On 22 January 2025, F Pty Ltd was represented at a hearing before me at which time, the proceedings were listed for an Interim Defended Hearing on 13 February 2025;

(f) On 29 January 2025, F Pty Ltd was represented at an Interim Defended Hearing before a Judicial Registrar in relation to the subpoenas filed by the wife on 30 December 2024. Notation N to the Orders made by that day identify that the hearing was about ninety minutes in duration. In preparation for the hearing, F Pty Ltd filed an Outline of Case Document; and

(g) On 3 February 2025, F Pty Ltd filed a response to the wife's application seeking to join the entity as a party to the proceedings. The applications were listed before me on 13 February2025 for an Interim Defended Hearing. On the same day, I heard argument in relation to the eighteen Notices of Objection filed by F Pty Ltd on 9 January 2025. In preparation for that hearing, F Pty Ltd filed an Outline of Case Document.

1. Pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, I am permitted to make an order that F Pty Ltd be paid its costs fixed in a specific amount.
2. Absent an Itemised Account, I have considered the work performed by the solicitor for F Pty Ltd by reference to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 so that I might satisfy myself as to the reasonableness of the legal fees charged by its solicitor.
3. I find that it is just for the costs of F Pty Ltd to be fixed in a sum of $11,000.
4. By reference to the invoices annexed to the written submissions filed by F Pty Ltd and the history of the litigation, I consider that it is logical, fair and reasonable for the wife to make such a payment to the third party. I order this sum to be paid within twenty-eight (28) days of the date of this judgment.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Pachar & Mahal (No 2) [2025] FedCFamC1F 451.

[2] Affidavit of Ms EE filed 26 November 2024, paragraph 3.

[3] Affidavit of Ms EE filed 26 November 2024, paragraphs 8 and 9.

[4] Affidavit of the wife's solicitor filed 5 December 2024, paragraph 4.

[5] Affidavit of Ms EE filed 26 November 2024, paragraph 7.

[6] Affidavit of Ms EE filed 26 November 2024, paragraph 8.

[7] Affidavit of the wife's solicitor filed 5 December 2024, paragraph 4.

[8] Affidavit of Ms EE filed 9 December 2024, paragraph 4(b).

[9] Affidavit of Ms EE filed 3 February 2025, paragraph 10.

[10] Parke & The Estate of the Late A Parke (2016) FLC 93‑748; Atkins & Hunt (Costs) [2017] FamCAFC 131.

[11] I and I (No 2) [1995] FamCA 80; (1995) FLC 92-625; Hitch & Hitch [2012] FamCAFC 124; (2012) 47 FamLR 603.

[12] Prantage & Prantage (Costs) [2014] FamCA 850 at [12]; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & another [2005] FamCA 158; (2005) 33 Fam LR 123 at 130.

[13] Order 1, Orders made on 9 July 2025.

[14] Pachar & Mahal (No 2) [2025] FedCFamC1F 451 at [235].

[15] Pachar & Mahal (No 2) [2025] FedCFamC1F 451 at [195].

[16] Pachar & Mahal (No 2) [2025] FedCFamC1F 451 at [195].

[17] Exhibit W3 - Pachar & Mahal (No 2) [2025] FedCFamC1F 451.

[18] Pachar & Mahal (No 2) [2025] FedCFamC1F 451 at [195].

[19] Costs Notice filed by the wife on 23 April 2025.

[20] Order 1, Orders made on 9 July 2025.

[21] Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12] (Bryant CJ, Coleman and Murphy JJ).

[22] Cross & Beaumont [2008] FamCAFC 68 at [60].

[23] [1982] FamCA 57; (1982) FLC 91-263.

[24] Withers & Russell (No 2) [2022] FedCFamC1A 197 at [13]; Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340; Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664; Galbadon & Galbadon [2015] FamCAFC 59; Limousin v Limousin (Costs) [2007] FamCA 1178; (2007) 38 Fam LR 478; and Badawi & Badawi (Costs) [2017] FamCAFC 196.

[25] Stoian & Fiening (Costs) [2014] FamCA 944 at [91].

[26] Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].