AW v WW (No 3)

The Court delivered its principal judgment rejecting AW’s appeal on 23 February 2024: AW v WW (No 2) [2024] NSWSC 146 (Judgment). These reasons assume familiarity, and should be read with, the Judgment. Defined terms in the Judgment have the same meaning in these reasons.

For the reasons which follow, the Court has determined that AW should pay Mrs W’s costs of the proceedings on the ordinary basis up to and including 3 October 2023 and on the indemnity basis on and from 4 October 2023 (including, for the avoidance of doubt, Mrs W’s costs of the costs argument, also on the indemnity basis). The order for indemnity costs is based upon the Court’s conclusion that AW unreasonably failed to accept a Calderbank offer made on behalf of Mrs W by letter dated 28 September 2023 (Offer).

These reasons resolve the costs of the proceedings in their entirety, that is to say including Lindsay J’s determination of AW’s application for leave to appeal on grounds other than a question of law: AW v WW [2023] NSWSC 724.

Mrs W sought this order:

AW did not dispute that he should pay Mrs W’s costs of the proceedings on the ordinary basis, but resisted the application for indemnity costs. AW contended for these orders:

The parties agreed that the Court should deal with this question on the papers (subject to what I record in [16] below). AW’s submissions were prepared by Mr R Allsop, Solicitor. Mrs W’s submissions were prepared by Mr RD Marshall of Senior Counsel with Mr NJ Olson of Counsel.

A fundamental submission underlying Mrs W’s application for indemnity costs was that, contrary to the normal practice in protective matters, AW had conducted the proceedings in an adversarial way.

AW’s adversarial approach was said to be first exemplified by his application to bring fresh evidence in the appeal, an application which failed before Lindsay J. It was submitted that the fresh evidence was something completely unsuited to an appeal of the present kind and should only have ever been deployed in a new application to the Tribunal. The application before Lindsay J was therefore an abuse in the sense described by his Honour in the B v B [2017] NSWSC 1674 at [22] (which I next reproduce with context), being a case in which his Honour also ordered indemnity costs for the period after my initial judgment in those proceedings:

While relevant to the entirety of the proceedings, the essence of Mrs W’s case for indemnity costs after the hearing before Lindsay J is set out in these paragraphs of the submissions filed on her behalf:

Finally, and in the alternative, Mrs W relied on the Offer and an open letter which accompanied it (as to which see [25] below).

It was submitted for AW that the relief which was sought in the Tribunal and in these proceedings, and the terms upon which he was prepared to settle the proceedings set out in a letter dated 15 October 2023 (see [21] below), demonstrated that he was not motivated by self-interest or an ulterior purpose.

In relation to the proceedings before Lindsay J, AW submitted that there was nothing in his Honour’s judgment that suggested that the application was doomed to fail. Mrs W’s application for indemnity costs of that aspect of the proceedings was, it was contended, no more than a rehearsal of the outcome without establishing any of the extraordinary factors that would justify an order for indemnity costs.

Turning to the Offer, it was submitted that Mrs W’s proposal that AW should agree to dismissal of the proceedings and an order that he pay 70% of her costs on the ordinary basis did not sufficiently evidence a compromise so as to have any influence upon the Court’s exercise of its discretion as to costs.

An examination of the history of these proceedings, in addition to my own observation of the conduct of the hearing before me, leaves me in no doubt that AW approached the appeal as adversarial litigation. However, insofar as Mrs W may be taken to be submitting that an adversarial approach to litigation in the protective jurisdiction will in and of itself warrant an indemnity costs order, the Court does not accept such a submission.

While every case must turn on its facts, the consequence for AW of the way he has chosen to conduct this litigation is that the question of costs will be determined in the same way as if these were adversarial proceedings in the Court’s ordinary jurisdiction. AW appears to have recognised this by his acceptance that costs should follow the event (or events, in this case being both the application before Lindsay J and the hearing before me).

Mrs W’s solicitor affirmed two affidavits in support of her costs application. The first (affirmed 6 March 2024) gave a history of these proceedings. The second, (affirmed 8 March 2024) gives a much broader history of the various disputes between AW and Mrs W. The latter affidavit describes that history as “relevant history”, although on any view it goes well outside the confines of evidence of how the present proceedings were conducted. The affidavit prompted this email from AW’s solicitor to my Associate:

Having reviewed the affidavit of 8 March 2024 and its exhibit of nearly 280 pages, I have no doubt that were the Court to permit AW to file evidence in response, this would result in a hearing of at least a day (recalling that the appeal hearing before me only took less than one day) in order to examine AW’s motives or purposes for bringing the litigation. Consistently with the statutory overriding purpose of case management, I would only permit that to occur if Mrs W’s evidence demonstrated a clear and convincing case that such an inquiry was warranted.

The Court is not satisfied that the evidence adduced on behalf of Mrs W warrants the Court embarking upon such an inquiry for three reasons.

First, in other proceedings in this Court between AW and Mrs W, another judge had cause to observe that there had been a “significant breakdown in the relationship between [Mrs W] on the one hand and [AW and his family] on the other”. The motives of parties to family litigation where relations have come to a very low pass are, in the experience of the Court, often mixed between the laudable and the less so, and are usually volatile and deeply subjective. The evidence adduced on behalf of Mrs W does not permit any clear conclusion on the issues concerning AW’s motives for the litigation which Mrs W’s submission raises.

Second, the conclusion that litigation of this type is brought in self-interest or for an ulterior or improper purpose is a serious one, involving the significant consequence of an indemnity costs order for a substantial piece of litigation. Such a conclusion would require the Court to be satisfied to the statutory equivalent of the Briginshaw standard. The evidence adduced could not enable the Court to be so satisfied in this case.

Third, I accept the submissions made for AW that both the nature of the relief which he sought in the Tribunal and on appeal, and a subsequent offer of settlement which he made, are inconsistent with him acting in self-interest or for an improper purpose. It was clear that AW was concerned about the role of KS in Mrs W’s affairs, but AW did not seek to have himself appointed to any role. His concern about KS in itself does not demonstrate improper purpose or ulterior motive. AW’s proceedings in the Tribunal and in the appeal sought the appointment of the Public Guardian and an independent financial manager. That this was AW’s consistent position is also demonstrated by an open offer his solicitor made on the day before the hearing to settle the proceedings on these terms:

In summary, the evidence advanced on behalf of Mrs W does not discharge the civil onus that she bears to enable the Court to reach a state of actual satisfaction that AW’s conduct in these proceedings has been motivated by an improper or ulterior purpose. This conclusion has meant that it was unnecessary for the Court to afford AW an opportunity to go into evidence on the question and, therefore, the matter has been dealt with on the papers against the background of the Court’s rejection of this aspect of Mrs W’s submissions.

Insofar as the hearing before Lindsay J is concerned, the Court accepts AW’s submission that there is no feature of AW’s conduct of that application that would satisfy any of the well-known requirements for an indemnity costs order. While it might be thought to have been unusual, it was not hopeless. Nor was it in any way equivalent to the conduct described by Lindsay J (see [8] above) in B which led to a partial indemnity costs order in that case.

The proper basis for an indemnity costs order in this case is to be found in AW’s failure to accept the Offer.

On 28 September 2023, Mrs W’s solicitor wrote a long (seven page) open letter to AW’s solicitor which set out in detail why Mrs W contended that AW’s appeal was bound to fail. At the forefront of the reasons advanced in the letter was the proposition that the amended summons did not disclose any arguable questions of law. This and related points made in the letter correctly presaged the reasons why the Court dismissed AW’s appeal in the Judgment. The letter concluded:

Accompanying that long open letter, was another letter of 28 September 2023 setting out the Offer:

The hearing before me was fixed for Monday, 16 October 2023. There was no response to the Offer on behalf of AW.

I do not accept Mr Allsop’s submission that Mrs W’s 30% costs concession demonstrated an insufficient element of compromise. There is litigation, of which appeals are often an example, where the principal relief is “all or nothing”. In those circumstances, a concession as to costs is often the only available point of compromise. This is such a case and the Court finds that the concession as to 30% of the costs is sufficient to enliven the relevance of the Offer to the exercise of the Court’s costs discretion.

Other than the point as to compromise, which I have not accepted, AW’s submissions make no other criticism of the Offer. Mrs W has achieved a better outcome than she would have obtained had AW accepted the Offer. That, taken together with the fact that the open letter correctly foreshadowed the reasons why the appeal was dismissed, demonstrates that the failure to accept the Offer was unreasonable. The Court finds accordingly.

Having regard to that unreasonable conduct, the Court will order AW to pay Mrs W’s costs of the proceedings on the indemnity basis from a date determined by reference to the Offer. In the ordinary course, that date would be the next day after the Offer was last open for acceptance. However, I am not satisfied that in this case that date (Saturday, 14 October 2023) would do justice between the parties.

Mrs W’s thirty page outline of submissions for the hearing before me was dated and filed on 11 October 2023. That outline was rendered largely irrelevant by AW’s Senior Counsel abandoning all but a very limited part of the amended summons in opening (see Judgment [8]). It is clear that a great deal of work must have been undertaken by Mrs W’s legal team in the days leading up to the hearing, including in relation to the submissions, on issues that were abandoned for AW at the start of the hearing. The Court should, in the exercise of its discretion, fashion the costs order to reflect the reality that much of Mrs W’s lawyers’ efforts in the week before the hearing were wasted through no fault of Mrs W’s side of the record.

This consideration justifies a closer examination of the point at which it became unreasonable for AW to have rejected the Offer. The offer was sent on Thursday, 28 September 2023. AW had the benefit of solicitors and counsel, all of whom must, given the history of the matter and the imminent hearing, have been well familiar with the issues in the case and the points raised in Mrs W’s solicitor’s open letter of 28 September 2023. Given AW had that legal assistance, the Court finds that three business days would have been a reasonable time within which AW could have received advice and, acting reasonably, accepted the Offer. For this reason, the period from which indemnity costs will be payable will be four business days after the date of the Offer, being Wednesday, 4 October 2023.

Finally, consistently with the conclusion I have reached, I reject AW’s application that Mrs W should pay AW’s costs of Mrs W’s present application for indemnity costs. Mrs W’s costs of that application should also be paid by AW, and on the indemnity basis. This is because Mrs W’s alternative basis for some indemnity costs has succeeded and, in any event, her costs of this application would not have been incurred at all if AW had accepted the Offer.

The orders of the Court are: