CDW v LVE
[2015] WASCA 247 (S)
•28 APRIL 2016
CDW -v- LVE [2015] WASCA 247 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 247 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:140/2014 | ON THE PAPERS | |
| Coram: | MARTIN CJ BUSS JA MITCHELL J | 28/04/16 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to pay respondent's costs on party and party basis by reference to applicable scale of costs under the Legal Profession Act 2008 (WA), unless agreed | ||
| B | |||
| PDF Version |
| Parties: | CDW LVE |
Catchwords: | Family law Costs Whether general position that parties bear their own costs should be departed from Whether indemnity costs order warranted Turns on own facts |
Legislation: | Family Court Act 1997 (WA), s 8, s 210A, s 237, s 244 Family Court Rules 1998 (WA) Family Law Act 1975 (Cth), s 117 Family Law Rules 2004 (Cth), r 19.18, r 19.19 Legal Profession Act 2008 (WA) Rules of the Supreme Court 1971 (WA), O 66 Suitors Fund Act 1964 (WA), s 14 Supreme Court (Court of Appeal) Rules 2005 (WA), r 66 Supreme Court Act 1935 (WA), s 167 |
Case References: | CDW v LVE [2015] WASCA 247 Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 Esdale v Schenk [2012] FamCA 111; (2012) 46 Fam LR 547 K v R [2010] WASCA 237 KD v GB [2014] WASCA 165 (S) Miller v Teale (1954) 92 CLR 406 Norris v Norris (1985) 1 NSWLR 472 Pezet v Pezet (1947) 47 SR (NSW) 45 Proust v Blake (1989) 17 NSWLR 267 Quancorp Pty Ltd v Macdonald [1999] WASCA 101 S v D [2014] WASCA 224 (S) T v L [2006] WASCA 46 (S) T v S [2015] WASCA 225 (S) Wentworth v Rares (Unreported, NSWCA, 20 December 1991) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CDW -v- LVE [2015] WASCA 247 (S) CORAM : MARTIN CJ
- BUSS JA
MITCHELL J
- Appellant
AND
LVE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : ANDREWS M
Citation : CDW and LVE [2014] FCWAM 244
Catchwords:
Family law - Costs - Whether general position that parties bear their own costs should be departed from - Whether indemnity costs order warranted - Turns on own facts
Legislation:
Family Court Act 1997 (WA), s 8, s 210A, s 237, s 244
Family Court Rules 1998 (WA)
Family Law Act 1975 (Cth), s 117
Family Law Rules 2004 (Cth), r 19.18, r 19.19
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA), O 66
Suitors Fund Act 1964 (WA), s 14
Supreme Court (Court of Appeal) Rules 2005 (WA), r 66
Supreme Court Act 1935 (WA), s 167
Result:
Appellant to pay respondent's costs on party and party basis by reference to applicable scale of costs under the Legal Profession Act 2008 (WA), unless agreed
Category: B
Representation:
Counsel:
Appellant : Dr A F Dickey QC
Respondent : Ms G M Anderson
Solicitors:
Appellant : Millsteed Grasso
Respondent : DCH Legal Group
Case(s) referred to in judgment(s):
CDW v LVE [2015] WASCA 247
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Esdale v Schenk [2012] FamCA 111; (2012) 46 Fam LR 547
K v R [2010] WASCA 237
KD v GB [2014] WASCA 165 (S)
Miller v Teale (1954) 92 CLR 406
Norris v Norris (1985) 1 NSWLR 472
Pezet v Pezet (1947) 47 SR (NSW) 45
Proust v Blake (1989) 17 NSWLR 267
Quancorp Pty Ltd v Macdonald [1999] WASCA 101
S v D [2014] WASCA 224 (S)
T v L [2006] WASCA 46 (S)
T v S [2015] WASCA 225 (S)
Wentworth v Rares (Unreported, NSWCA, 20 December 1991)
1 REASONS OF THE COURT: On 4 December 2015 we delivered our reasons for concluding that this court lacked jurisdiction to hear an appeal brought by the appellant (the father) from the decision of a family law magistrate to dismiss his application to vary orders made with respect to parenting arrangements made by a judge of the Family Court of Western Australia in December 2012.1 In short, we concluded that the family law magistrate's order dismissing the father's application was 'an interlocutory order' within the meaning of that expression when used in the Family Court Act 1997 (WA) (Act), with the consequence that the father's appeal lay to the Family Court of Western Australia, rather than to this court. The appeal was therefore dismissed, and orders were made setting a timetable for the exchange of evidence and submissions with respect to the costs of the appeal, and it was further ordered that the issue of costs be determined by the court on the papers. Affidavits have been filed and served and written submissions exchanged in accordance with those orders. After considering the evidence and submissions, for the reasons which follow, we have concluded that the father should be ordered to pay the respondent's (the mother's) costs of the appeal. In the event that the parties are unable to agree with respect to the amount of those costs, they are to be taxed on a party and party basis by reference to the scale of costs applicable to proceedings in this court published pursuant to the Legal Profession Act 2008 (WA) (LP Act).
The applicable legal regime
2 Because the parties were never married, the proceedings relating to the parenting arrangements pertaining to their child, and the appeal to this court, are governed by the Act rather than the Family Law Act 1975 (Cth) (FLA).
3 Section 237 of the Act provides:2
237. Costs - FLA s. 117
(1) Subject to subsection (2) and sections 205SB and 242, each party to proceedings under this Act is to bear the party's own costs.
(2) If, in proceedings under this Act, the court hearing the proceedings is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (3), (5), (6A) and (6) and in accordance with any relevant rules, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.
(3) In considering what order (if any) should be made under subsection (2), a court must have regard to -
(a) the financial circumstances of each of the parties to the proceedings; and
(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; and
(c) the conduct of 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; and
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court; and
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; and
(f) whether a party to the proceedings has made an offer in writing to another 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.
(4) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(5) However, in proceedings in which an independent children's lawyer for a child has been appointed, if -
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer,
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
(6A) If -
(a) under section 207, the CEO intervenes in proceedings; and
(b) the CEO acts in good faith in relation to the proceedings,
the court must not, because of the intervention, make an order under subsection (2) of this section against the CEO, the Department (as defined by the Children and Community Services Act 2004 section 3) or the State.
(6) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, a court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved under the [FLA].
4 Section 237 applies to proceedings under the Act. There are many cases in which it has been assumed that appeals to this court are proceedings under the Act, with the consequence that s 237 provides the legal regime governing the parties' entitlements with respect to their costs of such appeals.3 There is no reason to doubt the correctness of that assumption.
5 It is well established that a superior court of record, such as this court, has jurisdiction to determine whether or not it has jurisdiction, and therefore has a power incidental to that jurisdiction to determine issues of costs relating to the determination with respect to jurisdiction4 irrespective of the outcome of the jurisdictional issue. By parity of reasoning, proceedings dealing with the question of whether this court has jurisdiction under the Act are properly regarded as proceedings under the Act. In Esdale v Schenk,5 Murphy J held, in relation to s 117 of the FLA, which corresponds with s 237 of the Act, that:
[T]he expression 'proceedings under [the] Act' in s 117 includes proceedings brought to determine if there is jurisdiction in respect of proceedings under the Act. The power to award costs pursuant to s 117 is a power ancillary to the exercise of those powers in respect of those proceedings.
6 For these reasons, s 237 of the Act applies to these proceedings. It should, however, be noted that if a contrary view were taken, the authorities to which we have referred establish that the court would in any event have jurisdiction to make orders with respect to the costs of these proceedings in the exercise of a general discretion which would not be constrained by the limitations imposed by s 237 of the Act.
7 It will be noticed that s 237(2) provides that a court exercising the power to order the payment of costs must do so 'in accordance with any relevant rules'. There are differing views reasonably open on the question of whether there are any 'relevant rules' for the purpose of these proceedings. However, for the reasons given below, it is unnecessary to resolve those differing views for the purposes of this case, and as submissions upon this question have not been provided by the parties, it is preferable to reserve its resolution to a case in which the issue has been argued.
8 On the one hand, s 210A of the Act confers specific powers upon the Supreme Court to make rules dealing with applications of the kind specified in that section, including applications for security for costs in relation to an appeal. In fact, no rules of that kind have been made. The section does not specifically empower the Supreme Court to make rules with respect to the costs of appeals to the Court of Appeal pursuant to the Act. However, notwithstanding the express powers to make rules conferred by s 210A, it is at least arguable that the Supreme Court has power to make rules with respect to the costs of appeals to this court under the Act pursuant to s 167 of the Supreme Court Act 1935 (WA) (Supreme Court Act). If the Supreme Court has such a power, it has not been exercised specifically with respect to appeals to this court under the Act, although, of course, there are rules which apply to appeals to the Court of Appeal generally.6 One of those rules deals with specific issues in respect of aspects of costs incurred in the course of appeals,7 but there is no rule dealing generally with the costs of parties to appeals, which are therefore governed by O 66 of the Rules of the Supreme Court 1971 (WA) (RSC). However, O 66 is inconsistent with s 237 of the Act, as it embodies the default position of 'loser pays'. It is at least arguable that any 'relevant rule' within the meaning of that expression in s 237(2) of the Act must be consistent with that section.
9 On this view, the expression 'any relevant rules' in s 237(2) of the Act, when applied to appeals to this court under the Act, would be construed to mean any relevant rules made by the Supreme Court pursuant to either s 210A of the Act or s 167 of the Supreme Court Act. This view is open notwithstanding s 8 of the Act which provides that unless the contrary intention appears, a reference to a court in pt 12 of the Act (which includes s 237) is a reference to the Family Court of Western Australia. That is because it is at least arguable that a contrary intention appears from s 237, to the effect that its terms should apply to all proceedings under the Act, including proceedings in this court in respect of which 'court' should be construed as including a reference to this court.
10 On this view, there are no 'relevant rules' applicable to these proceedings for the purposes of s 237 of the Act, other than perhaps O 66 of the RSC.
11 On the other hand, s 244 of the Act confers various powers to make rules upon the judges of the Family Court of Western Australia. Those powers include, by subsection (1), the power to make rules with respect to the practice and procedure to be followed in the Family Court of Western Australia or in the Magistrates Court exercising jurisdiction under the Act. Subsection (2) of s 244 confers a more general power upon the judges of the Family Court of Western Australia to make rules not inconsistent with the Act or regulations made under the Act prescribing all matters that are required or permitted by the Act to be prescribed by rules. Subsection (3) of s 244 specifically provides that the rules to be made by the judges of the Family Court of Western Australia may make provision for:
(h) matters relating to the costs of proceedings (including solicitor and client costs and party and party costs) and the assessment or taxation of those costs …
12 It is at least arguable that the generality of the rule-making powers conferred by s 244 of the Act empowers the Family Court of Western Australia to make rules with respect to the costs of proceedings under the Act generally, including proceedings under the Act brought in the Supreme Court.
13 Section 244(4) expressly provides that rules made under the Act may 'adopt or apply any rule for the time being in force under the [FLA]'. That power has been exercised in the Family Court Rules 1998 (WA) (Family Court Rules), which adopt and apply the rules in force under the FLA (Family Law Rules 2004 (Cth)) (Family Law Rules), other than certain specific rules not relevant to these proceedings. Amongst the Family Law Rules adopted and applied by that means is Rule 19.18, which provides:
Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a) of a specific amount;
(b) as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c) to be calculated in accordance with the method stated in the order; or
(d) for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Example: For paragraph (1)(c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.
(2) If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
(3) In making an order under subrule (1), the court may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party's behaviour in the case;
(c) the rates ordinarily payable to lawyers in comparable cases;
(d) whether a lawyer's conduct has been improper or unreasonable;
(e) the time properly spent on the case, or in complying with pre-action procedures; and
(f) expenses properly paid or payable.
Maximum amount of party/party costs recoverable
(1) This rule sets out the maximum amount of party/party costs a person may recover:
(a) if the court orders that costs are to be paid and does not fix the amount; and
(b) if a person is entitled to costs under these Rules.
(2) The maximum amount of costs that a person may recover under this rule is as follows:
(a) for fees--an amount calculated in accordance with Schedules 3 and 4;
(b) for an expense mentioned in Schedule 4 (other than item 101)--the amount specified in Schedule 4 for that expense;
(c) for any other expenses--a reasonable amount.
Principles governing the award of costs
16 For the purposes of these proceedings it is unnecessary to review the general body of principles which have been developed with respect to the manner in which the court's discretion to award costs should be exercised in proceedings under the Act or the corresponding provision of the FLA. For present purposes it is sufficient to observe that the default position, established by s 237(1) of the Act, is that each party to proceedings under the Act shall bear his or her own costs. However, a court dealing with proceedings under the Act may depart from that position and make an order as to costs if it 'is of the opinion that there are circumstances that justify it in doing so'. In considering whether there are circumstances that justify such an order, and if so, what order should be made, a court must have regard to each of the matters specified in s 237(3) of the Act. It is therefore appropriate to commence with a consideration of those matters which the court must take into account as a condition of its exercise of the power conferred by s 237 of the Act.
The financial circumstances of each of the parties to the proceedings
17 Affidavit evidence has been filed with respect to the financial circumstances of each party. That evidence establishes that although the mother has not engaged in employment or otherwise derived regular income for some years, she owns the house in which she lives, which is not encumbered by debt, and has access to substantial cash reserves. Although the evidence with respect to the father's financial circumstances is scant, it is clear that he is in regular employment in the resources industry. In light of the father's failure to provide details with respect to his financial circumstances, it is reasonable to infer that his employment provides the capacity to satisfy any order which the court might reasonably make with respect to the costs of these proceedings.
18 In summary, this is not a case in which either party can reasonably assert that financial hardship would flow from either the making or the failure to make an order as to costs.
Legal Aid
19 Neither party is in receipt of assistance by way of Legal Aid.
The conduct of the parties to the proceedings
20 The history of the proceedings with respect to the parenting arrangements for the child was briefly recounted in our earlier reasons. As we noted, each of the Family Court judge and the family law magistrate specifically referred to the desirability of finality with respect to parenting arrangements having regard to the best interests of the child. The father commenced his appeal to this court notwithstanding those observations.
21 In the appellant's case first filed in this court, nine grounds of appeal were asserted. The mother filed her response to each of those grounds. However, some months thereafter, the father proposed an amendment to his grounds of appeal, in effect abandoning the nine grounds identified in the original case and instead introducing three new grounds of appeal. After correspondence was exchanged between the parties' legal advisers, orders were made by consent granting the father leave to amend the grounds of appeal in the manner proposed, and further ordering that he pay the mother's costs thrown away by reason of the amendment. Those costs have not yet been assessed. Of course, it was necessary for the mother to file a new respondent's case addressing the new grounds of appeal.
22 When the appeal was called on for hearing, the court drew the attention of the parties to the jurisdictional issue which became the subject of our reasons. The father complains that he should have been given notice of that issue. That complaint inappropriately regards the court as a source of advice to the parties as to the manner in which they should conduct their cases. Further and in any event, when the issue was drawn to the attention of the father's legal advisers, no different approach was taken and written submissions were filed in an unsuccessful attempt to establish that this court had jurisdiction, so the provision of prior notice would have made no difference to the father's forensic strategy.
23 Against the contingency that a different view was taken elsewhere in relation to the jurisdiction of this court, and out of deference to the full argument which the parties had presented on the substantive merits of the appeal, the grounds of appeal were considered by the court. It was concluded that the first ground proceeded upon a false premise of legal principle and misconstrued the magistrate's decision. It was also concluded that the second ground of appeal misconceived the legal principles properly applied. It was concluded that the third ground of appeal should also be dismissed, if the court had jurisdiction, on the ground that the father had failed to identify any arguable error in the decision of the magistrate.
24 The father submits that these conclusions should not be taken into account by the court in assessing whether to order costs against him because he is unable to appeal from those conclusions, given his failure to establish that this court had jurisdiction. There are at least two answers to that submission. First, the exercise of this court's power with respect to costs is to be performed by reference to the conclusions at which we arrived in relation to these proceedings, rather than by reference to the possible outcome of some hypothetical appeal. Second and in any event, if costs are awarded against the father in reliance upon reasoning which he considers to be erroneous, he can apply for special leave to appeal to the High Court of Australia. It follows that our view as to the lack of merit in the father's appeal is relevant to the mother's application for an order for costs in her favour.
Failure to comply with previous orders of the court
25 The proceedings were not necessitated by the failure of any party to comply with previous orders of the court, and this factor is therefore irrelevant to this case.
Whether any party to the proceedings has been wholly unsuccessful
26 The father's attempt to vary the parenting arrangements was wholly unsuccessful before the family law magistrate, and in this court. Whether he will be successful in an appeal to the Family Court of Western Australia remains to be seen. However, for the reasons previously published, in our view his appeal lacked merit.
Settlement offers
27 Neither party to the proceedings made any offer to the other to resolve the father's application to vary the parenting arrangements.
Any other relevant matters
28 The court does not consider any matters other than those which we have already addressed to be relevant to the exercise of the discretion with respect to costs.
Family Law Rule 19.18
29 Family Law Rule 19.18(3) lists a number of matters which a court may consider before making an order as to costs. If that rules applies,8 none of the matters listed in that rule appear to us to require specific consideration, over and above the extent to which they have been reflected in the observations we have already made. Accordingly, for the purposes of this case, it is unnecessary to determine whether that rule applies.
The mother's application for indemnity costs
30 The mother applies for an order that the father pay her costs on an indemnity basis - that is to say, that she be reimbursed for all costs reasonably incurred and which are reasonable in amount. The evidence establishes that such an application was foreshadowed in correspondence shortly after the filing of the appellant's case. In support of that application, the mother submits that:9
(a) the father's appeal was so lacking in merit as to involve an element of improper, or at least unreasonable, conduct;10
(b) the father's conduct throughout the proceedings relating to the parenting arrangements supports the conclusion that he was pursuing proceedings against the mother for an ulterior motive and in wilful disregard of known relevant facts; and
(c) the father should have known that the appeal had no chance of success on its merits.
31 We do not accept these submissions. Although we concluded that the father's case on appeal was weak, it was not so weak as to support an inference of impropriety or unreasonableness. As Wheeler J observed in Quancorp Pty Ltd v Macdonald:11
It is inappropriate that a case be too readily characterised as 'hopeless' so as to justify an award of indemnity costs to the successful party.
- Nor does the weakness of the father's case sustain the conclusion that he has commenced and persists in this litigation for an ulterior purpose and in disregard of the known facts, or that he either knew or should have known that his appeal had no chance of success.
32 Accordingly, we do not consider that this is a case in which indemnity costs should be ordered.
Are there circumstances which justify a costs order against the father?
33 It remains to determine whether there are circumstances which justify the court exercising the power to order costs conferred by s 237(2) of the Act. In our view, the father's conduct of the proceedings justifies the exercise of that power. In particular, as we have noted:
(a) the father commenced his appeal to this court notwithstanding observations made by each of the Family Court judge and the family law magistrate with respect to the desirability of finality and certainty in relation to the parenting arrangements pertaining to the child, given the primacy of the best interests of that child;
(b) the father conducted his appeal in a way which magnified the costs to the mother, by abandoning all nine original grounds of appeal and substituting three different grounds of appeal;
(c) two of the grounds of appeal were misconceived and the third failed to identify any arguable error on the part of the family law magistrate; and
(d) the father failed to establish that this court had jurisdiction to entertain his appeal.
34 In our view, these circumstances, in combination, justify a departure from the default position whereby each party bears their own costs, and in particular justify an order that the father pay the mother's costs of the appeal, including the costs thrown away by reason of his amendment of the grounds of appeal, and the costs incurred in relation to the mother's application for costs.
Which scale should be used?
35 If it applies, Family Law Rule 19.18 sets out a variety of different mechanisms which a court might utilise when exercising the power to order costs. Those mechanisms include the power to specify that costs are to be calculated in accordance with the method stated in the order, or assessed in accordance with Schedule 3 of the Family Law Rules. As we have noted, that Schedule is generically applicable to proceedings brought under the FLA (and, by adoption, the Act), whereas the scales of costs published from time to time under the LP Act contain items specifically referrable to the procedure utilised by this court in relation to appeals. For that reason, in our view it is appropriate for the mother's costs to be assessed by reference to the relevantly applicable scale published under the LP Act, rather than by reference to Schedule 3 of the Family Law Rules. That result can be achieved either by exercising the general powers conferred by Family Law Rule 19.18(1) (if it applies) or pursuant to the exercise of the court's general discretion with respect to costs, if that rule does not apply. Again, therefore, it is unnecessary to determine whether that rule applies in this case.
The Suitors Fund Act
36 The father submits that the costs of each party should be limited to what may be recovered under the Suitors Fund Act 1964 (WA) (SF Act), and that the court should grant a certificate enabling recovery of those costs pursuant to s 14(1)(c) of that Act. There is a real question as to whether the reference in that section to the discontinuance of the hearing of a civil or criminal proceeding and the ordering of a new trial applies to appeals to this court. However, it is unnecessary to resolve that question because even if the subsection is potentially applicable to these proceedings, there are various reasons why the father's submission must be rejected.
37 Section 14(1)(c) of the SF Act would only apply to this case if:
(a) the hearing of a proceeding was discontinued;
(b) a new trial was ordered; and
(c) the reason for that course was not attributable to the act, neglect or default of any party.
38 None of these conditions are satisfied. The father's appeal was dismissed, not discontinued, because he and his legal advisers brought the appeal in the wrong court. No new trial was ordered. The SF Act has no application to this case.
Conclusion
39 For the reasons we have given, the circumstances of this case justify an order that the father pay the mother's costs of the appeal which, unless agreed, are to be assessed on a party and party basis by reference to any relevant scale or scales published under the provisions of the LP Act.
1CDW v LVE [2015] WASCA 247.
2 Section 237 of the Act is relevantly identical to s 117 of the FLA.
3T v S [2015] WASCA 225 (S); KD v GB [2014] WASCA 165 (S); S v D [2014] WASCA 224 (S); K v R [2010] WASCA 237; T v L [2006] WASCA 46 (S).
4Pezet v Pezet (1947) 47 SR (NSW) 45, 51 (Jordan CJ) (disapproved in Miller v Teale (1954) 92 CLR 406, but not in relation to the issue of costs); Wentworth v Rares (Unreported, NSWCA, 20 December 1991) 3; Proust v Blake (1989) 17 NSWLR 267, 272 (Samuels JA, Campbell & Mathews JJ agreeing); Norris v Norris (1985) 1 NSWLR 472, 473 (Mahoney JA), 477 - 478 (Priestley JA, Hope JA agreeing).
5Esdale v Schenk [2012] FamCA 111; (2012) 46 Fam LR 547 [23].
6Supreme Court (Court of Appeal) Rules 2005 (WA).
7 Rule 66.
8 See the countervailing arguments on that question identified above.
9 Respondent's submissions [34].
10 Relying upon the observations of Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225.
11Quancorp Pty Ltd v Macdonald [1999] WASCA 101 [7].
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