Costa & Drake

This matter concerned a review of a Senior Registrar's decision regarding costs. The father, Mr Costa, had applied for parentage testing and a declaration of paternity concerning the parties' child. The mother, Ms Drake, subsequently applied for her costs of and incidental to that parentage application to be paid on an indemnity basis after the Senior Registrar dismissed the father's application. The Senior Registrar also dismissed the mother's costs application. The mother sought a review of the Senior Registrar's decision to dismiss her application for indemnity costs.

The court was required to determine whether the Senior Registrar erred in dismissing the mother's application for costs on an indemnity basis. Specifically, the court needed to consider the father's prospects of success in his parentage application and whether his continued pursuit of that application warranted an order for indemnity costs in favour of the mother. The court also had to consider the relevant factors for awarding costs, including the financial circumstances of the parties and any legal aid assistance received.

McClelland DCJ found that the father's parentage application had no reasonable prospects of success, as the mother had not disputed his paternity and no plausible evidence had been presented to cast doubt on it. The court noted that a review of a Registrar's decision is a hearing de novo. Applying the principles for awarding costs, and considering that the father had continued with an application that lacked reasonable prospects of success, the court ordered the father to pay the mother's legal costs of and incidental to his parentage application and the review application on a party/party basis. The court acknowledged that this order might present some hardship to the father, but found it warranted given the circumstances.