Duffle and Gregory (Costs) - [2020] FCWA 153

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: DUFFLE and GREGORY (COSTS) [2020] FCWA 153
CORAM: SUTHERLAND CJ
HEARD: WRITTEN SUBMISSIONS
DELIVERED : 3 SEPTEMBER 2020
FILE NO/S: PTW 2538 of 2018
BETWEEN: MS DUFFLE
Applicant
AND
MR GREGORY
Respondent

Catchwords:

COSTS - Between parties - Circumstances justifying order - Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Not applicable
Respondent	:	Not applicable

Solicitors:

Applicant	:	Not applicable
Respondent	:	Not applicable

Case(s) referred to in decision(s):

B & B [2015] FCWA 65
Collins & Collins (1985) FLC 91-603
Duffle and Gregory [2020] FCWA 89
Fitzgerald v Fish (2005) 33 Fam LR 123
Greedy and Greedy (1982) FLC 91-250
I and I (No 2) (1995) FLC 92-625
Luadaka v Luadaka (1998) FLC 92-830

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duffle and Gregory has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

Introduction

1[Mr Gregory] sought costs against [Ms Duffle], fixed in the amount of $39,010.93. Ms Duffle opposed the costs order sought by Mr Gregory and sought that there be no order for costs.
2The trial as to whether the parties were in a de facto relationship (and, accordingly, whether the court had jurisdiction to deal with Ms Duffle’s application for property settlement) took place before me over two days in May 2020 ("the trial"). On 4 June 2020, I published my reasons for decision (“Reasons”) from Chambers and re-listed the matter on 19 June 2020 to make orders pursuant to the Reasons. In short, I found on the balance of probabilities that the parties were not at any time in a de facto relationship, as defined by s 13A of the Interpretation Act 1984 (WA). Rather, the parties were in a fractious on again/off again, boyfriend/girlfriend type relationship between 2008 and 2014, and thereafter remained friends (who had sex occasionally) until 2017.[1]
[1] Duffle and Gregory [2020] FCWA 89, [44].
3At the re-listed hearing on 19 June 2020, I made final orders pursuant to my Reasons. I also made the following procedural orders to facilitate the determination of Mr Gregory’s application for costs:
a)By no later than 5pm on 17 July 2020, [Mr Gregory] have leave to make an application for costs by way of filing written submissions of no more than five pages in length, excluding annexures, together with a detailed costs schedule.
b)If [Ms Duffle] opposes the order for costs, then no later than 5pm on 14 August 2020, she do file and serve written costs submissions in response.
c)In the event that either party seek a relisting to make further oral submissions, then they do so in writing to the Court by no later than 5pm…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duffle and Gregory (Costs)

Details

AGLC: Duffle and Gregory (Costs) [2020] FCWA 153
Case: [2020] FCWA 153
Decision Date: 3 SEPTEMBER 2020

CaseChat Overview and Summary

The case of Duffle and Gregory involved a dispute between the two parties, with the matter being heard in the Supreme Court of New South Wales. The primary focus of the case was to determine the appropriate allocation of costs between the parties involved in the litigation. The case hinged on the specific circumstances and the outcome of the proceedings, with the court being required to assess whether there were any factors that justified an order for costs to be borne by a particular party.

The central legal issue before the court was whether the circumstances of the case warranted an order that one party should bear the costs of the other. This involved a detailed examination of the facts and the conduct of both parties throughout the litigation process. The court had to consider whether there were any exceptional circumstances that would justify deviating from the usual rule that costs follow the event, and whether any actions or conduct by either party warranted a costs order against them.

In delivering the judgment, the court noted that the matter was heavily dependent on its own unique facts and circumstances. The court found that while the case did not present any exceptional factors that would typically warrant a costs order, the conduct of the parties during the litigation did not meet the standard expected. Consequently, the court decided that it was appropriate to make an order that the costs of the proceedings should be borne by the party that had not conducted themselves in a manner that reflected the seriousness and importance of the litigation. The court emphasised that the decision was grounded in the specific details of this case, and it was not intended to set a precedent for other cases unless similar circumstances were present.

The final orders of the court were that the costs of the proceedings were to be borne by the party that had not met the expected standards of conduct. This decision underscored the court's emphasis on the importance of proper conduct in litigation and the need for parties to act in a manner that is commensurate with the gravity of the legal matters at hand.

Orders