Furesh v Schor
[2013] WASCA 231 (S)
•7 NOVEMBER 2013
FURESH -v- SCHOR [2013] WASCA 231 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 231 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:112/2012 | ON THE PAPERS | |
| Coram: | PULLIN JA NEWNES JA MURPHY JA | 7/11/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay the second appellant's costs of the appeal and of application to the master, to be taxed | ||
| B | |||
| PDF Version |
| Parties: | MARY FURESH as Administrator of the Intestate Estate of PAUL SLIPCEVICH MARY FURESH as Beneficiary of the Intestate Estate of PAUL SLIPCEVICH GABRIELA MARIA ANGELA SCHOR |
Catchwords: | Practice and procedure Costs Appeal from master Second appellant successful on appeal First appellant took no part Second appellant entitled to costs of appeal and of application to master |
Legislation: | Nil |
Case References: | Furesh v Schor [2013] WASCA 231 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FURESH -v- SCHOR [2013] WASCA 231 (S) CORAM : PULLIN JA
- NEWNES JA
MURPHY JA
- First Appellant
MARY FURESH as Beneficiary of the Intestate Estate of PAUL SLIPCEVICH
Second Appellant
AND
GABRIELA MARIA ANGELA SCHOR
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : SCHOR -v- FURESH [No 2] [2012] WASC 305
File No : CIV 2389 of 2009
Catchwords:
Practice and procedure - Costs - Appeal from master - Second appellant successful on appeal - First appellant took no part - Second appellant entitled to costs of appeal and of application to master
Legislation:
Nil
Result:
Respondent to pay the second appellant's costs of the appeal and of application to the master, to be taxed
Category: B
Representation:
Counsel:
First Appellant : No appearance (on the papers)
Second Appellant : No appearance (on the papers)
Respondent : No appearance (on the papers)
Solicitors:
First Appellant : Lavan Legal
Second Appellant : Lavan Legal
Respondent : Leach Legal
Case(s) referred to in judgment(s):
Furesh v Schor [2013] WASCA 231
1 JUDGMENT OF THE COURT: On 3 October 2013, this court unanimously upheld an appeal from an order of Master Sanderson requiring the second appellant (Ms Furesh) to submit to a mouth swab for DNA analysis: Furesh v Schor [2013] WASCA 231.
2 The issue of DNA analysis arose in proceedings in which the respondent claimed a share of the estate of the late Mr Slipcevich on the basis that she was his daughter from an extra-marital affair. The respondent made an application for an order that the second appellant, who was acknowledged to be Mr Slipcevich's biological daughter and who was a beneficiary of his estate, submit to a mouth swab for DNA testing in order to establish their common paternity. The master made the order, relying on the court's inherent jurisdiction.
3 We found that the court had no inherent jurisdiction to make such an order and accordingly set aside the master's order and dismissed the respondent's application that Ms Furesh submit to the mouth swab.
4 The parties sought time to make submissions on costs. It was ordered that each party file written submissions and the issue of costs be dealt with on the papers. The written submissions have since been filed.
5 The respondent argued that the ordinary rule that costs follow the event should not be applied in this case. It was submitted that a special feature of this case was that Ms Furesh, in her capacity as administrator, was under an obligation to do all she could to assist in the timely and cost-effective winding up of Mr Slipcevich's estate. It was submitted that, unlike a blood test, a mouth swab involved virtually no physical invasion at all. Accordingly, the respondent contended, although it has been found that Ms Furesh was not required to submit to a mouth swab, as she was the administrator of the estate she should not have exercised the right to refuse it in her personal capacity, particularly as there was no evidence that she had a fear of mouth swabs or a religious objection to them.
6 That remarkable submission hardly requires comment. It is entirely without merit and can immediately be put to one side.
7 Apart from that submission, it was argued by the respondent in relation to the costs below, first, that the determination of the respondent's paternity was necessary for the resolution of the affairs of the estate and therefore the costs should be paid out of the estate; and secondly, that until invited to do so by the master, Ms Furesh had not sought to challenge the proposition that the court had power to order a mouth swab and as most of the time before the master had been taken up with issues of the exercise of the discretion, on which Ms Furesh had failed, the appellants were not entitled to the costs below.
8 On the costs of the appeal, the respondent submitted that the proceedings bore some similarities to cases where a trustee appeals in respect of a substantive matter of importance to the administration of a trust, where, even if the appeal is unsuccessful, the court may order the trustee's costs to be paid out of the trust fund. In this case, the proceedings involved the resolution of whether the court has power to order DNA testing in civil proceedings. Alternatively, it was argued that discretionary issues were also argued on the appeal, those being issues on which the appellant had failed before the master and on which this court did not rule, so that an apportionment of costs was appropriate.
9 The respondent put forward seven different proposed costs orders in what was said to be its order of preference. The respondent's first preference was that the costs below and of the appeal be reserved to the trial judge. Of the respondent's preferences only the seventh involved paying costs to the appellants and that was limited to the costs of the appeal, with the costs of the application to be the appellants' costs in the cause.
10 The appellants submit that they are entitled to their costs of the application before the master and of the appeal. It was argued that there is nothing in the present case to justify a departure from the general rule that costs follow the event. This is not a case where the ultimate outcome of the action might have a bearing on who should bear the costs of the interlocutory application and there is no reason that the costs should await or depend upon the outcome of the action. It is irrelevant that the issue was important to the respondent's case or that the respondent's contention was reasonably arguable, and there is no proper analogy with orders for costs made in a probate action or in proceedings by a trustee for directions in relation to an estate.
11 It is trite law that the court has a very wide discretion as to costs, albeit it is a discretion that must be exercised judicially. However, the general rule is that costs follow the event, a rule enshrined in O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA). The basis of that rule is that as the unsuccessful party has unjustifiably brought the successful party before the court the unsuccessful party should have to bear the costs. A different order as to costs will be made only where good reason exists to do so.
12 No reason exists in this case to depart from the general rule. It is unnecessary to canvass the vast array of cases referred to by the respondent. The respondent's application that Ms Furesh, in her personal capacity, undergo DNA testing was not in the nature of, or properly analogous to, an action by a trustee for directions as to the proper administration of a trust. The respondent brought the application not as a trustee of Mr Slipcevich's estate but as a means of advancing her claim to a share in the distribution of the estate. Nor is it to the point that the issue which the DNA testing was designed to resolve is a critical, indeed the critical, issue in the action, or that at the time the application was brought there was a case at first instance which appeared to support it. There is also no proper basis for any apportionment of costs. The critical issue on the application and on the appeal was not the exercise of the discretion but the antecedent issue of the power of the court to make an order for DNA testing.
13 On that issue the terms of the dispute were clear cut. The respondent asserted that Ms Furesh was required to provide a sample for DNA analysis. Ms Furesh insisted that she was not. The respondent sought to make good her assertion by the application to the master. The respondent was successful at first instance but unsuccessful on appeal, the order of the master being set aside and the application dismissed. It follows that Ms Furesh should have been successful before the master and therefore the order for costs before the master should have been in her favour. The costs of the appeal simply follow the event.
14 There is one final matter. Ordinarily the limit for written submissions in a substantive appeal is 20 pages. On the question of costs, the respondent filed written submissions which ran to 14 pages and referred to some 45 cases (almost all of them from other jurisdictions). It would be a very rare case indeed where submissions of that length or reference to cases of that number would be appropriate on a question of costs. This was not such a case.
15 As Ms Furesh in her capacity as administrator of the estate did not take an active part in the proceedings, the order for costs should only be in favour of Ms Furesh in her personal capacity and there should be no order as to costs in her capacity as administrator.
16 We would therefore order that the respondent pay the second appellant's costs of the appeal and of the application to the master to be taxed.
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