GROVER and O’DRISCOLL

[2014] FCWA 32

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: GROVER and O’DRISCOLL [2014] FCWA 32

CORAM: WALTERS J

HEARD: 14 APRIL 2014

DELIVERED : 14 APRIL 2014

PUBLISHED : 19 MAY 2014

FILE NO/S: PTW 5149 of 2010

BETWEEN: MS GROVER

Applicant

AND

MR O’DRISCOLL
Respondent

Catchwords:

Family Law - costs - case turns on its own facts

Legislation:

Family Court Act 1997 (WA), s 237, s 237(2), s 237(3)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Mr T O'Sullivan

Solicitors:

Applicant:

Respondent: O'Sullivan Davies

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

Baker & Darzi [2013] FCWA 84

Cross v Beaumont (2008) 39 Fam LR 386

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123

Grover & O'Driscoll [2014] FCWA 25

Hitch & Hitch (2012) 47 FamLR 603

I and I (No 2) (1995) FLC 92-625

Marinko & Marinko (1983) FLC 91-307

Penfold v Penfold (1980) FLC 90-800

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

Introduction

1This is an application for costs made by the respondent, [Mr O’Driscoll], arising out of proceedings in which he was involved with the applicant, [Ms Grover]. Relevantly, the application for costs relates to the applicant's unsuccessful appeal against orders made by Magistrate Moroni on 14 February 2014. The appeal was heard on 14 April 2014 and forms the subject of Reasons for Judgment which were published on 23 April 2014: see Grover & O’Driscoll [2014] FCWA 25. I shall refer to those reasons and the appeal to which they relate as "the FCWA appeal judgment" and "the FCWA appeal" respectively.

The law

2The question of costs in family law proceedings under the Family Court Act 1997 (WA) ("the FCA"), is dealt with in s 237 of the FCA. A judicial officer has a broad discretion in costs matters, and it has been said that the Full Court will not ordinarily intervene unless a costs order is plainly unreasonable.

3Indeed, it has been held that the Court has an almost unlimited jurisdiction in relation to costs – although, clearly, any costs order must be just. It is not the law that a costs order can only be made in what has been described as "a clear case". A finding of justifying circumstances is an essential preliminary to the making of a costs order, but there is no additional or special onus on an applicant for an order for costs.

4The general rule is that each party shall bear his or her own costs, but that rule is expressed to be subject to s 237(2), and it must yield whenever a judicial officer finds that there are circumstances which justify the making of a costs order. It follows that both the costs award itself and the quantum of costs actually ordered are discretionary: see the decision of the High Court in Penfold v Penfold (1980) FLC 90-800.

5Section 237(2) of the FCA provides as follows:

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) 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.

6Subsections (5) and (6) of FCA section 237 are not presently relevant.

7Section 237(3) of the FCA provides as follows:

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;

(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;

(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;

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court;

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(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.

8The weight to be given to the various factors referred to in FCA s 237(3) is a matter for the trial judge, but they must all be taken into account and balanced when considering whether the overall circumstances justify the making of a costs order: see I and I (No 2) (1995) FLC 92-625 and Hitch & Hitch (2012) 47 FamLR 603. On the other hand, there is nothing to prevent any of the factors being the sole foundation for an order for costs: see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 at [40].

9A disparity in financial resources between parties to family law litigation can sometimes justify an order for costs in favour of the party with fewer financial resources. At the same time, the apparent inability of a party to pay costs is not a bar to a costs order being made in circumstances where – for example – that party's conduct (being, presumably, that party's conduct as a litigant) warrants such an order: see Marinko & Marinko (1983) FLC 91-307 and Cross v Beaumont (2008) 39 Fam LR 386; ("Cross v Beaumont") see also Hitch & Hitch (2012) 47 FamLR 603.

FCA s 237(3) considerations

Financial circumstances

10The first matter to be considered under s 237(3) is the financial circumstances of each of the parties to the proceedings. That issue was not argued before me, although Mr O’Sullivan (for the respondent) seemed to concede that any costs order would be an imposition for the applicant.

Legal aid

11This is not a relevant consideration.

Conduct as litigants

12The Court is required to take into account the conduct of the parties as litigants. I have no criticism of either party regarding his or her conduct as a litigant in relation to the FCWA appeal proceedings, which are the only proceedings properly before me. Both parties filed affidavits in support of the arguments pressed before me, and both parties were able to draw my attention to relevant material.

Failure to comply with previous orders

13The next factor is whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court. Typically, that consideration relates to enforcement proceedings. It is not relevant for me to take it into account in the current circumstances.

Whether a party has been wholly unsuccessful

14The next factor is whether any party has been wholly unsuccessful in the proceedings. This is the ground upon which the respondent relies in support of his application for costs.

15There can be no doubt that the applicant has been wholly unsuccessful in the FCWA appeal. Mr O’Sullivan argued that the appeal was doomed from the outset, and I agree with his submission in that regard. In my view, the genesis of the applicant's appeal was her misunderstanding of the meaning and effect of comments made in previous judgments and orders of this Court and the Full Court of the Supreme Court of WA. I have discussed the applicant's misunderstanding in that regard in the FCWA appeal judgment.

16The respondent could do nothing about the way in which the applicant chose to interpret the judgments and orders to which I have referred. It is clear from the comments made by the applicant during the course of the hearing before me that she had been determined to proceed with her appeal. After the nature of her misunderstanding was explained to her, however, she accepted that there was no chance of the appeal succeeding. Indeed, and to her credit, she accepted that the appeal was misconceived.

17The bottom line is, however, that the applicant was wholly unsuccessful in the FCWA appeal.

Offers

18This is not a relevant consideration.

Other relevant matters

19There are no other matters that I consider relevant in relation to the issue of costs.

Conclusion

20The single most significant consideration is the fact that the FCWA appeal was misconceived and wholly unsuccessful. In my view, that consideration alone justifies the making of an order for costs in favour of the respondent. It is unfortunate that the applicant did not see fit to obtain legal advice regarding the meaning and effect of the comments and orders made on previous occasions. At the commencement of the hearing before me, I gave the applicant an opportunity to seek legal advice from the duty lawyer. She elected not to seek that advice. I have no doubt that the duty lawyer would have advised the applicant that the FCWA appeal was misconceived.

21Mr O'Sullivan did not seek an order for indemnity costs. In my view, the circumstances relating to the current proceedings would not justify an order for indemnity costs in any event: see my discussion of the subject of indemnity costs in Baker & Darzi [2013] FCWA 84 at [21] to [39].

22The quantum of costs sought by the respondent is $2,500. That amount is not calculated on an indemnity basis. In my opinion, $2,500 is an extremely modest allowance for the respondent’s costs in relation to the FCWA appeal. In other words, I find that the quantum sought is more than reasonable, and I propose to make an order that the applicant pay the respondent’s costs fixed in the sum of $2,500.

23The question then remains as to how long the applicant should be given to pay the costs ordered. She has asked for the payment of any costs ordered to be deferred for as long as possible. In my view, a reasonable period to enable the applicant to pay the costs is the period from now until 1 August 2014.

24It follows that there will be an order that the applicant pay the respondent’s costs fixed in the sum of $2,500, such costs to be paid by not later than 1 August 2014.

I certify that the preceding [24] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate