MTI v SUL
[2011] WASCA 267 (S)
•13 DECEMBER 2011
MTI -v- SUL [2011] WASCA 267 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 267 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:36/2011 | 25 NOVEMBER 2011; ON THE PAPERS | |
| Coram: | NEWNES JA MURPHY JA | 13/12/11 | |
| 6/03/12 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Applicant entitled to portion of costs | ||
| B | |||
| PDF Version |
| Parties: | MTI SUL |
Catchwords: | Practice and procedure Costs Applicant successful in part Whether entitled to costs of application Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 66 r 1 |
Case References: | MTI v SUL [2011] WASCA 267 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MTI -v- SUL [2011] WASCA 267 (S) CORAM : NEWNES JA
- MURPHY JA
DECISION : 6 MARCH 2012 FILE NO/S : CACV 36 of 2011 BETWEEN : MTI
- Appellant
AND
SUL
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : MONCRIEFF J
File No : PT 1025 of 2004
Catchwords:
Practice and procedure - Costs - Applicant successful in part - Whether entitled to costs of application - Turns on own facts
(Page 2)
Legislation:
Rules of the Supreme Court 1971 (WA), O 66 r 1
Result:
Applicant entitled to portion of costs
Category: B
Representation:
Counsel:
Appellant : No appearance (on the papers)
Respondent : No appearance (on the papers)
Solicitors:
Appellant : In person
Respondent : Bannerman Solicitors
Case(s) referred to in judgment(s):
MTI v SUL [2011] WASCA 267
(Page 3)
1 JUDGMENT OF THE COURT: On 15 September 2011, the respondent applied to have the grounds of appeal struck out on the basis that none of the grounds had any reasonable prospect of success and, further, that they were scandalous and vexatious and an abuse of process. The respondent also sought security for costs and an order, pursuant to the Vexatious Proceedings Restriction Act 2002 (WA), that the appellant be restrained from commencing any further proceedings against the respondent without the leave of the court.
2 In a judgment delivered on 13 December 2011, we ordered that the grounds of appeal be struck out, but granted the appellant leave to file and serve an amended appellant's case containing amended grounds of appeal and submissions. The application for security for costs was adjourned sine die. The application under the Vexatious Proceedings Restriction Act was dismissed on the ground that this court had no jurisdiction to hear such an application.
3 The appellant sought an opportunity to make submissions on costs and, on 13 December 2011, it was ordered that written submissions be filed and served and that the question of costs be determined on the papers. The appellant filed submissions on 10 January 2012 and the respondent filed submissions in response on 27 January 2012.
4 The appellant submits, in substance, that as the respondent was not wholly successful, she is not entitled to an order for costs. As we understand his submissions, the appellant argues that whilst the grounds of appeal were struck out, the appeal itself was not dismissed but he was given an opportunity to file amended grounds. Accordingly, the respondent's primary objective in attacking the grounds of appeal was not achieved. He further submits that the substantive purpose of the respondent's application was the order sought under the Vexatious Proceedings Restriction Act and he points out that by far the greater part of the affidavit in support of the respondent's application concerned that aspect of the matter. On that issue the respondent failed.
5 The respondent submits that she was entirely successful on her application to have the grounds of appeal struck out, which was the main purpose of the application. The orders sought for security for costs and under the Vexatious Proceedings Restriction Act occupied very little hearing time. In relation to the application under that Act, the question of jurisdiction was raised at an early stage by the court and no substantive submissions were made on it by either party. The respondent says that she is entitled to an order for the costs of the application. The respondent
(Page 4)
- also seeks an order that the appellant not be at liberty to proceed with the appeal until those costs are paid. That is based upon the affidavit evidence of the respondent's solicitor that the appellant has failed to satisfy any of the previous costs orders made against him in proceedings in this court. (The history of the appellant's appeals to this court is set out in MTI v SUL [2011] WASCA 267.)
6 We do not accept the appellant's contention that the primary focus was on the application for an order under the Vexatious Proceedings Restriction Act. It is the case that the affidavit filed on behalf of the respondent concerned that application and, to a much lesser extent, the application for security for costs. That is readily explicable. No evidence was required for, or relevant to, the application to strike out the grounds of appeal. But the primary focus throughout was on the latter application. The application under the Vexatious Proceedings Restriction Act was the subject of brief written submissions by the respondent and did not take up any substantial hearing time. It was disposed of on a short jurisdiction point. The application for security for costs was ultimately not pressed for the time being. In relation to the principal matter in contention, the adequacy of the grounds of appeal, the respondent was successful. The fact that the appellant was given an opportunity to file amended grounds of appeal does not detract from that.
7 The court has a wide discretion in relation to costs, but the general rule is that a successful party is entitled to recover their costs: Rules of the Supreme Court 1971 (WA) O 66 r 1. Where a party is successful only in part, it does not follow, contrary to the appellant's submission, that the party is not entitled to an order for costs. In such a case, whether, or to what extent, the party should be entitled to recover their costs lies in the discretion of the court. When a court finds that the successful party is entitled only to a portion of their costs, the portion of those costs which the party should be allowed is generally not amenable to precise calculation but is a matter of estimation.
8 We consider that this is an appropriate case in which to depart from the general rule. Having regard to the matters to which we have referred, in our view the respondent is not entitled to recover the costs of the preparation of the affidavit in support of the application, it having no relevance to the application to strike out the grounds of appeal. Otherwise the respondent is entitled to recover 80% of the costs of the application. We do not consider it is appropriate to make the order sought by the respondent restraining the appellant from proceeding with the appeal until the costs are paid.
(Page 5)
9 There is one further matter which we should mention. On 3 February 2012, the appellant made an application for an oral hearing on the issue of costs. We would not entertain that application.
10 Litigation in this court is to be conducted in accordance with the objectives set out in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971, namely the elimination of unnecessary delay and the just, efficient and timely determination of litigation at a cost proportionate to the value, importance and complexity of the subject-matter and the financial position of each party. In accordance with those objectives, where it is appropriate to do so the court seeks to deal with costs issues on the papers in order to eliminate unnecessary cost to the parties of an oral hearing and to avoid the unnecessary burden on the limited resources of the court that such a hearing involves.
11 The order for the issue of costs to be determined on the papers was made on 13 December 2011, in the presence of the appellant. The obvious purpose of the order was to enable the issue of costs to be resolved with as little further cost and delay as possible, in circumstances where it was apparent that the costs in issue would be relatively modest. The appellant did not object to the order when it was made. As we have mentioned, since then written submissions on costs have been filed and served by both parties.
12 There is nothing in the appellant's affidavit in support of the application for an oral hearing which would warrant the court taking that course and the interests of justice do not require it.
13 To proceed now by way of an oral hearing would inevitably involve significant further delay and additional expense to the respondent. It may be that the time and cost involved do not weigh heavily on the appellant. The appellant is representing himself and in his affidavit in support of the application he describes himself as unemployed. The appellant holds a health care card and therefore is not required to pay court filing fees. But costs, in particular, are a matter of obvious and legitimate concern to the respondent. In addition, an oral hearing on what is a relatively minor costs issue would be an unwarranted burden on the resources of the court.
Conclusion
14 The appellant is to pay the respondent 80% of her costs of the application to be taxed, save that the respondent is not entitled to any costs in connection with the preparation, filing or service of her affidavit sworn on 14 September 2011.
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