PMW v MJS
[2009] WASCA 241
•4 NOVEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PMW -v- MJS [2009] WASCA 241
CORAM: WHEELER JA
PULLIN JA
NEWNES JA
HEARD: 4 NOVEMBER 2009
DELIVERED : 4 NOVEMBER 2009
FILE NO/S: CACV 26 of 2009
BETWEEN: PMW
Appellant
AND
MJS
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :THACKRAY CJ
Citation :W and S [2009] FCWA 5
File No :PTW 4597 of 2006
Catchwords:
Appeal from Family Court of Western Australia - Costs - Order under s 237A(2) - Whether factors in s 237A(3) are relevant to the quantum of costs order
Legislation:
Nil
Result:
Application for extension of time refused
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: In person
Solicitors:
Appellant: In person
Respondent: In person
Case(s) referred to in judgment(s):
House v The King [1936] HCA 40; (1936) 55 CLR 499
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Sharma v Sharma [No 2] [2007] FamCA 425
W and S [2008] FCWA 39
WHEELER JA: I agree with the Pullin JA and I, too, would dismiss the application for an extension of time.
PULLIN JA: The appellant sought an extension of time in which to appeal against a decree of Thackray CJ dated 9 January 2009. The application was dismissed after hearing the appellant's oral submissions. These are the reasons for that decision. The appeal was instituted over a month out of time because of a misunderstanding about where the appeal was to be instituted.
If an extension is to be granted it is necessary to consider whether there is any merit in the grounds of appeal.
The order in the decree which is under appeal reads:
The respondent … shall contribute to the costs of the [appellant] … in the sum of $20 payable within 28 days.
The appellant seeks an order setting aside that order and seeks in substitution an order that the respondent pay 'the full costs of $45,703' to the appellant.
It is necessary to briefly state the background leading up to the application for costs. The substantive proceedings are reported as W and S [2008] FCWA 39. Those reasons reveal that the parties could not agree where their daughter should live. The mother wanted orders permitting her to take the child to the Eastern States where her family lived, whereas the husband wanted her to remain in Perth where his family resided and where the daughter had lived all her life. The orders which were ultimately sought by the appellant were that he should have sole parental responsibility; that the daughter live with him and that she spend unspecified time with the respondent.
The Chief Judge's reasons reveal that the proceedings were protracted. On the subject of the credibility of the appellant and the respondent, who both gave evidence, the trial judge had the following to say:
I found [PMW] to be an unreliable witness. He gave every impression of making up much of his evidence as he went along. He was particularly prone to hyperbole and self-righteous justification of his own conduct. He gave every appearance of concealing the true nature of his interest in the various mining companies in which he has had involvement. He has a number of convictions for criminal offences spread over a long period of time, including 17 offences of stealing as a servant in 1990. He has a bad driving record, including three drink driving offences, the last of which
occurred in November 2006. On 21 November 2007 he gave evidence in the Perth Magistrates Court that was in direct conflict with evidence given before me, albeit it seems probable that in at least some instances he was simply trying to 'big note' himself before the Magistrate.
[MJS] initially presented as a slightly more credible witness than [PMW]; however, evidence emerged after the hearing in July 2007 which led to her having no alternative than to concede she had grievously misled me about the nature of her association with [Mr I]. Her efforts to make her deception appear less barefaced were entirely unconvincing. [MJS's] dishonesty was such that I lost whatever faith I had in her as a witness of truth.
Although it is not saying much, I formed the impression that all of the other witnesses who were cross-examined were more credible than [PMW] and [MJS], albeit each of them was influenced to some extent by their allegiance with one of the parties [10], [11], [12].
The Chief Judge, at the end of his detailed reasons, decreed that the respondent should have sole parental responsibility for the child; that the child live with the mother and that the child should spend time with the father at times specified in the decree. The application by the respondent to permit relocation was dismissed. These decrees are not under challenge in this appeal and the findings made in the reasons for the decree are not challenged.
The respondent sought costs of $1,304 which she claimed to have incurred in responding to an interlocutory application made by the appellant in March 2008. That application was dismissed and that dismissal is not under review in this appeal.
The appellant applied for costs of $45,703 pursuant to s 237A of the Family Court Act 1997. That application resulted in the order which is the subject of this appeal.
The Chief Judge in his reasons for decision for costs set out s 237A of the Family Court Act 1997 which reads:
237A.Costs where false allegation or statement made - …
(1)This section applies if :
(a)proceedings under this Act are brought before a court; and
(b)the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings
(2)The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.
The Chief Judge said that he was satisfied that the appellant was put to additional expense as a result of the trial having to be reopened, when he obtained information which indicated that the respondent had failed to disclose the full extent of her relationship with a Mr I. His Honour said that her conduct in relation to her evidence concerning Mr I would, in ordinary circumstances, warrant a substantial order for costs. However, his Honour also pointed out that numerous adverse findings were made concerning the appellant's credibility and referred to [10] of his reasons in the substantive proceedings. His Honour then said:
Notwithstanding these findings, [MJS] has not sought any order for costs against [PMW] relying upon the provisions of s 237A. Instead, she has used my findings in relation to his credibility as a shield to his application pursuant to that provision.
No matter how compelling or attractive the 'shield' [MJS] raises against [PMW's] claim, once I have found she knowingly gave false evidence, I am obliged by the statute to make an order for costs against her. There is no discretion involved.
There is, however, a wide discretion in determining what amount should be ordered. Such a wide discretion must, of course, be exercised judicially according to the ordinary rules of justice and fairness: Duroux v Martin (1993) FLC 92-432 at 80,407. Otherwise, as Bowen LJ said in Gardner v Jay (1885) 29 Ch D 50 at 58 (cited with approval inter alia by Lord Wright in Evans and Bartlam [1937] AC 473 at 488):
'When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the judge why should the court do so?'
In my view, it would nevertheless ordinarily be appropriate to have regard to the various factors referred to in s 237(3) in determining the quantum of costs to be ordered, notwithstanding the submission made on behalf of [PMW] that I am not required to give consideration to those matters. In this regard I respectfully concur with the views expressed by Ryan J in Singhdeo & Singhdeo(No 2) [2007] FamCA 425 at [15].
I do not, however, in this case propose to give detailed consideration to all of the matters referred to in s 237(3). In my view, the overwhelming factor to be taken into account in determining the quantum of costs is the fact that [PMW] was himself a thoroughly unreliable witness. It would be an affront to justice to make a substantial order for costs in his favour when I am satisfied that he misled the Court just as grievously as did [MJS]. His conduct in my view prolonged the trial and put [MJS] to additional expense.
In any event, I would have taken into account the fact that [MJS] lives in quite modest circumstances with no assets of significance other than the equity she has in the property which provides a home for herself and [her daughter]. I would also have taken into account the fact that no weight could be placed on [PMW's] testimony concerning his financial position. I would also have been inclined to take into account the fact that the entire relocation proceedings 'kicked off' at a time when [PMW] appeared to have lost all interest in [his daughter] (as mentioned in paragraph 6 of my substantive reasons). It was not until that occurred that [MJS] formulated her proposal to return to live near her family.
In all of these circumstances, I consider that nothing more than a nominal order for costs is warranted [22] ‑ [28].
The reference to Singhdeo in [25] is an error. The citation is correct but the case name is Sharma v Sharma [No 2] [2007] FamCA 425.
The appellant's grounds of appeal read:
1.His Honour in his decision as to the costs submission was requested to rely upon the Family Court of Western Australia Act 1997 s 37(A)(1)(2), whereas His Honour has relied upon Family Court of Western Australia Act 1997 s 237(3).
2.His Honour in his decision 9th January 2009 at [18] was satisfied 'false evidence' was given by [MJS] as per Family Court of Western Australia Act 1997 s 237(A)(1)(b).
3.His Honour has given consideration in his decision at [21] Reasons for Decision 9th January 2009 he states 'He gave the impression of making up much of his evidence as he went along'. 'He was particularly prone to hyperbole and self righteous justification of his own conduct'. He gave every appearance of concealing the true nature of his interest in the various mining companies in which he has had involvement'.
4.His Honour considered the Family Court of Western Australia Act 1997 s 237(3) still after being satisfied in relation to Family Court of Western Australia Act 1997 s 237(A)(1)(b).
5.His Honour considered Family Court of Western Australia Act 1997 s 237(3) as at [26] in the Reasons for Decision, His Honour didn't consider the costs submission 28th April 2008 at [13].
6.I rely on the grounds as submitted to the Family Court of Western Australia as per cost submissions made 28th April 2008.
As may be seen from the reasons quoted above, the Chief Judge referred in his reasons to the case of Sharma and Sharma as authority supporting his view that, in effect, s 237(3) of the Family Court Act provided a list of relevant factors which could properly be taken into account in the exercise of the discretion conferred on the court under s 237A once the condition to enliven and require the discretion to be exercised was found to exist. Section 237(3) sets out considerations that a court must have regard to if the court hearing the proceedings is of the opinion that there are circumstances that justify the court making such order for costs as the court thinks just, this being an exception to the ordinary rule set out in s 237(1) that each party should bear the party's own costs.
Section 237(3) reads:
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.
In Sharma and Sharma, Ryan J considered the provisions in the Family Law Act 1975 (Cth) equivalent to s 237 and s 237A.
Section 117(2A) is the equivalent of s 237(3) in the State Act and s 117AB is the equivalent of s 237A in the State Act. Ryan J said:
There is no statutory guideline concerning the manner in which the court determines the quantum of costs payable pursuant to s 117AB. The factors which ordinarily influence the court's discretion about whether an order will be made at all (s 117(2A)) purport to relate only to the exercise of that discretion and not to the separate issue of the quantum of costs order which s 117AB mandates. Nevertheless s 117(2A) contains a useful structure of relevant considerations when determining the quantum of an s 117AB order.
Those observations apply equally to s 237 and s 237A. In my opinion the Chief Judge did not err in following what was said by Ryan J. This deals with the main point raised by the appellant in the grounds of appeal.
This appeal challenges a decision in the exercise of a discretion. Error of the kind specified in House v The King [1936] HCA 40; (1936) 55 CLR 499 must be shown: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 517 ‑ 518. There is no allegation in any of the grounds that his Honour erred in the exercise of his discretion. The appellant points out that in the last paragraph of his 28 April 2008 submissions which were before the Chief Judge, he wanted the opportunity to make further submissions at a later date about s 237(3) factors. This written submission was prepared by lawyers for the appellant who, it may be inferred, understood that considerations of the kind listed in s 237(3) might be taken into account. The appellant had no right to reserve for himself the right to make further submissions. The hearing was the time to make all his submissions.
In fact the Chief Judge said, in the paragraph to which I have already referred, that he did not propose to give detailed consideration to all of the matters referred to in s 237(3). He said that the overwhelming factor was that PMW was himself a thoroughly unreliable witness and that it would be an affront to justice to make a substantial order for costs in his favour when he was satisfied that the appellant had misled the court just as grievously as did the respondent. In my opinion this was an appropriate approach in the circumstances of this case. No error of the kind specified in House v The King has been shown. Accordingly, the appeal has no merit and therefore the application for an extension of time should be dismissed.
NEWNES JA: I agree and I, too, would dismiss the application.
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