S v D
[2014] WASCA 224 (S)
•12 FEBRUARY 2015
S -v- D [2014] WASCA 224 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 224 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:150/2012 | ON THE PAPERS | |
| Coram: | BUSS JA NEWNES JA MURPHY JA | 12/02/15 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| B | |||
| PDF Version |
| Parties: | S D |
Catchwords: | Costs Appeal Appellant wholly unsuccessful Statutory considerations relevant to discretion |
Legislation: | Family Court Act 1997 (WA), s 210A(2), s 237 |
Case References: | K v R [2010] WASCA 237 T v L [2006] WASCA 46 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : S -v- D [2014] WASCA 224 (S) CORAM : BUSS JA
- NEWNES JA
MURPHY JA
- Appellant
AND
D
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : DUNCANSON M
Citation : D and S [2012] FCWAM 79
File No : PTW 1285 of 2010
Catchwords:
Costs - Appeal - Appellant wholly unsuccessful - Statutory considerations relevant to discretion
Legislation:
Family Court Act 1997 (WA), s 210A(2), s 237
Result:
Orders made
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms E Brownlie
Solicitors:
Appellant : In person
Respondent : Leach Legal
Case(s) referred to in judgment(s):
K v R [2010] WASCA 237
T v L [2006] WASCA 46 (S)
1 REASONS OF THE COURT: These supplementary reasons deal with the costs of the appellant's unsuccessful appeal to this court. The appeal was brought pursuant to s 210A(2) of the Family Court Act 1997 (WA) (the Act).
2 The appellant seeks an order in the following terms:
[T]he parties be responsible for their own cost[s] … or at most to share 50% of the burden of party/party cost[s] and to have [those] cost[s] assessed and taxed.
3 The respondent seeks an order that the appellant pay the costs of the appeal, effectively on the basis that the appellant was wholly unsuccessful.
4 Each party has filed written submissions.
5 Section 237 of the Act is applicable to the question of costs: K v R [2010] WASCA 237 [149]; T v L [2006] WASCA 46 (S). Section 237 relevantly provides:
237. Costs - FLA s. 117
(1) Subject to subsection (2) and sections 205SB and 242, each party to proceedings under this Act is to bear the party’s own costs.
(2) 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), (6A) 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.
(3) 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; and
(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; and
(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; and
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court; and
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; and
(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 Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311, the High Court considered s 117 of the Family Law Act, which is comparable to s 237 of the Family Court Act. Stephen, Mason, Aickin and Wilson JJ said, as to the relationship between s 117(1) and s 117(2):
'It is an accurate description of s 117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s 117(2). As sub-s (1) is expressed to be subject to sub-s (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117(2) in 'a clear case' (315).'
Their Honours then noted that s 117(2) does not, as a matter of law, require the judge to specify the circumstances which justify the making of an order (315).
7 The appellant contends that costs should be ordered in the terms that he seeks, having regard to the following matters:
(a) he has paid all the costs of bringing the appeal;
(b) the 'main reason' the appeal was brought was to challenge a 'completely unjust and unbalanced' judgment of the Family Court and that the issue raised was of 'very real' importance as he was never in a 'stronger economic position';
(c) another reason the appeal was brought was to bring to the attention of the court a 'loophole where people in court proceedings may gift valuable assets away';
(d) the respondent 'may' claim there is a loan for the costs of the respondent, and the appellant challenges the existence of such a loan;
(e) the appeal was brought in the pursuit of natural justice, pursuing 'reasonable grounds' of appeal; and
(f) the respondent has greater financial resources than the appellant, and the appellant is on 'centrelink welfare'.
8 In relation to the matters in s 237(3)(a) and (b) of the Act, in this case there is no affidavit evidence addressing the parties' current financial circumstances. Neither party appears to be in receipt of financial assistance by way of legal aid. Whilst the appellant disputes the finding by the magistrate that the appellant was in a stronger economic position than the respondent [133], there is no evidence which would, for present purposes, support a finding to the contrary.
9 As to subsection (c) of s 237(3), there appears to us to be nothing in the conduct by either party which would make that matter a material consideration in this case. Also, subsections (d) and (f) of s 237(3) appear to have no application on the material before the court. As to s 237(3)(e), the appellant has been wholly unsuccessful. There is no matter otherwise relevant to the exercise of the court's discretion. In particular, the matters raised by the appellant in (a) - (e) of his submissions (see [7] above) have no relevance to, or at least in the particular circumstances of this case can be given no material weight in relation to, the proper disposition of the question of costs.
10 The circumstance that the appellant has been wholly unsuccessful in the appeal, in all the circumstances of this case, and in light of the parties' submissions, is sufficient to justify an order that the appellant pay the respondent's costs of the appeal, to be taxed if not agreed. The court should so order.
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