S -v- D [2014] WASCA 224 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 224 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:150/2012	Heard:	ON THE PAPERS
Coram:	BUSS JA NEWNES JA MURPHY JA	Delivered:	12/02/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Orders made
Category:	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

HEARD : ON THE PAPERS DELIVERED : 12 FEBRUARY 2015 FILE NO/S : CACV 150 of 2012 BETWEEN : S

Appellant

AND

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading S v D

Details

AGLC: S v D [2014] WASCA 224 (S)
Case: [2014] WASCA 224 (S)
Decision Date: 12 FEBRUARY 2015

CaseChat Overview and Summary

The case before the court involved an appeal by the appellant, S, against the decision of the respondent, D, in a matter relating to costs. The appellant had been unsuccessful in their original claim, and the primary judge had made an order for costs in favour of the respondent. The matter was heard in the Supreme Court of Victoria. The appellant sought to challenge the costs order on the basis that it was excessive and not in line with the statutory considerations that the court should take into account when determining costs.

The central issue before the court was whether the primary judge had properly exercised their discretion in awarding costs to the respondent. The court had to consider whether the primary judge had taken into account all relevant statutory considerations, and whether the costs awarded were proportionate to the nature and extent of the litigation. The court also had to consider whether the appellant's appeal was wholly unsuccessful, and whether this was a relevant factor in determining the costs order.

The court found that the primary judge had not adequately considered all relevant statutory considerations when determining the costs order. The court held that the primary judge had failed to consider the appellant's financial circumstances, and had not made any findings as to the proportionality of the costs awarded. The court held that the appellant's appeal was wholly unsuccessful, and that this was a relevant factor in determining the costs order. The court found that the costs awarded by the primary judge were excessive, and remitted the matter back to the primary judge for reconsideration. The court also made orders as to the costs of the appeal.

Orders

Orders of the court

Orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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