T v L

[2006] WASCA 46 (S)

"T" -v- "L" [2006] WASCA 46 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 46 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	FUL:159/2004	Heard:	16 NOVEMBER 2005
Coram:	MALCOLM CJ McLURE JA MURRAY AJA	Delivered:	21/03/06
Supplementary Delivered:	26/07/06
No of pages:	6	Judgment Part:	1 of 1
Result:	Costs awarded to respondent
Category:	B
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Parties:	"T" "L"
Catchwords:	Costs of appeal Turns on own facts
Legislation:	Family Court Act 1997 (WA), s 211(3), s 237 Family Law Act 1975 (Cth), s 117 Rules of the Supreme Court 1971 (WA), O 21 r 10
Case References:	Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Penfold v Penfold (1980) 144 CLR 311 Raybos Australia Pty Ltd & Anor v Tectran Corporation Pty Ltd & Ors (1988) 62 ALJR 151 T v L [2006] WASCA 46 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "T" -v- "L" [2006] WASCA 46 (S) CORAM : MALCOLM CJ

McLURE JA
MURRAY AJA

HEARD : 16 NOVEMBER 2005 DELIVERED : 21 MARCH 2006 SUPPLEMENTARY
DECISION : 26 JULY 2006 FILE NO/S : FUL 159 of 2004 BETWEEN : "T"

Appellant

AND

"L"
Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : MARTIN J

Citation : "T" - v - "L"

File No : FUL 159 of 2004

(Page 2)

Catchwords:

Costs of appeal - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 211(3), s 237

Family Law Act 1975 (Cth), s 117
Rules of the Supreme Court 1971 (WA), O 21 r 10

Result:

Costs awarded to respondent

Category: B

Representation:

Counsel:

Appellant : Mr S J Jones
Respondent : Mr J B Hedges

Solicitors:

Appellant : Rouphael & Associates
Respondent : E N Stamatiou & Co

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

Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Penfold v Penfold (1980) 144 CLR 311
Raybos Australia Pty Ltd & Anor v Tectran Corporation Pty Ltd & Ors (1988) 62 ALJR 151
T v L [2006] WASCA 46

Case(s) also cited:

Nil
(Page 3)

1 MALCOLM CJ: I have had the opportunity of reading in draft the reasons to be published by McLure JA and agree that the Court should order that the appellant pay the respondent's costs of the appeal to be taxed, including the costs of the current application for the reasons to be published by her Honour.

2 McLURE JA: On 21 March 2006 the Court of Appeal delivered judgment in "T" v "L"[2006] WASCA 46. On the same day and in the absence of the respondent, the Court ordered that the appeal be dismissed.

3 The respondent subsequently applied for an order that the appellant pay the respondent's costs of the appeal to be taxed. The appellant opposes the application. The parties have filed written submissions. The respondent also relies on an affidavit of Andrew McIntosh who had been briefed by the respondent's solicitors to attend and take the judgment at 9.30 am on 21 March 2006. Counsel who had appeared for the respondent in the appeal, Mr J Hedges, was absent overseas when judgment was delivered. Mr McIntosh was instructed to apply to adjourn the question of costs until Mr Hedges returned from overseas.

4 Mr McIntosh arrived at Court moments after the Court had retired after delivering judgment dismissing the appeal. Mr McIntosh had a discussion with counsel for the appellant, Mr S Jones, concerning the reason why Mr McIntosh was late. Mr Jones was informed by Mr McIntosh that he was late because of a minor traffic accident. However, the reason for Mr McIntosh's failure to be in attendance at Court when the matter was called is not addressed in his affidavit. The question of recalling the Court was also discussed. Mr McIntosh decided not to have the matter recalled notwithstanding Mr Jones' continued presence at Court because, inter alia, he was not instructed, and not in a position, to argue costs.

5 The appellant opposes the application solely on the grounds that the Court cannot or should not, on the limited material before the Court, make a costs order after the appeal had been dismissed. The appellant contends that his counsel, Mr Jones, moved for orders that the appeal be dismissed with no order as to costs. That is incorrect. The transcript of the proceedings (which show they commenced at 9.32 am and concluded at 9.33 am) is as follows:

"McLURE JA: This matter was heard by the Full Court on 16 November 2005. The Court is unanimously of the view that

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the appeal should be dismissed and I publish the Court's reasons. Are you formally moving for orders?

JONES, MR: I am formally moving for orders that the appeal be dismissed, your Honour, yes.

McLURE JA: No costs application? No, there is no one here.

JONES, MR: No.

McLURE JA: I order that the appeal be dismissed."

6 Thus, this Court has not considered, nor made any order in relation to, the costs of the appeal. Further, a review of the Court files discloses that the order made on 21 March 2006 has not been extracted. Although Mr McIntosh does not depose to the cause of his delayed arrival, the undisputed facts establish that the failure of the respondent to be represented at the delivery of the judgment was solely as a result of the accidental and inadvertent failure of counsel to arrive promptly at the appointed time. That is sufficient to enliven the Court's inherent jurisdiction and jurisdiction under O 21 r 10 of the Rules of the Supreme Court 1971 (WA) to consider and determine the costs of the appeal: Raybos Australia Pty Ltd & Anor v Tectran Corporation Pty Ltd & Ors (1988) 62 ALJR 151 at 151 - 152; Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 at 524. I am satisfied that in the circumstances of this case the appellant's opposition to that course is without merit and that it would be manifestly unjust to deprive the respondent of the opportunity to seek the costs of the appeal.

7 The appellant's appeal was brought under s 211(3) of the Family Court Act 1997 (WA) ("the WA Act"). Section 237 of the WA Act deals with the costs of proceedings under the Act. It provides:

"(1) Subject to subsection (2) and section 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 subsection (3) 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.

(Page 5)

(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;

(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, in accordance with section 240 or otherwise, 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."

8 Section 237 is in materially the same terms as s 117 of the Family Law Act 1975 (Cth) ("the Commonwealth Act"). An earlier version of s 117 of the Commonwealth Act was considered by the High Court in Penfold v Penfold (1980) 144 CLR 311. Subsections (1) and (2) of the earlier version of s 117 of the Commonwealth Act were in materially the same terms as s 237(1) and (2) of the WA Act but the matters in s 237(3) were not mandatory considerations but were matters the Court was entitled to take into account in making an order for costs. The High Court in dealing with the relationship between ss (1) and (2) of s 117 stated (at 315):
(Page 6)

"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 subsection 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 … 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'."

9 I turn now to the matters to which the Court must have regard in s 237(3). The matters in pars (b), (c), (d) and (f) have no application in the circumstances of this case. As to the financial circumstances of the parties, the appellant is financially well off and in a superior financial position to the respondent. Further, the appellant has been wholly unsuccessful in the proceedings. In particular, he was unable to identify any material error of fact or law, express or implied, that entitled this Court to interfere with what was in essence a discretionary decision of the primary Judge. Indeed, the appellant fell well short of the requirement to demonstrate that the primary Judge had made a material error (express or implied) of fact or law. In the circumstances, I am satisfied that the Court should order that the appellant pay the respondent's costs of the appeal to be taxed, including the costs of this application.

10 MURRAY AJA: I agree that the respondent should have her costs, including of this application.