Thornton and WorkCover Corporation of South Australia (No 3)

[2009] FamCA 815

FAMILY COURT OF AUSTRALIA

THORNTON & WORKCOVER CORPORATION OF SOUTH AUSTRALIA (NO. 3) [2009] FamCA 815

FAMILY LAW – COSTS – applications by both parties for costs – where the father had brought an application seeking that the respondents be restrained from using Family Court documents in other proceedings – where the application was dismissed and orders were made in favour of the respondent – where it is appropriate that each party bear their own costs pursuant to s 117(1) – applications dismissed

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Thornton

RESPONDENT: WorkCover Corporation of South Australia

FILE NUMBER: ADC 498 of 2009

DATE DELIVERED: 13 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR J. CRONSHAW

SOLICITOR FOR THE APPLICANT: JOHN CRONSHAW

COUNSEL FOR THE RESPONDENT: MS CLARK

SOLICITOR FOR THE RESPONDENT: JOHNSON WINTER SLATTERY

Orders

1. Both applications for costs are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Thornton & WorkCover Corporation of South Australia is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 498 of 2009

MR THORNTON

Applicant

And

WORKCOVER CORPORATION OF SOUTH AUSTRALIA

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me at this stage of the proceedings an application for costs by both parties.  The applicant to the original proceedings, Mr Thornton, seeks that WorkCover pay his costs of the application heard by me.  WorkCover seek that the applicant Mr Thornton pay their costs of the application before me. 

2. This is a matter which would not fall within the normal category of litigation between husband and wife or mother and father but was an unusual application initiated by the father seeking certain orders in relation to WorkCover.  The particulars of the application are set out in my reasons for judgment delivered in this matter on 27 May 2009.

3. In summary, the applicant, Mr Thornton, was seeking that WorkCover Corporation and its servants and agents be restrained from using documents from the Family Court proceedings in other proceedings before other Courts.  (That is a rephrase of the specific orders that Mr Thornton was seeking).  After hearing the matter and considering both the application by the applicant and the response of the respondents, I made certain orders dismissing the applicant’s application and making orders which could be described as orders which were in favour of WorkCover.

4. The Family Law Act makes specific provision in relation to the question of costs. Section 117 provides that subject to subsection (2) and subsection 70 NFB(1) (and other sections which are not relevant to this matter) each party to the proceedings should bear his or her own costs. Subsection (2) says:

   “If in proceedings under this Act the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4) and (5) and the applicable rules of Court make such order as to costs and security for costs, whether by way of interlocutory order or otherwise as the Court considers just.”

5. The authorities in relation to the question of costs indicate therefore that the Court has a discretion to make an order for costs, notwithstanding the specific provisions of section 117(1). Section 117(2A) sets out matters which the Court needs to consider when making a determination as to whether any order for costs should be made.

6. The specific matters in section 117(2A) include the financial circumstances of each of the parties to the proceedings. WorkCover Corporation as such is assumed to have adequate financial arrangements, although there is no information before the Court about the financial circumstances of either of the parties. I do not consider that to be a significant matter in these proceedings.

7. Neither party is in receipt of legal aid (criteria to be considered under subsection (b)). 

8. Subsection (c) is the conduct of the parties to the proceedings including, without limiting, the generality of the conduct of the parties in relation to pleadings, particulars, discovery inspection, directions to answer questions, admission of facts, production of documents and similar matters. 

9. The applicant relies on this subsection to the extent that counsel suggests that the conduct of WorkCover was such that they should have made an application to be released from any undertaking to the Court well prior to the application before me.

10. I take into account that there have been proceedings before this Court on other occasions which involved an appearance by counsel for WorkCover some years ago and discussions on those occasions about the use to which those certain documents could be put.  However, I also take into account the application of the father in these proceedings and the response filed by the WorkCover Corporation in which certain orders were sought. 

11. Paragraph (d):

    Whether the proceedings were necessitated by the failure of a party to proceedings to comply with previous orders of the Court.

12. There was argument before me about the significance of the orders made by Justice Murray some years ago and I have dealt with that in my judgment.  I rely upon the findings that I made in my judgment that I did not consider there to be any situation before the Court which indicated that WorkCover had breached any specific undertaking ever given to the Court in relation to the documents.  In my judgment I dealt with the question of any implied undertaking.  I therefore consider that the criteria in subsection (d) are not relevant to this decision in relation to costs.

13. Subsection (e) is relevant:  that is whether any party to the proceedings has been wholly unsuccessful in the proceedings.  The applicant, Mr Thornton, has been wholly unsuccessful in the proceedings to the extent that my judgment was, and the orders made were, that all applications by the father were to be dismissed.  The respondent, WorkCover, were successful in the proceedings obtaining orders which released them from any implied undertaking or obligation and specifically giving them permission to inspect Family Court documents and to use such documents in appropriate proceedings.  Again, that is a summary of the orders that were made and I rely specifically on the detail of the orders accompanying my judgment on 27 May 2009.

14. Subsection (f) is whether either party to the proceedings has made an offer to settle.  That is not relevant to these proceedings. 

15. Subsection (g) is such other matters as the Court considers relevant.  I take into account that the proceedings before the Court in relation to the question of the implied undertaking not to use the documents for any other purpose was a matter which involved some complex argument.  My judgment is in excess of 29 pages, dealing with a significant number of items and in particular, discussing at length the principles to be applied in this matter.

16. Taking all of the provisions of section 117(2A) into account, I have no difficulty in dismissing Mr Thornton’s application for costs as I am not satisfied that any of the criteria in section 117(2A) would make it appropriate to make an order for his costs. Certainly, I do not consider that it would be just in these circumstances as required by section 117(2) to make an order for costs in favour of the applicant, Mr Thornton.

17. In considering the application for costs made by WorkCover, I take into account the complexity of the arguments before me when I gave my judgment on 27 May 2009 and the nature of the application which was before me, namely a consideration of using Family Court documents and information in other proceedings before other Courts.

18. Taking into account that factor, which I am entitled to do under subsection (g) of section 117(2A), I do not consider that, notwithstanding WorkCover has been wholly successful and Mr Thornton has been wholly unsuccessful in the proceedings, that it would bring about a situation which makes it just to make an order for costs. It is one of those circumstances, in my view, under section 117(1) where each party to the proceedings shall bear their own costs.

19. I therefore dismiss both applications for costs and will hear the parties counsel in relation to the question of the stay.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  31 August 2009