Following on from my previous post about applications to cancel costs agreements, I wanted to highlight a recent WA Court of Appeal decision in: S v D  WASCA 224 (S).
This decision dealt with the appropriate costs orders following an unsuccessful appeal from the Family Court of Western Australia. It gives a timely reminder of the High Court’s decision in Penfold v Penfold (1980) 144 CLR 311:
‘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).‘
Section 117 is, of course, in identical terms to section 237 of the Family Court Act 1997 (WA).
The Court of Appeal went on to observe that, as a matter of law, a judge does not have to specify the circumstances which justify the making of an order.
In all of the circumstances, the fact that the Appellant was wholly unsuccessful was sufficient to justify an order for costs against him.