Costs - Dismissal of appeal from Magistrates Court - Restraining Orders Act 1997 (WA) - Normal order as to costs

District Court of Western Australia Act 1969 (WA), s 64(1), s 64(3)

Supreme Court Act 1935 (WA), s 37(1)

Appellant ordered to pay the respondent's costs of the appeal to be taxed if not agreed

CL (pseudonym initials) v ES (pseudonym initials) [2026] WADC 17

Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (S)

1. On 27 February 2026 I delivered reasons for decision CL (pseudonym initials) v ES (pseudonym initials)[1] dismissing the appellant's appeal against a decision of the Magistrates Court delivered on 5 September 2025 in which ES was granted a Final Family Violence Restraining Order and ordered that:[2]
   1. The appellant have leave to bring the appeal out of time.
   2. The appeal is dismissed.
   3. If the appellant wishes to be heard on the question of costs he is to file and serve written submissions by no later than Monday 9 March 2026.
   4. The respondent do file and serve responsive submissions by no later than Friday 13 March 2026.
   5. The question of costs be determined on the papers.
   6. If Appellant does not file submissions by 9 March 2026 the appellant pay the respondents costs of the appeal to be taxed if not agreed.
2. Pursuant to Order 3 the appellant has filed written submissions opposing an order for costs being made against him. The appellant submits the appropriate order for costs is that:

(a) each party bear their own costs of the appeal; or

(b) in the alternative any costs be limited to reasonable disbursements only.

1. Pursuant to Order 4 the respondent has filed responsive submissions submitting that the normal order as to costs should be made, that is, that costs follow the event and the appellant should be ordered to pay the respondent's costs of the appeal.

1. In relation to the power to award costs and the principles governing the award of costs I adopt what I said in Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers:[3]
   1. Pursuant to s 64(1) of the District Court of Western Australia Act 1969 (WA) the court has power to award costs of any action in accordance with any costs determination, in such manner as a judge directs, and in default of such a direction shall abide the event. Pursuant to s 64(3) the District Court has the same power in relation to costs as has the Supreme Court.
   2. The Supreme Court's power to award costs is pursuant to s 37(1) of the Supreme Court Act 1935 (WA) and O 66 RSC. Relevantly, O 66 r 1 RSC reads:
      1. General rules as to costs

(1) Subject to the express provisions of any statute and of these rules the costs of and incidental to all proceedings ... shall be in the discretion of the Court but, without limiting the general discretion conferred on the Court by the Act, and subject to this Order, the Court will generally order that the successful party to any action or matter recover his costs.

1. A District Court judge has a broad discretion to determine the costs to be paid by a successful party, including an order for indemnity costs.4 Despite its breadth, the discretion to award costs is not unfettered, and must be exercised judicially.5 The starting point in relation to an award of costs is that the court will generally order that the successful party to the action recover their costs.6
2. In Strzelecki Holdings Pty Ltd the court explained:7
   1. What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case. The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues. The exercise of the discretion in that way is recognised by a number of rules in the RSC, together with the practice of the Court, and authority. So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part. In the present case, Strzelecki did not contend that the issues raised by the Jorgensens, and on which they were unsuccessful, were raised unreasonably or improperly.
   2. Under O 66 r 1(3) RSC, where a party, though generally successful in an action, has, by the introduction of some issue or issues on which it has failed, increased the costs, the Court may order such party to pay the costs of such issue or issues. It is well-recognised that an order that a successful party recover only a portion of its costs, where it has not been wholly successful, should not be made as a matter of course, for at least two reasons. First, it is often the case that a successful party will not succeed on every issue raised. Secondly, to attempt, in every case, an analysis of which party was successful on which issue would add uncertainty and complexity to the outcome of litigation, and add to the time and cost of costs arguments. Consequently, the power to apportion costs in this way should only be exercised where there are discrete and severable issues on which the generally successful party failed, and which added to the cost of the proceedings in a significant and readily discernible way. Furthermore, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if, by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case.
   3. Where the Court decides, in the exercise of its discretion, to modify the usual costs orders to reflect the limited success of the successful party, that power will be exercised broadly, and as a matter of impression, and without any attempt at mathematical precision (which is likely to prove illusory in any event). That approach reflects the fact that it may be difficult to separate the factual and evidentiary substratum of different issues, the fact that some issues are more important than others, and the fact that some issues are subsidiary to others.

(FN4: Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [48])

(FN5: Strzelecki Holdings Pty Ltd v Jorgensen [48])

(FN6: Strzelecki Holdings Pty Ltd [49])

(FN7: Strzelecki Holdings Pty Ltd [50] - [52])

1. Therefore, the normal rule as to costs is that they follow the event. That is, the unsuccessful party is ordered to pay the successful party's costs.

1. In his written submissions the appellant makes unjustified and irrelevant allegations against the respondent which essentially fail to acknowledge his appeal was dismissed. He further submits that the normal order as to costs should not be made because of his limited financial resources and hardship which he would experience if ordered to pay the respondent's costs. He also submits that the issues raised in the appeal were limited in scope.
2. The appellant's financial circumstances as outlined in his written submissions are not relevant to the discretion to award costs. There is nothing in the appellant's financial circumstances as outlined by him, even if those circumstances were confirmed on affidavit, which persuades me that the normal order as to costs should not be made.
3. Nor do I accept the appellant's submissions that the issues raised in the appeal were limited in scope. The issues raised by the grounds of appeal and the written submissions filed by the appellant, as I found in my reasons for decision, essentially sought to reargue on appeal the matters which were argued before the magistrate, requiring the court to read the transcript of the hearing before the magistrate and have regard to voluminous documentation which was filed in the magistrates court or tendered during the hearing. I do not accept his submission that a costs order against him would be disproportionate to the nature of the proceedings.
4. Further, I reject the appellant's submission that because of the nature of restraining order proceedings 'courts frequently exercise caution when making costs orders so as not to discourage parties from exercising their legal rights or seeking review of decisions'. No authority is cited in support of that submission. Certainly in the Magistrates Court costs orders against an unsuccessful party would not normally be made, but where an unsuccessful party in the Magistrates Court has failed to accept the decision of a magistrate, who is normally best placed to make decisions about these sorts of matters, and where an appeal against a discretionary judgment has had the effect of continuing the acrimony between the parties, although a person has a right to bring the appeal, there is every reason why the normal order as to costs should be made if the appeal is unsuccessful.
5. In summary, there is nothing in the appellant's written submissions which persuades me to exercise my discretion other than by making the normal orders as to costs where the unsuccessful party is ordered to pay the successful party's costs.
6. Therefore, I order the appellant to pay the respondent's costs of the appeal to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] CL (pseudonym initials) v ES (pseudonym initials) [2026] WADC 17.

[2] Order by his Honour Judge Herron dated 27 February 2026.

[3] Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27 (S) [12] - [15].