DUNNE (A PSEUDONYM) -v- LLOYD (A PSEUDONYM) [No 4] [2025] WASCA 168 (13 November 2025)

(a) the financial circumstances of each of the parties to the proceedings; and

(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; and

(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; and

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court; and

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; and

(f) whether a party to the proceedings has 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.

1. The effect of these provisions was discussed by this Court in P v Q [No 2].[2] In that case Mitchell, Vaughan and Hall JJA said:[3]

In Penfold v Penfold, the plurality in the High Court observed that an equivalent provision to s 237(1) expressed a general rule but was not paramount to the equivalent of s 237(2) of the Act. The former must yield whenever the court finds in a particular case that there are circumstances justifying the making of an order for costs. Section 237(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.

It has been recognised that, while costs do not 'follow the event' any more on an appeal than they do in any other proceedings under the Act, a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the 'fruits of their judgment', can be of great significance. However, that consideration applies where an appellant unsuccessfully challenges orders made in favour of the other party on appeal, rather than where the appeal is successful.

1. The reference in this passage to the significance of a party being potentially denied the 'fruits of their judgment', is a reference to the decision of this Court in AK v V [No 2].[4] I note that AK v V [No 2] did not concern a parenting order. I will refer to that matter later.
2. I have taken into account all of the matters in s 237(3), to the extent that the evidence enables the Court to do so. Four particular matters under s 237(3) were identified and addressed by the parties in submissions as being relevant in the present case:

(a) s 237(3)(a), which concerns the financial circumstances of each of the parties to the proceedings;

(b) s 237(3)(c), which concerns the conduct of the parties to the proceedings in relation to the proceedings;

(c) s 237(3)(e), which concerns whether any party to the proceedings has been wholly unsuccessful in the proceedings; and

(d) s 237(3)(g), which concerns any other matters as the court considers relevant.

1. I deal, first, with the matter in s 237(3)(e), that any party has been wholly unsuccessful in the proceedings.
2. It is the case that the appellant was wholly unsuccessful in the proceedings, inasmuch as the appeal has been dismissed, albeit that a preliminary issue dealt with by the Court in relation to the jurisdiction of the appeal established that the appeal was properly commenced by the appellant and within jurisdiction. Beyond that, I accept that the appellant was wholly unsuccessful. That is a matter which can be of great significance, but it will not necessarily be determinative in every case.
3. I would observe that the expression 'the fruits of a judgment' referred to in AK v V [No 2] is far more apt in cases concerning financial matters, in relation to which the incurring of costs may well deplete the fruits of a financial judgment that was obtained at first instance. In the present case, the proceedings concerned the parent who was to have the primary care of their five‑year‑old child, and other parenting orders made by the Family Court.
4. In those circumstances, to refer to the fruits of the judgment is probably inapposite. These proceedings concerned a matter of significant importance to each of the parties in relation to the future care and welfare of their son. It is not a matter which is ultimately able to be in any way valued in financial terms.
5. Moving to the other matters, the next matter is the financial circumstances of each of the parties to the proceedings (s 237(3)(a)).
6. There was no additional evidence put before the Court in relation to the current financial situation of the parties, although, in submissions, counsel for the respondent accepted that in a general sense, the financial position of the respondent is better or superior to that of the appellant. Indeed, counsel for the respondent asked the Court to take into account that there were remaining proceedings in the Family Court of Western Australia in relation to which the appellant is unrepresented and the respondent is represented by senior counsel, junior counsel, and a firm of solicitors. That fact alone, which is not contested, is enough to indicate that the Court can properly infer that the respondent's financial resources are superior to that of the appellant.
7. The third matter raised in the submissions is the 'conduct of the parties to the proceedings in relation to the proceedings' (s 237(3)(c)).
8. In that respect, the respondent raised the fact that there was an amendment of the appellant's case in the appeal. Those amendments confined the grounds of appeal and brought more clarity and structure to the grounds of appeal generally. As the respondent's counsel accepted, the amendments did not fundamentally alter the appeal. While the change to the appellant's solicitors and counsel, leading to the substituted appellant's case, was something that would have incurred some additional costs, it was ultimately productive of the efficient hearing of the appeal. In that regard, while it was unsuccessful, the appeal itself was conducted responsibly, clearly and concisely by counsel for the appellant.
9. In my view, there is nothing in relation to the conduct of the appeal itself to suggest that costs ought to be visited on the appellant by reason of the conduct of the parties.
10. In relation to the proceedings themselves, while they were described as complex (including reference to there having been a trial over 10 days), I would not characterise the appeal as complex. The appeal ultimately turned on findings of fact and the exercise of discretion. It did not involve any new principle. It involved the application of well-established principles established by the High Court in cases such as House v The King,[5] Norbis v Norbis,[6] and Bondelmonte v Bondelmonte.[7]
11. In the circumstances, the proceedings did not, in my view, raise particular factual or legal complexity to take it out of the ordinary.
12. In relation to the other matters that the Court considers relevant (s 237(3)(g)), the respondent submitted that costs were not a punishment but were a reimbursement. I accept that to be a relevant principle.
13. At the same time, there are proceedings which are ongoing between the parties. The proceedings involve their son. That requires the parties to continue to cooperate in the future. It is in the best interests of their son that disputation between the parties, particularly in relation to financial matters, is kept at a minimum. That can only be for the benefit of their son. In my view, that is a matter which is relevant to the exercise of the discretion.
14. In relation to the financial position of the parties, Senior Counsel for the respondent also referred to the decision of the High Court of Australia in Northern Territory v Sangare.[8]
15. That was a case in which the Court held that in relation to the general discretion in relation to costs in a defamation case, the impecuniosity of an unsuccessful party was not a consideration that without more may justify a decision to deny the successful party its costs. So much may be accepted. In the present case, of course, the Court is not dealing with the general discretion as to costs, but the discretions identified in s 237.
16. The application of s 237, rather than the general law, has two consequences. The first is the general position in s 237(1) that each party bear their own costs, and secondly, one of the considerations identified, as a mandatory consideration, is in fact the financial circumstances of each of the parties to the proceedings. The financial circumstances will therefore be relevant, and it is a matter tending against the application for costs by the respondent in the present case, that on the position that can be inferred from the circumstances, the appellant is in a worse financial position than the respondent.
17. In all of the circumstances, in my view, having regard to the respondent's superior financial position; to the proper and efficient conduct of the appeal; to the fact that the appeal was arguable, albeit wholly unsuccessful; and to the need for the parties to cooperate in future for the benefit of their son, the proper exercise of the discretion is to order that each party to the proceedings bear their own costs, pursuant to the general rule in s 237.
18. For that reason, I would make the following orders:
    1. the appeal be dismissed; and
    2. the parties bear their own costs of the appeal.

1. I concur with the reasons and with the orders that the Chief Justice has pronounced. I would add that in my view, there is wisdom in the way in which the legislation has addressed the question of costs by providing specifically for this to be a jurisdiction where the presumption is that parties will bear their own costs, unless the elements of the discretion are engaged under s 237(3). It is an important thing to state that the jurisdiction is a no-costs jurisdiction as a general proposition, because, as the Chief Justice has mentioned, it is important that the parties continue to have ongoing cooperative relations for the best interests of their son.
2. That seems to me to be an important consequence of the matters that the Chief Justice has enumerated. So, for that additional reason, I join particularly in what the Chief Justice has said.

1. In my view, the presumptive position that each party should bear its own costs should apply in this case. I am not satisfied that, having regard to the considerations in s 237(3), it would be just to make any other order. I otherwise agree with the Chief Justice.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Principal Associate to the Hon Chief Justice Quinlan.

[1] Dunne (A Pseudonym) v Lloyd (A Pseudonym) [No 3] [2025] WASCA 160.

[2] P v Q [No 2] [2023] WASCA 163 (S) (P v Q [No 2]).

[3] P v Q [No 2] [4] - [5] (Mitchell, Vaughan & Hall JJA). (references omitted)

[4] AK v V [No 2] [2021] WASCA 74 (AK v V [No 2]) .

[5] House v The King (1936) 55 CLR 499 .

[6] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513.

[7] Bondelmonte v Bondelmonte [2017] HCA 8.

[8] Northern Territory v Sangare [2019] HCA 25.