Grove v Grove

[2022] WASCA 86

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Discontinuance of proceedings
4. › Costs on discontinuance
5. › Whether defendant's conduct unreasonable so as to warrant adverse costs order against defendant
6. › Whether document fatal to proceedings in defendant's possession at all material times
7. › Rules of the Supreme Court 1971 (WA), O 23 r 2(3)
1. Appeal
2. › Leave to appeal
3. › Costs orders
4. › Discretionary costs order
5. › Standard of appellate review
6. › Whether manifest error or order outside limits of sound discretionary judgment
7. › House v The King (1936) 55 CLR 499
1. Practice and Procedure
2. › Costs
3. › Discontinuance of proceedings
4. › Where matter resolves without determination on merits
5. › Whether party acted so unreasonably that other party should obtain costs

Quick Take

Where a party in possession of a document fatal to the opposing party's case fails to disclose it before or during litigation, and the opposing party subsequently discontinues upon learning of the document, the party in possession may be ordered to pay the discontinuing party's costs on the basis that their failure to disclose constituted unreasonable conduct that caused the unnecessary litigation. The inference that a party was in possession of a document at all material times may be drawn from the fact of later possession, particularly where the party fails to adduce evidence explaining when possession was acquired.