Citation: Tosson Mahmoud v Vincent Sutherland [2013] NSWDC 140
Court: District Court of NSW
Date: 7 June 2013
Judge: Cogswell SC DCJ
Background
Two residents of the same Sydney unit block became embroiled in a dispute. One resident (the appellant) applied for an apprehended personal violence order against the other. The Local Court magistrate dismissed the application and ordered the appellant to pay the respondent's legal costs, which exceeded $4,000.
The appellant appealed to the District Court, which dismissed the appeal. He then appealed to the Court of Appeal. The Court of Appeal dismissed the appeal on the substance of the violence order but found that both the magistrate and the District Court had overlooked the applicable costs provision in the Crimes (Domestic and Personal Violence) Act 2007. The Court of Appeal remitted the costs question to the District Court for fresh determination.
On remittal, both parties remained unrepresented. The judge identified a potential error in the Court of Appeal's reasoning and sought assistance from the Crown Solicitor's Office, which declined to appear as amicus but briefed counsel independently to assist the court.
Legal Issues
- Whether the appellant's original application for an apprehended personal violence order was "frivolous or vexatious" within the meaning of s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007, so as to justify a costs order against him
- Whether s 99(3), which refers to "apprehended domestic violence orders", was correctly applied by the Court of Appeal to a matter involving an apprehended personal violence order (a distinct category)
- Whether the judge should disqualify himself for apprehended bias, following communications from strangers to the litigation
- Whether costs could be awarded against those strangers (a barrister and a law student) who had sought to intervene
- Whether a pending application for special leave to appeal to the High Court from the Court of Appeal's decision prevented the District Court from proceeding
Decision
Issue 1: Disqualification for bias
An unidentified law student approached the judge's associate before proceedings commenced and later passed a handwritten note to the associate suggesting the judge had misread a statutory provision. The judge marked the note and the student's card as exhibits for identification and disclosed them to both parties. The judge found no basis for disqualification: the communications were fully disclosed, and neither amounted to improper interference that would cause a fair-minded observer to apprehend bias.
Issue 2: Whether s 99(3) applied to a personal violence order application
The judge noted a significant concern: s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007 restricts costs orders against applicants for "apprehended domestic violence orders," yet this case involved an apprehended personal violence order. The Court of Appeal had directed the District Court to apply s 99(3), apparently without adverting to that distinction. The District Court acknowledged it was bound by the Court of Appeal's direction and could not authoritatively resolve whether that court had erred. The judge nonetheless noted the issue openly and indicated he would bring it to the attention of the Court of Appeal through the Registrar.
Issue 3: Whether the application was frivolous or vexatious
Applying the s 99(3) test as directed by the Court of Appeal, the judge found the original application was not frivolous or vexatious. The appellant presented as a determined and articulate litigant. Persistence and an opponent's frustration with that persistence do not satisfy the test. The evidence before the magistrate, including the transcript relied upon by the respondent, did not establish that the application was brought without genuine basis.
Issue 4: Costs against strangers to the litigation
The appellant sought a costs order against the barrister and law student who had sought to intervene. The judge rejected this. A costs order may only be made against parties to proceedings, and neither individual was a party. The judge also confirmed, citing Cachia v Hanes (1994) 179 CLR 403, that compensation for a self-represented litigant's lost time does not constitute recoverable costs.
Issue 5: High Court special leave application
A pending application for special leave to appeal to the High Court from the Court of Appeal's decision in the same matter did not prevent the District Court from proceeding. The remittal order remained operative, and the District Court was obliged to act upon it.
Orders Made
- Appeal upheld
- Costs order of the magistrate set aside
Key Takeaways
- The District Court confirmed it remains bound by a Court of Appeal remittal order even where the judge identifies a potential error in the Court of Appeal's reasoning; the appropriate response is to flag the issue for the Court of Appeal's attention, not to depart from the direction.
- Under s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007, costs may only be awarded against an applicant for an apprehended domestic violence order where the application was "frivolous or vexatious"; persistence and an opponent's annoyance are insufficient to meet that standard.
- A costs order against a stranger who seeks to intervene in proceedings is not available; only parties to the litigation are amenable to costs orders.
- Cachia v Hanes (1994) 179 CLR 403 remains the applicable authority confirming that lost time of a self-represented litigant cannot constitute recoverable costs.
- Disclosure of unsolicited communications to all parties, and marking those communications for identification, is the appropriate procedural response to approaches from strangers before or during a hearing; such conduct does not of itself give rise to apprehended bias.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001, s 20.
- Crimes (Domestic and Personal Violence) Act 2007, ss 99(1), 99(2), 99(3).
Cases
- Cachia v Hanes (1994) 179 CLR 403.
- DAR v Director of Public Prosecutions (Qld) [2008] QCA 309.
- Mahmoud v Sutherland [2012] NSWCA 306.
- Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166.
- Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1.