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District Court 27 May 2014

Ferris v Atherton (No 2)

[2014] NSWDC 273

Domestic & family violence
CRIMINAL LAW QUESTION OF TEST TO BE APPLIED NOT FRIVOLOUS OR VEXATIOUS NOT WITHOUT SUBSTANCE

Citation: Ferris v Atherton (No 2) [2014] NSWDC 273
Court: District Court of New South Wales
Date: 27 May 2014
Judge(s): Cogswell SC DCJ

Background

This decision dealt with the costs consequences of a failed application for an apprehended personal violence order (APVO). The applicant, an unrepresented member of the public, had sought an APVO against the respondent, alleging the respondent had made threatening phone calls. The application was dismissed at first instance after the court found, on the balance of probabilities, that the identity of the caller could not be established.

The respondent sought a costs order against the applicant following the dismissal. An appeal against the substantive decision had also been heard, and the costs question was the remaining issue for Cogswell SC DCJ to resolve.

  • Which statutory test governs costs after a dismissed APVO application: the "frivolous or vexatious" standard under s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007, or the discretionary costs power under s 99(2) of that Act read with s 213(1) of the Criminal Procedure Act 1986?
  • Whether the applicant's APVO application was frivolous or vexatious.
  • If the alternative test applied, whether the respondent should be compensated for his costs, and to what extent.

Decision

The applicable test. Cogswell SC DCJ noted his own earlier view that the Court of Appeal in Mahmoud v Sutherland [2012] NSWCA 306 had arguably overlooked the significance of the word "domestic" in s 99(3), which meant that provision may not have been the correct one to apply in a personal (non-domestic) violence context. However, bound by the Court of Appeal's decision, his Honour applied the s 99(3) test: costs could only be awarded against the applicant if the application was frivolous or vexatious.

Was the application frivolous or vexatious? The respondent argued the application was vexatious because it was motivated by unrelated industrial litigation. Cogswell SC DCJ rejected that argument, noting the alleged motive had never been aired in proceedings and the applicant had no opportunity to respond to it. On the question of frivolousness, his Honour applied the formulation discussed in Cunningham v Cunningham [2012] NSWSC 849, that a matter is frivolous if it is "without substance or groundless or fanciful." The application did not meet that threshold. The applicant had filed evidence, the matter was contested on its merits, and the dismissal turned on the weight of evidence rather than any want of substance in the claim itself.

The costs order refused. Applying the primary (Court of Appeal) test, the respondent's application for costs was refused. The court went further and considered the alternative discretionary analysis under s 213(1) of the Criminal Procedure Act, drawing on the High Court's reasoning in Latoudis v Casey (1990) 170 CLR 534 that costs compensate rather than punish. Weighing the applicant's unrepresented status, the legitimate purpose of the APVO legislation, some misapprehension about the Practice Note, and the respondent's need to defend the proceedings, his Honour indicated that, had the alternative test applied, he would have ordered the applicant to pay one third of the respondent's costs. This was expressed as an opinion only, not an order, given the primary test produced a different result.

Costs of the appeal. Each party was ordered to bear their own costs of the appeal.

Orders Made

  • The respondent's application for the applicant to pay his costs was refused.
  • Each party is to pay their own costs of the appeal.

Key Takeaways

  • The District Court confirmed it was bound by the Court of Appeal's decision in Mahmoud v Sutherland [2012] NSWCA 306, applying the s 99(3) "frivolous or vexatious" threshold to costs after a dismissed APVO application, even where the judge doubted the correctness of that approach for non-domestic violence orders.
  • An application supported by evidence and dismissed on the weight of that evidence, rather than for want of any substance, will not ordinarily be characterised as frivolous within the meaning of s 99(3).
  • A costs order under the Crimes (Domestic and Personal Violence) Act and associated provisions serves a compensatory purpose, not a punitive one, consistent with the High Court's reasoning in Latoudis v Casey.
  • Where the alternative discretionary costs power under s 213(1) of the Criminal Procedure Act applied, relevant factors included the applicant's unrepresented status, the intended accessibility of the APVO regime for members of the public, non-compliance with Practice Notes, and the extent to which the respondent was required to incur legal costs.
  • In dismissing the respondent's costs application, the court signalled that a partial costs order (here, one third) may be appropriate in future cases where those competing considerations are balanced against a successful respondent's entitlement to some compensation.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 10, 99(2), 99(3)
- Criminal Procedure Act 1986 (NSW), s 213(1)

Cases
- Cunningham v Cunningham [2012] NSWSC 849
- Garde v Dowd [2011] NSWCA 115
- Latoudis v Casey (1990) 170 CLR 534
- Mahmoud v Sutherland [2012] NSWCA 306
- Mahmoud v Sutherland [2013] NSWDC 140
- Ohn v Walton (1995) 36 NSWLR 77