Citation: [2017] NSWDC 71
Court: District Court of New South Wales
Date: 04 April 2017
Judge(s): Judge AC Scotting
Background
The applicant successfully appealed against the imposition of an apprehended personal violence order (APVO) that had been sought against her by the respondent. Following that successful appeal, the applicant sought an order for costs against the respondent.
The matter was determined on written submissions from both parties, without a further hearing. The applicant also sought additional time to file evidence and submissions on a key threshold question that had not been addressed in her initial written submissions.
Legal Issues
- Whether the respondent's application for the APVO was "frivolous or vexatious" within the meaning of s 99A of the Crimes (Domestic and Personal Violence) Act 2007, so as to permit a costs order against the respondent
- Whether the applicant had established that she had incurred or paid "professional costs" as defined under the Act in connection with the appeal
- Whether the applicant should be granted a further opportunity to file evidence and submissions on the frivolous or vexatious threshold
Decision
Issue 1: Further opportunity to file submissions
The applicant had not addressed the frivolous or vexatious threshold in her submissions and sought more time to do so. The court declined to grant that further opportunity, finding that the interests of justice did not require it (at [5]).
Issue 2: Whether the APVO application was frivolous or vexatious
Section 99A of the Act prevents a costs order being made against an applicant for an APVO unless the application was frivolous or vexatious. Drawing on Cunningham v Cunningham, the court noted that a matter is frivolous if it is without substance, groundless or fanciful, and vexatious if it lacks bona fides and tends to cause unnecessary anxiety, trouble and expense (at [4]). Following an independent review of the evidence, the court found nothing to suggest the respondent's application met that threshold (at [6]).
Issue 3: Professional costs
Even setting aside the frivolous or vexatious question, the applicant failed to satisfy the court on the evidence that she had paid, or was liable to pay, any amount that would meet the Act's definition of "professional costs" in connection with the appeal (at [7]).
Orders Made
- The application for costs is refused.
Key Takeaways
- Under s 99A of the Crimes (Domestic and Personal Violence) Act 2007, costs cannot be awarded against an APVO applicant unless their application was "frivolous or vexatious," a high threshold approaching an abuse of process (at [3]-[4]).
- A matter is frivolous if it is without substance, groundless or fanciful; it is vexatious if it lacks bona fides and tends to cause the opponent unnecessary anxiety, trouble and expense, as confirmed by reference to Cunningham v Cunningham (at [4]).
- The District Court conducted an independent review of the evidence and found no basis to conclude the original APVO application crossed the frivolous or vexatious threshold (at [6]).
- A successful appellant seeking costs under the Act must also establish on the evidence that they have paid or are liable for amounts meeting the statutory definition of "professional costs" — a bare assertion is insufficient (at [7]).
- Failing to address a mandatory threshold requirement in written submissions does not automatically entitle a party to a further opportunity to remedy that gap, where the court considers the interests of justice do not require it (at [5]).
Legislation and Cases Referenced
Legislation
- Crimes (Domestice and Personal Violence) Act 2007 s.99A
Cases
- Cunningham v Cunningham [2012] NSWSC 849