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District Court 19 July 2023

Breen v Rose

[2023] NSWDC 266

Domestic & family violencePublic order & justice offences
APPEALS

Citation: Breen v Rose [2023] NSWDC 266
Court: District Court of NSW
Date: 19 July 2023
Judge(s): Scotting DCJ

Background

The appellant and respondent are neighbours in Lugarno who share access to a property inclinator through a system of easements. They had been in dispute over the inclinator since approximately 2010, with proceedings on foot in the Supreme Court. In May 2020, the appellant alleged the respondent assaulted him near the inclinator and applied for an Apprehended Violence Order (AVO) in the Sutherland Local Court.

The AVO hearing was delayed by the COVID-19 pandemic and eventually proceeded before a magistrate in August 2022. The magistrate dismissed the application, finding the video evidence had been modified by the appellant, and ordered the appellant to pay costs on the basis that the proceedings were frivolous or vexatious from the day after the appellant filed a cross-claim in the Supreme Court proceedings.

The appellant challenged only the costs order, contending the magistrate had no valid basis to find the AVO proceedings frivolous or vexatious within the meaning of the relevant statutory provision.

Legal Issues

  • Whether the magistrate erred in finding the AVO proceedings frivolous or vexatious, thereby enlivening the costs power under s 99A of the Crimes (Domestic and Personal Violence) Act 2007
  • Whether the filing of a Supreme Court cross-claim by the appellant rendered the AVO proceedings vexatious from that date
  • Whether the AVO proceedings were otherwise vexatious due to deficiencies in the appellant's written statement or his attempt to call the respondent as a witness
  • Whether the appellant's merging of the video and audio files independently rendered the proceedings vexatious

Decision

Ground 1: The Supreme Court proceedings as a basis for the costs order

The magistrate tied the costs order to the date the appellant filed his Supreme Court cross-claim, characterising the AVO proceedings from that point as essentially duplicating proceedings that addressed "who would have access to the inclinator and when." Scotting DCJ found this reasoning was flawed (at [34]-[42]). The AVO proceedings concerned a specific alleged assault on 21 May 2020, not access to the inclinator. The respondent was not even a party to the Supreme Court proceedings, and the incident underpinning the AVO was not the subject of any relief sought or evidence led in the Supreme Court (at [37]-[39]).

The District Court further found that the Supreme Court orders of 1 August 2022 were made against the registered proprietor, not against the respondent directly, and did not address the alleged assault or grant equivalent relief to that sought in the AVO (at [41]). Accordingly, the magistrate took into account an irrelevant consideration by treating the Supreme Court proceedings as relevant to whether the AVO proceedings were vexatious (at [42]).

Ground 2: Deficiencies in the appellant's evidence and the attempt to call the respondent

The respondent contended the proceedings were "doomed to fail" given the admitted deficiencies in the appellant's written statement and his unsuccessful attempt to call the respondent as a witness. The District Court rejected this contention. The magistrate made her determination on admissible evidence only (at [48]), and there was objective evidence of a physical confrontation captured on video footage (at [49]). The proceedings were not hopeless, and the magistrate's conclusion was that the evidence fell short of warranting an order, not that the case was unarguable (at [51]).

The attempt to call the respondent as a witness may have been ill-advised, but was not shown to be made in bad faith or otherwise relevantly oppressive (at [47]).

Ground 3: Merging of the video and audio files

The respondent argued the appellant's modification of the evidence independently justified the costs order. The District Court found that while the appellant's conduct in merging the files appropriately and adversely affected his credit (at [54]), it did not undermine the underlying objective evidence. The magistrate correctly analysed the video and audio files separately (at [55]). Crucially, the magistrate herself did not base her vexatious finding on the merging of the files, and she was best placed to make that assessment (at [58]).

Orders Made

  • Appeal allowed in part
  • The costs order made by the magistrate on 17 August 2022 is set aside

Key Takeaways

  • The District Court held that the filing of related Supreme Court proceedings does not, without more, render a concurrent AVO application vexatious, particularly where the Supreme Court proceedings involve different parties and address a different subject matter (at [36]-[42]).

  • Under s 99A of the Crimes (Domestic and Personal Violence) Act 2007, the words "frivolous or vexatious" import a high degree of inappropriateness approaching abuse of process: a matter is frivolous if groundless or without substance, and vexatious if it lacks bona fides, is hopeless, and causes unnecessary anxiety, trouble, and expense to the opponent (at [25]).

  • A finding that proceedings are vexatious requires a magistrate to consider only matters that are genuinely relevant to whether the AVO proceedings themselves lacked substance; taking into account irrelevant considerations in making a costs order constitutes error on appeal (at [42]).

  • An appellant's manipulation of evidence by merging separate audio and video files may properly damage credit, but does not automatically render proceedings vexatious where objective evidence of the underlying incident remains intact and is properly assessed on its own terms (at [55]-[57]).

  • Where a magistrate dismissed an AVO application on the basis that evidence fell short of the required standard, rather than finding the case hopeless, that distinction is material to any subsequent costs application: a case that is ultimately unsuccessful is not necessarily frivolous or vexatious (at [51]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001
- Crimes (Domestic and Personal Violence) Act 2007

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Cunningham v Cunningham [2021] NSWSC 849
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298