Costs and Failed Domestic Violence Applications
MHH v LAN [2016] QMC 1 (4 February 2016)
The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/qld/QMC/2016/1.html?stem=0&synonyms=0&query=domestic%20violence
The Effect of the Applicant’s purported withdrawal
[11] The applicant sought to withdraw her applications during the first mention on 16 December 2015: see rule 50(1) (a) of the 
Domestic Violence 
and Family Protection Rules 2014 (the rules). I have not had the benefit of any submissions on this rule or the effect of it in the circumstances of this case. The ultimate question is whether the court has any say in whether the withdrawal should be accepted in circumstances where the respondents seek the applications be dismissed and an order for costs under section 157.
[12] Under rule 50(1) an applicant can withdraw orally during a proceeding or in writing to the Clerk of the Court. Subsequent sub rules deal with service of written applications to withdraw that have been received by the Clerk of the Court.
[13] Sub rule 50(5) then provides that a court “may decide an application to withdraw without the parties appearing unless [the court] orders otherwise”. Rule 50 as a whole seems to be directed to written applications to withdraw that have been received by the Clerk of the Court prior to a court date. It also contemplates that a court has the power to decide the “application to withdraw” after service on the opposing party whether or not the parties are required to appear. The rule is silent about oral applications to withdraw “during a proceeding in a DFVP court[2]”. By inference at least, I take the view that a court may hear and decide such applications. If that was not the case, it could lead to a manifestly unjust result by preventing an order being made under section 157 where an opposing party, who is entitled under section 146(1) to be represented by a lawyer, has incurred legal costs. Section 157 requires the application to be “dismissed” on various grounds for a costs order. In my view, the rules should be amended to make it abundantly clear[3].
Respondents’ Submissions as to costs
[14] It was submitted that while the parties must as a general rule bear their own costs in proceedings under the Act in accordance with section 157(1), the proceedings in this case were frivolous or vexatious so as to warrant an order for costs under section 157 (2)[4].
Power to award costs
[19] The starting point on such a discussion is that the power of this court to award costs is not “inherent”. It is a creature of statute. While observations by courts on costs in relation to other statutory regimes may be of general assistance “they cannot be allowed to distract attention from the terms of the particular statute in question”. The nature and extent of that power and the circumstances in which that power can be exercised is to be discerned from the terms of the statute that creates the power: see HMG v BRC [2010] QDC 485[7] at [58] citing the Court of Appeal case of Tamawood Limited v Paans [2005] QCA 111; [2005] 2 QdR 101.
[20] Sections 136 & 137 of the Act[8] confer jurisdiction on a Magistrates Court constituted by a magistrate to hear and decide applications under the Act.
[21] One then turns to the provisions of the Act to identify a source of power to award costs. Section 157 has already been noted.
[22] A suite of legislative changes were made with effect from 28 February 2015 by the Justice and Other Legislation Amendment Act 2013 (the amending Act) impacting on the power to award costs and the quantum of those costs under the Act.
[23] It is evident from a number of decided cases under the former Domestic and Family Violence Protection Act 1989 and the scheme under the Act prior to these changes, the source of power to award costs and the quantum of those costs were the subject of dispute: see for example LKF v MRR [2012] QDC 355 Long SC DCJ, HMG v BRC [2010] QDC 485 Dorney QC DCJ, GKE v EUT [2014] QDC 248 McGill SC DCJ and KCD v AAM [2009] QMC 24 Costanzo M.
[24] In short, section 142 as it stood prior to the amending Act[9] provided which Uniform Civil Procedure Rules 1999 (UCPR) applied. They did not include Chapter 17A UCPR entitled “Costs” which, among other things, differentiated between costs on a standard and indemnity basis[10]. However, section 143(a) provided that, subject to any inconsistency with the Act, the Justices Act 1886 applied which included the power to award costs and provisions as to the quantum of those costs: see Division 8 Part 6 Justices Act 1886[11] and Justices
Regulation 2014[12]. The maximum costs this court could have ordered under this regime in favour of the respondents was $1500 for this uncomplicated matter[13].
[25] The amendments to the Act which took effect 28 February 2015 now expressly provide for the source of power to order costs and the quantum of those costs[14]. No reported court decisions on costs decided after those amendments came into effect have been drawn to my attention nor could I find any. I note in SGLB v PAB [2015] QMC 8 where both parties were legally represented, an application under the Act as amended was permanently stayed for an abuse of process. However, the judgment does not reveal an application for costs.
28] The Domestic and Family Violence Protection Rules 2014 (the rules) came into force on
28 February 2015[19]. Part 7 of the rules, entitled “Costs”, provide how costs are to be assessed “if [this court] awards costs against a party under [the Act], section 157(2)”: rule 51. Contrary to LKF v MRR [2012] QDC 355, the statutory scheme now suggests that section 157 provides the source of power to award costs.
[29] The court can fix the amount of those costs or order they be assessed by a costs assessor: rules 52(1) & (2). For assessing costs under rule 52, a lawyer is entitled to charge and be allowed costs in accordance with “the scale of costs set out in schedule 1” (rule 52(3)) although a court can direct that costs be less than the costs set out in schedule 1: item 1(3) Part 1 Schedule 1.
[30] It should be still noted that the Justices Act 1886 continues to generally apply subject to inconsistency. Section 143(a) of the Act[20] was not amended. However, given the changes made by the amending Act, the costs provisions of the Justices Act 1886 no longer apply as they are inconsistent with the costs provisions of the Act.
[31] Submissions were silent on these matters. While inviting further submissions would have been desirable I was also mindful that further costs would be incurred. Accordingly, and given the straight forward application of section 22 of the Act resulting in ending these applications at a very early stage, I decided to proceed to finalise the matter without delay to limit costs[21].
Should a costs order be made under section 157(2)?
Frivolous or vexatious?
[32] This case is somewhat unusual where both applications have terminated at a very early stage on the first court mention. This is in contrast to those cases which have considered “frivolous” or “vexatious” after litigation had run its full course affording the court a better opportunity of evaluating a party’s conduct.
[33] Although under section 146(1) a party may be represented by a lawyer, section 157 of the Act essentially provides for a “no costs” jurisdiction with a limited ability to award costs. These competing considerations have been described in respect of an almost identical costs provision as striking a balance between “not discouraging citizens from approaching the court, while not leaving the door open to manifestly groundless actions”[22].
[34] It should also be noted, as submitted by the duty lawyer, that even if a condition in section 157(2) is satisfied, there is still an overriding discretion whether or not to award costs.
[35] Mudie v Gainriver Pty Ltd (No 2) [2003] QdR 271 (Mudie)[23], which has been applied in a number of subsequent cases in the Planning and Environment Court[24], was cited to support the view that these applications are frivolous or vexatious. A similar costs provision to section 157, section 7.6(1) of the Local Government (Planning and Environment) Act 1990 (now repealed), was considered after protracted litigation.
[38] In applying those meanings relevant to that case, the Court of Appeal awarded costs under section 7.6.(1).
[39] The Shorter Oxford English Dictionary[25] provides other meanings for “frivolous” including relevantly, “manifestly futile”. “Futile” therein means, among other things, “incapable of producing any result; useless, ineffectual, vain”. A similar meaning is found in the Macquarie Dictionary (6th ed.).
[40] The respondents also relied on other court decisions as to the meaning of “vexatious”. In considering “vexatious” in the Vexatious Litigants Act 1981 McMurdo J in Lohe v Bird[2004] QSC 23 at [4] & [5] cited with approval the characterisation of the test expressed by Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491 that it is unnecessary to show an improper motive in instituting proceedings:
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
[46] I find that these applications are vexatious on the ground that, irrespective of the applicant’s motives, they are “untenable” and “utterly hopeless” because of section 22. I also find the applications are frivolous because they are “futile” and having no reasonable grounds of success by naming the children as the aggrieved. This conclusion does not mean, however, that the respondents are entitled to the costs sought.
Residual discretion to award costs?
[47] Given that a condition in section 157(2) is satisfied to open the way for a costs order to be made, the next question is whether the court should exercise its discretion to award costs to the respondents in an amount calculated with regard to the rules. There is no guidance in the Act or rules in this respect.
[48] First, I digress to mention section 157 (2) which provides the power to award costs where a court “hears and decides” to dismiss the application on the grounds referred to. Where a respondent appears, the court may hear and decide the application: section 38(2) (a). Relevantly, the court can only dismiss an application without deciding it where the applicant does not appear: section 38(2) (c) & (3) (a). In this case the applications were heard and decided in accordance with section 157. The applicant and respondents appeared.
[49] The respondents submit that these applications were brought “in wilful disregard of …clearly established law”: Colgate-Palmolive v Cussons Pty Ltd at 233. The established law is section 22 of the Act. Further, the applicant did not indicate a withdrawal until the last moment on the call over day after which time the respondents and their counsel were already in attendance.
[50] I note the applicant was not legally represented when she filed the applications in the court registry although it appears she is not a stranger to this jurisdiction being a respondent in a current domestic violence order. Court staff cannot give legal advice and must accept applications presented to them. I also note that, according to their website, DV Connect cannot provide legal advice.
[51] While it seems the applicant has lawyers acting for her in family law matters, it is not known if they are privately retained or funded by legal aid. Parenting orders were made in the Federal Circuit Court on 19 June 2015. Details of those orders are not known to this court. The matter was to return to that court on 22 January 2016 in relation to alleged contraventions by the applicant.
[52] The respondents submitted that, in order to save costs, they jointly engaged their family law solicitors who were familiar with the dynamics of the family law case. However, it was submitted that as the solicitor with carriage of the matter was “unavailable on the day” counsel from Brisbane who has also been briefed in current contravention proceedings in the Federal Circuit Court was engaged. This course, it was suggested, was an “appropriate option, more so than a local agent”[29].
[53] The legal question was a simple one…the effect of section 22. The duty lawyer, who had a number of people to see on that busy call over day, was able to identify the issue and advise the applicant accordingly. The intricacies of family dynamics and current hostile family law litigation played no part in the section 22 issue. If they were somehow relevant, the court has been largely left in the dark. Briefing counsel was excessive in my view.
[54] At the conclusion of submissions on 16 December 2015, I requested counsel to seek instructions as to whether his solicitors warned the applicant that they would be seeking costs if an appearance was required in court that day. In response, counsel said they had not because of a range of factors including the limited timeframe, the history of conflict and current hostility between the parties, and a “demonstrated lack of responsiveness from [the applicant] in past and recent dealings”[30]. The solicitors were instructed on Sunday 13 December 2015 and they had not received one of the applications until 5.30pm Monday 14th [31].
[55] If the applicant had not responded in recent dealings as suggested, there may well be reasons for that in the context of significant and hostile family law litigation and a current domestic violence order where she is the respondent. The history of conflict and hostility is between the litigants, not the solicitors.
[56] In any event, in my view, although the timeframe was tight, the respondents’ solicitors should have put the applicant on notice that they would agitate section 22 to have the applications dismissed and then seek “indemnity” costs if they had to attend court. The applicant, who, to the knowledge of the respondents’ solicitors[32] was not legally represented in this “no costs” jurisdiction, would then have been in a position to make a decision. She was not given that opportunity. Once advised by the duty lawyer on 16 December 2015, she sought to withdraw forthwith.
[57] This court should exercise its discretion to award costs in an amount that is appropriate having regard to the competing factors outlined. In my view the respondents’ solicitors should be entitled to some costs the quantum of which should be balanced having regard to the failure of the applicant to properly consider commencing these proceedings naming her children as the aggrieved and in the context of other bitter litigation as against her not being warned of a costs claim.