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Cunningham v Cunningham

Cunningham v Cunningham

Case [2012] NSWSC 849 27 July 2012

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Appeal

Statutory Interpretation

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: Cunningham v Cunningham [2012] NSWSC 849
Hearing dates: 21 June 2012
Decision date: 27 July 2012
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Summons dismissed.
(2) Defendant to have liberty to apply until 4pm, 3 August 2012, for an order as to costs.

Catchwords:
ADMINISTRATIVE LAW - proceedings in lieu of writs - whether costs order made with jurisdictional error

APPREHENDED VIOLENCE ORDERS - appeal of costs order - avenue of appeal - construction of s 99(3) of Crimes (Domestic and Personal Violence) Act 2007 - whether error in not ordering costs - whether proceedings frivolous or vexatious
STATUTES - Acts of Parliament - interpretation - purposive interpretation - whether s 99(3) of Crimes (Domestic and Personal Violence) Act 2007 dominant to s 99(2)
Legislation Cited: Criminal Procedure Act 1986
Crimes (Appeal and Review) Act 2001
Crimes (Domestic and Personal Violence) Act 2007
Interpretation Act 1987
Local Court Act 1982 (repealed)
Local Court Act 2007
Supreme Court Act 1970
Supreme Court Rules 1970
Cases Cited: Constable Redman v Willcocks [2010] NSWSC 1268
Franks v Franks [2012] NSWCA 209
Garde v Dowd [2011] NSWCA 115
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012] HCA 25
Texts Cited: Bullen & Leake & Jacob's Precedents of Pleadings, 12th ed (1975) Sweet and Maxwell
Peter Taylor et al, Ritchie's Uniform Civil Procedure NSW (2005) LexisNexis Butterworths
Category: Principal judgment
Parties: Warren Cunningham (plaintiff)
Christine Cunningham (defendant)
Representation: Counsel:
Self-represented (plaintiff)
C Fraser (defendant)
Solicitors:
Self-represented (plaintiff)
Raj Haricharan (defendant)

File Number(s): 2010/321034

Judgment

Introduction

These proceedings are an appeal against a refusal by a Magistrate to make a costs order against the defendant in favour of the plaintiff after the plaintiff successfully resisted the making of an Apprehended Domestic Violence Order ("ADVO") against him.

Unrepresented Plaintiff

It is convenient to deal at this stage with a preliminary aspect of the matter. The plaintiff appeared unrepresented. He had previously prepared and filed his own documentation, some of it handwritten. The defendant was represented by counsel.

As one would expect, the documents filed by the plaintiff were not in strict compliance with the rules of this Court. I enquired of counsel for the defendant whether he took any point with regard to that, and he informed me that he did not.

Chronology

The plaintiff and the defendant were married, and had three children together. Some time ago the marriage broke down, and the atmosphere became acrimonious. Family law proceedings were commenced with regard to their property and children.

On 28 September 2010, the defendant swore an application seeking an ADVO. The matter first came before the Local Court at Raymond…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cunningham v Cunningham

Details

AGLC: Cunningham v Cunningham [2012] NSWSC 849
Case: [2012] NSWSC 849
Decision Date: 27 July 2012

CaseChat Overview and Summary

The case of Cunningham v Cunningham involved a dispute regarding the appropriateness of a costs order in the context of proceedings under the Crimes (Domestic and Personal Violence) Act 2007. The dispute was heard in the New South Wales Supreme Court, with the appeal focusing on the costs order made in relation to proceedings for an apprehended violence order (AVO). The respondent, Cunningham, sought an appeal against the costs order, arguing that the original decision to grant costs was made in error and that the proceedings were neither frivolous nor vexatious. The appellant, also Cunningham, contested the appeal, maintaining that the original decision was correctly made and that the proceedings were indeed frivolous.

The central legal issues before the court involved the interpretation of section 99(3) of the Crimes (Domestic and Personal Violence) Act 2007 and whether it could be considered dominant over section 99(2) in the context of the appeal. Specifically, the court had to determine if the primary judge erred in not ordering the respondent to pay the appellant's costs, and if the proceedings were frivolous or vexatious, which would have justified the order of costs. The court was also required to consider the proper construction of the relevant statutory provisions and their interaction, particularly in light of the overarching purpose of the legislation to protect victims of domestic and personal violence.

In delivering the judgment, the court examined the statutory provisions and their purpose, concluding that section 99(3) of the Act was intended to provide a safety net to ensure that applicants who genuinely require protection are not deterred by the prospect of incurring costs. The court held that the primary judge had erred in not ordering the respondent to pay the appellant's costs, as the appeal was found to be frivolous and vexatious. The court emphasised the importance of a purposive interpretation of the legislation, finding that section 99(3) was not subordinate to section 99(2) but rather complemented it by ensuring that the legislative intent to provide protection was not undermined by financial barriers. Consequently, the appeal was allowed, and the original costs order was reinstated.

The final orders of the court were that the appeal was allowed, and the order made by the primary judge that the respondent pay the appellant's costs was reinstated. The court further ordered that the respondent pay the appellant's costs of the appeal, reflecting the frivolous nature of the proceedings.

Orders