Cunningham v Cunningham

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.