Ferris v Atherton (No 2)

[2014] NSWDC 273

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ferris v Atherton (No 2) [2014] NSWDC 273
Hearing dates:	27 May 2014
Decision date:	27 May 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	(1) Appeal allowed. (2) The respondent’s application for costs is dismissed. (3) Each party is to pay their own costs of the appeal.
Catchwords:	CRIMINAL LAW - application for apprehended personal violence order – question of test to be applied - not frivolous or vexatious - not without substance - respondent’s application dismissed pursuant to s99(3) of the Crimes (Domestic and Personal Violence) Act 2007 – weighing of various discretions and considerations - if application found to be frivolous or vexatious, applicant to pay one third of the respondent’s costs
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007, ss 99(2), 99(3) Criminal Procedure Act 1986, s 213(1)
Cases Cited:	Cunningham v Cunningham [2012] NSWSC 849 Garde v Dowd [2011] NSWCA115 Latoudis v Casey (1990) 170 CLR 534 Mahmoud v Sutherland [2012] NSWCA 306 Mahmoud v Sutherland [2013] NSWDC 140 Ohn v Walton (1995) 36 NSWLR 77
Category:	Costs
Parties:	Peter James Ferris (applicant) Jed Atherton (respondent)
Representation:	Counsel: S Brennan (applicant) B Rosic (respondent)
File Number(s):	2013/00151082
Decision under appeal	Court or tribunal: Local Court, Downing Centre Date of Decision: 28 October 2013 Before: Stapleton LCM File Number(s): 2013/00151082

Judgment

1. I now turn to the question of the costs of the appeal which I have just dealt with. Mr Brennan is also appealing against her Honour’s order that his client pay Mr Atherton his costs as agreed or assessed.

2. There is a preliminary issue about the test which should be applied. In my judgment in Mahmoud v Sutherland [2013] NSWDC 140, I referred to the decision of the Court of Appeal in Mahmoud v Sutherland [2012] NSWCA 306. The reason I referred to the Court of Appeal’s decision was that the Court of Appeal in that case, which involved an application for a apprehended personal violence order, determined the question of costs in accordance with s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007. The test applied by their Honours in that case would require me not to award costs against Mr Ferris “unless satisfied that the application was frivolous or vexatious”.

3. For reasons which I set out in my judgment in Mahmoud v Sutherland, I respectfully suggested that the Court of Appeal had overlooked the significance of the word “domestic” in s 99(3) of the Crimes (Domestic and Personal Violence) Act. But, in accordance with precedent, I am obliged to follow the Court of Appeal’s decision.

4. Mr Rosic urges me to conclude that the application by Mr Ferris was both frivolous and vexatious. He argues that it was vexatious because it was motivated by other litigation not directly connected with these proceedings. The other litigation concerned an industrial issue. Mr Brennan argues that such an alleged motive was never aired nor had his client had any…