Gibson v Canniffe

The respondents, Canniffe, brought an application against Gibson, the appellant, for an order that he cease and desist from harassing them. This was pursuant to the Protection from Harassment Act 2009 (Vic). Gibson applied to have the complaint dismissed, and his application was summarily dealt with by a magistrate who dismissed it and refused Gibson’s application for costs. Gibson appealed the magistrate’s order on the basis that the magistrate erred in law by summarily dismissing his application to have the complaint dismissed, and that the magistrate should have awarded him costs. The respondents cross-appealed, arguing that Gibson should not have been awarded any costs.

The court had to determine whether the magistrate erred in summarily dismissing Gibson’s application, and whether the magistrate should have awarded Gibson costs. The court found that the magistrate’s dismissal of Gibson’s application was incorrect as it was not appropriate to summarily dismiss an application to have a complaint dismissed. The court further held that the magistrate should have awarded Gibson costs, as the respondents’ application for an order was an abuse of process. The court then had to consider the appropriate costs to award Gibson. The court found that the appropriate costs were those that would be awarded for a successful application to have a complaint dismissed, and remitted the matter to the Magistrates Court to determine the amount of costs to award Gibson.

The appeal was allowed, and the magistrate’s order of dismissal was set aside insofar as it included the refusal of costs. The complaint was remitted to the Magistrates Court for final disposition, including further hearing and determination, in accordance with these reasons, of the question whether costs should be awarded to Gibson and, if so, in what amount. The respondents’ cross-appeal was dismissed.