GJ v AS (No 4)

Case [2017] ACTCA 7

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

GJ v AS (No 4)

Citation:

[2017] ACTCA 7

Submission Dates:

22 August and 6 October 2015

DecisionDate:

8 March 2017

Before:

Refshauge, Rangiah JJ and Walmsley AJ

Decision:

The appellant pay the respondent’s costs

Catchwords:

PRACTICE AND PROCEDURE – COSTS – Award of costs – power to award costs – purpose of a costs order – ordinary rule – new affidavit evidence sought to be relied upon – leave not grant to rely on new affidavit – discretionary entitlement to costs a matter of practice and procedure – jurisdiction to order costs under the Domestic Violence and Protection Orders Act – appellant to pay the respondent’s costs – r 1721 of the Court Procedure Rules 2006 (ACT) 

Legislation Cited:

Civil Proceedings Act 2011 (Qld), s 15

Civil Procedure Act 2005 (NSW), s 98
Court Procedures Act 2004 (ACT), ss 7, 7(1)(a), 7(1)(b), 134
Domestic Violence and Protections Orders Act 2008 (ACT), ss 97, 100
Federal Court of Australia Act 1976 (Cth), s 43
Judicature Act 1875 (UK), s 5
Judiciary Act 1903 (Cth), s 26
Justice and Community Safety Legislation Amendment Act 2005 (No 4) (ACT), s 1.137
Supreme Court Act 1933 (ACT), ss 23, 37E
Supreme Court Act 1921 (Qld), s 11
Supreme Court Act 1935 (SA), s 40
Supreme Court Act 1986 (Vic), s 24
Supreme Court Act 1935 (WA), s 37
Supreme Court Civil Procedure Act 1932 (Tas), s 12

Court Procedures Rules 2006 (ACT), rr 4(1), 5001, 5050, 5051, 5300, 1720, 1721, 5606, Ch 5, Pt 1, Pt 2.17, Pt 5.3, Pt 5.4, It 6, Table 5051, Dictionary to the Court Procedure Rules

Rules of the Supreme Court 1883 (UK)
Supreme Court Rules (NT), r 63.03

Explanatory Statement for the Domestic Violence and Protection Orders Bill 2008 (ACT), cl 118

Domestic Violence and Protection Orders Regulation 2009 (ACT), s 93

Cases Cited:

Adamson v Ede [2009] NSWCA 379
Ammann v Wegener (1972) 129 CLR 415
Black Uhlans Inc v New South Wales Crime Commission [2002] NSWSC 1060; 12 BPR 98107
Board of Examiners v XY [2006] VSCA 190; 25 VAR 193
Booker v Gill (1899) 15 WN(NSW) 158
BRJ v Council of the New South Wales Bar Association (No 2) [2016] NSWSC 228
Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
Cheney v Spooner (1929) 41 CLR 532
CIC Australia Ltd v Australian Capital Territory Planning and Land Authority (2013) 277 FLR 26
Commonwealth v Crothell Hospital Services (Aust) Ltd (1981) 36 ALR 567
Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) (No 2) [2017] ACTCA 1
Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police (No 2) [2017] ACTSC 10
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Cristian v Botterill [2016] ACTSC 315
Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523

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AGLC
GJ v AS (No 4) [2017] ACTCA 7
Case
[2017] ACTCA 7
Decision Date

CaseChat Overview and Summary

The parties in this matter were GJ (appellant) and AS (respondent). The dispute concerned an appeal regarding an award of costs. The case was heard by Refshauge, Rangiah JJ and Walmsley AJ in the Supreme Court of the Australian Capital Territory.

The primary legal issue before the Court was whether the appellant should be ordered to pay the respondent's costs, particularly in light of the appellant's unsuccessful attempt to rely on new affidavit evidence during the proceedings. The Court was required to consider the purpose of a costs order, the ordinary rule regarding costs, and the discretionary entitlement to costs as a matter of practice and procedure. Furthermore, the Court had to determine its jurisdiction to order costs under the relevant legislation.

The Court reasoned that the ordinary rule is that costs follow the event, and that the discretionary entitlement to costs is a matter of practice and procedure. The Court noted that leave had not been granted to the appellant to rely on new affidavit evidence. Applying these principles, and considering its jurisdiction under the Domestic Violence and Protection Orders Act, the Court determined that the appellant should bear the respondent's costs.

The Court ordered that the appellant pay the respondent’s costs.

Orders

Orders of the court

The appellant pay the respondent’s costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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