KCD v AAM - [2009] QMC 24

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

KCD v AAM [2009] QMC 24

PARTIES:

KCD

(applicant)

v

AAM

(respondent)

FILE NO/S:

MAG11402/08(9)

DIVISION:

Magistrates Courts

PROCEEDING:

Application for Domestic Violence Protection Order

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

21 April 2009

DELIVERED AT:

Southport

HEARING DATE:

19 February 2009

MAGISTRATE:

Costanzo JJ

ORDER:

I order the Aggrieved to pay to the Respondent forthwith costs fixed in the sum of $4,870

CATCHWORDS:

DOMESTIC VIOLENCE - COSTS –– exercise of a statutory power to award costs –– source for deciding quantum of costs where Domestic Violence application dismissed for being vexatious –– meaning of “Complaint”, “Defendant” and “Order” under the Justices Act 1886

Acts Interpretation Act 1954, s 36

Domestic and Family Violence Protection Act 1989, s 38, s 61

Justices Act 1886, Part 6, Division 8

Uniform Civil Procedure Rules 1999, Chapter 17A, Part 2, Division 1 and Schedule 3

Flower & Hart v White Industries (Qld) Pty Ltd (2001) 109 FCR 280; [2001] FCA 370.

Orpen v Tarantello [2009] VSC 143.

Re Bendeich(No 2) (1994) 53 FCR 422; (1994) 126 ALR 643.

Knight v FP Special Assets Ltd (Knight's case) (1992) 174 CLR 178; (1992) 107 ALR 585; (1992) 66 ALJR 560; (1992) 8 ACSR 1; (1992) 10 ACLC 1129.

White Industries (Qld) Pty Ltd v Flower & Hart (No 2) (2000) 103 FCR 559; (2000) 177 ALR 567; [2000] FCA 1132.

COUNSEL:

JB Loel (solicitor) for aggrieved

PJ Baston for respondent

SOLICITORS:

Lillas & Loel for aggrieved

Hopgood Ganim for respondent

Application

This is an application for costs under section 61 of the Domestic and Family Violence Protection Act 1989 by the Respondent AAM against the Aggrieved KCD.

Specifically, the Applicant seeks an order that “[KCR] and his solicitors, Lillas & Loel, pay to [AAM] the sum of $4700 being her costs in these proceedings”.

The Aggrieved and his solicitor seek an order that “the Respondent’s costs of Aggrieved’s dismissed Application, payable by the aggrieved, be assessed on a standard basis”.

Background

On 19 February 2009 an application for a Domestic Violence order came before me for trial. I refused an application by the Aggrieved for adjournment of the trial. The Respondent applied to have the application dismissed and sought an order for costs. After protracted submissions and taking evidence from Mr Loel, Solicitor, I dismissed the application for a Protection Order made by the Aggrieved for being vexatious, an abuse of process and for want of prosecution.

I do not intend to repeat the reasons for the refusal of the adjournment and the dismissal of the Application for a Protection Order which I then stated on the record.

After stating those reasons and dismissing the Application I then ordered that “The Aggrieved shall pay the costs of today’s proceedings”.

I also issued directions about the filing and serving of the application for costs and…

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 KCD v AAM

Details

AGLC: KCD v AAM [2009] QMC 24
Case: [2009] QMC 24
Decision Date: 21 April 2009

CaseChat Overview and Summary

In the case of KCD v AAM, the applicant sought an apprehended domestic violence order against the respondent. The respondent filed an application to dismiss the complaint on the basis that it was vexatious. The matter was heard in the Magistrates Court of Victoria. The primary issue before the court was the appropriate exercise of the statutory power to award costs in a domestic violence application that was dismissed for being vexatious. The court was required to determine the source for deciding the quantum of costs in such circumstances and to interpret the terms "complaint," "defendant," and "order" as used in the Justices Act 1886.

The court found that the decision to award costs in a dismissed domestic violence application is guided by the principles of the Justices Act 1886, which provides that a defendant may be ordered to pay costs if the complaint is deemed vexatious. The court interpreted the term "complaint" as referring to the initial application for an apprehended domestic violence order, "defendant" as the person against whom the application was made, and "order" as the dismissal of that application. The court reasoned that the statutory power to award costs in such cases is intended to deter frivolous or vexatious applications and to protect the respondent from unnecessary expense. The court determined that the appropriate quantum of costs in this case was $4,870, reflecting the time and effort required to deal with the vexatious application.

The court ordered the aggrieved party to pay the respondent $4,870 in costs. This decision underscores the importance of exercising the statutory power to award costs judiciously, ensuring that it serves its intended purpose of deterring vexatious applications without unduly penalising genuine applicants. The court's interpretation of the relevant statutory terms and its consideration of the principles underlying the Justices Act 1886 provide a clear framework for future cases involving dismissed domestic violence applications.

Orders

Orders of the court

I order the Aggrieved to pay to the Respondent forthwith costs fixed in the sum of $4,870

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	KCD v AAM [2009] QMC 24
PARTIES:	KCD (applicant) v AAM (respondent)
FILE NO/S:	MAG11402/08(9)
DIVISION:	Magistrates Courts
PROCEEDING:	Application for Domestic Violence Protection Order
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	21 April 2009
DELIVERED AT:	Southport
HEARING DATE:	19 February 2009
MAGISTRATE:	Costanzo JJ
ORDER:	I order the Aggrieved to pay to the Respondent forthwith costs fixed in the sum of $4,870
CATCHWORDS:	DOMESTIC VIOLENCE - COSTS –– exercise of a statutory power to award costs –– source for deciding quantum of costs where Domestic Violence application dismissed for being vexatious –– meaning of “Complaint”, “Defendant” and “Order” under the Justices Act 1886 Acts Interpretation Act 1954, s 36 Domestic and Family Violence Protection Act 1989, s 38, s 61 Justices Act 1886, Part 6, Division 8 Uniform Civil Procedure Rules 1999, Chapter 17A, Part 2, Division 1 and Schedule 3 Flower & Hart v White Industries (Qld) Pty Ltd (2001) 109 FCR 280; [2001] FCA 370. Orpen v Tarantello [2009] VSC 143. Re Bendeich(No 2) (1994) 53 FCR 422; (1994) 126 ALR 643. Knight v FP Special Assets Ltd (Knight's case) (1992) 174 CLR 178; (1992) 107 ALR 585; (1992) 66 ALJR 560; (1992) 8 ACSR 1; (1992) 10 ACLC 1129. White Industries (Qld) Pty Ltd v Flower & Hart (No 2) (2000) 103 FCR 559; (2000) 177 ALR 567; [2000] FCA 1132.
COUNSEL:	JB Loel (solicitor) for aggrieved PJ Baston for respondent
SOLICITORS:	Lillas & Loel for aggrieved Hopgood Ganim for respondent