LE v SX (No 3)
[2016] ACTSC 243
•26 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | LE v SX (No 3) |
Citation: | [2016] ACTSC 243 |
Hearing Date: | Determined on the papers |
DecisionDate: | 26 August 2016 |
Before: | Mossop AsJ |
Decision: | The application in proceeding dated 29 April 2016 is dismissed with costs. |
Catchwords: | PRACTICE AND PROCEDURE – Application to set aside previously made orders – Where orders not yet entered – Orders related to decision to refuse extension of time in which to bring an appeal from Magistrates Court – Whether applicant denied natural justice due to hearing deficit – Whether leave should have been given to applicant to make written submissions – Procedurally fair hearing does not require party to be given an opportunity to make written submissions – Whether applicant prevented from completing oral submissions – No denial of procedural fairness – Application dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Domestic Violence and Protection Orders Act 2008 (ACT) |
Cases Cited: | LE v SX [2015] ACTSC 79 LE v SX [No 2] [2016] ACTSC 107 N v N (No 2) [2015] ACTSC 48 |
Parties: | LE (Applicant) SX (Respondent) |
Representation: | Counsel Mr G Stretton SC (Applicant) Mr R Routh (Respondent) |
| Solicitors Self-represented (Applicant) Farrar Gesini Dunn (Respondent) | |
File Number: | SCA 1 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 27 May 2014 Case Title: LE v SX Court File Number: DV 157 of 2014 |
MOSSOP AsJ:
Introduction
This is an application to set aside orders that I made on 5 June 2015. Those orders have not yet been entered. The application in proceedings seeking to have the orders set aside is dated 29 April 2016. In order to understand the application it is necessary to set out some of the unusual procedural history of the matter.
The proceedings in this Court involved an application for an extension of time in which to bring an appeal from the Magistrates Court. The application was heard over three days in March 2015 and I published my decision on 11 May 2015: LE v SX [2015] ACTSC 79. The orders that I made were that the application be dismissed and that there be no order as to costs, but I permitted a party seeking a different costs order to do so. The respondent to the application did seek an alternative order and the proceedings were listed for the determination of the question of costs on 5 June 2015. I will return later in these reasons to what occurred on that day. The order that I made was that instead of there being no order as to costs, the applicant was ordered to pay the respondent’s costs of the application.
Consistently with that order the respondent filed a bill of costs on 23 October 2015. A costs assessment took place and a certificate of costs assessment was filed on the 16February 2016 certifying that the Deputy Registrar had allowed costs of $42,073.34. On 22 February 2016 the applicant filed an application in proceeding seeking to have the costs assessment set aside.
Probably as a result of the filing of this application, the Deputy Registrar referred the matter to me and listed the matter in my call-over on 22 April 2016. At the call-over senior counsel for the applicant indicated that the applicant intended to apply to vacate the orders made by the Court on 5 June 2015. I made directions in relation to the filing of such an application and written submissions in relation to such an application by both parties.
On 29 April 2016 the applicant filed an application in proceeding seeking that the orders that I made on 5 June 2015 be set aside. That application was supported by the affidavit of the applicant affirmed 29 April 2016. That affidavit provided as follows:
1. I am the Applicant in these proceedings
2. I suffer from a hearing deficit which makes it very difficult for me to hear and understand what is said in court proceedings.
3. It is because of my hearing difficulty that in the proceedings before Associate Justice Mossop on 5 June 2015 I asked whether it was possible for me to make written submissions, a request that was denied.
4. Whilst I was making my submissions concerning costs, I was cut off by Associate Justice Mossop and didn’t have the opportunity to finish what I wished to say.
5. A transcript of the proceedings of 5 June 2015 is annexed and marked “A”;
6. The costs ordered against me have been allowed in the sum of $42,073.34.
7. My income comprises a pension for a temporary disability of $500 per week and I have no capacity to pay costs of $42,073.34.
8. As a result of enquiries made on my behalf of Domestic Violence Victoria, Women’s Legal Service and Rosie Batty I am informed and verily believe that there are no known cases where costs have been awarded against an unsuccessful applicant for a domestic violence order where the application was not vexatious.
For reasons which remain mysterious, the application was referred to the duty judge (Burns J) who listed the matter for hearing on 11 May 2016. His Honour heard argument in relation to the application and reserved his decision. In a written decision published on 30 May 2016, his Honour decided that it was appropriate that the matter be determined by me: LE v SX [No 2] [2016] ACTSC 107. His Honour recorded that it was not apparent to him why the matter had been listed before him rather than, as my directions contemplated, before me: [6].
The parties then agreed that I should deal with the application on the basis of the written submissions that had been filed by the parties as well as the transcript of the proceedings before Burns J which recorded their oral submissions. On 4 August 2016 the applicant provided the transcript of the proceedings before Burns J. The respondent provided a folder containing my reasons for decision in the substantive application, various transcripts and orders. I will treat that as an exhibit and mark it Exhibit 1 on the application.
Principles to be applied
The written and oral submissions of the parties did not address the principles to be applied in determining whether or not to vacate orders that had been made by the Court but not entered. That was an issue which I considered in N v N (No 2) [2015] ACTSC 48. At [10]-[14] I outlined the principles to be applied to an application to vacate orders prior to their entry under the Court Procedures Rules 2006 (ACT):
[10]In Autodesk v Dyason (No 2)(1993) 176 CLR 300, the High Court divided on whether or not to permit an unsuccessful respondent to vacate the judgment on the ground that, without fault on its part, it had no opportunity to be heard on the issues that were decided in the judgment. The particular issues in that case were matters of some intricacy relating to the operation of the Copyright Act 1968 (Cth) in relation to a computer program. The court divided not only on the circumstances in which leave might be given to reopen a judgment which had not yet been entered, but also on the application of those principles in the particular circumstances of the case. The nature of the division between the majority and minority judges was described in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd (No 2)(2013) 87 ALJR 1159 at [13]–[15] as follows:
13.All members of the Court in Autodesk (No 2)] accepted that this Court may recall orders which it has made disposing of an appeal if those orders were made against a party who, without fault on the part of that person, has not had an opportunity to be heard as to why those orders should not be made. More particularly, it was accepted that this Court may recall its orders if they were made on a ground which the person against whom the orders were made had no opportunity to argue.
…
15.This Court divided in opinion in Autodesk (No 2) about whether the jurisdiction to recall this Court’s orders extended beyond cases where a party was not given an opportunity to be heard on an issue held to be determinative. Mason CJ took the broadest view of the power to reopen and, with Deane J, dissented as to the outcome in the particular case. Mason CJ said that the exercise of the jurisdiction to reopen should not be confined “in a way that would inhibit [the Court’s] capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment“. Nonetheless, Mason CJ emphasised that the jurisdiction to reopen “is not to be exercised for the purpose of re-agitating arguments already considered by the Court“. Rather, Mason CJ concluded that “[w]hat must emerge … is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing“. (footnotes omitted)
[11]The broader view of Mason CJ appears to have been adopted in relation to the criteria governing the exercise by a superior court of its power to reopen its own decisions. In Elliott v R (2007) 234 CLR 38 at [31]–[32] the reasons of the court provide:
31.It is well settled that a superior court of record such as the Supreme Court has a power to “reopen” a proceeding until judgment in the case in question has been drawn up, passed and entered. But by what criteria is that authority to be exercised?
32.It is here that guidance is provided by remarks of Mason CJ in Autodesk Inc v Dyason (No 2). His Honour gave examples from jurisdictions in this country (including the New South Wales Court of Appeal) and the United Kingdom where the power to reopen had been exercised on grounds not limited to denial of a fair hearing, but went on:
What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.
The circumstance in Autodesk that Mason CJ dissented as to the outcome of the reopening application which was before this Court does not detract from his remarks. (footnotes omitted)
[12]The remarks in Elliott are equally applicable to reopening the final decision of this court prior to the entry of orders.
[13]The willingness of a court to reopen its decision will be influenced by the circumstances in which the decision is given and hence how any reopening will affect the public interest in the finality of litigation. In Nominal Defendant v Livaja [2011] NSWCA 121 at [23] Basten JA, delivering the judgment of the court, said:
23.Further, it is helpful to distinguish between a case such as Autodesk, where the High Court believed it had delivered a final judgment, a case such as Brooker v Friend (No 2) [2008] NSWCA 129, where this Court delivered its reasons, with proposed final orders, but sought submissions in respect of the appropriate form of the orders, and a case such as the present, where a trial judge, without the benefit of transcript, is delivering an oral judgment from handwritten notes. It is also desirable to distinguish between cases where, perhaps because of the delivery of formal written reasons, the application to vary the judgment is delayed, as compared with the present case, where it was made immediately the calculation had been expressed. The reason why such distinctions are important is that the public interest in the finality of litigation carries far less weight in some circumstances than in others. Where an apparent error can readily be addressed without the need to resort to expensive and time-consuming appeal proceedings, that course should be permitted and encouraged.
[14] In Autodesk, Brennan J, one of the majority judges, made (at 308) further observations as to what was involved in the concept of an opportunity to be heard.
It is desirable to add in the context of the present case a further observation about the opportunity to be heard. A court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue (Pantorno v R(1989) 166 CLR 466). However, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends (University of Wollongong v Metwally (No.2)(1985) 59 ALJR 481, at p 483; 60 ALR68, at p 71). Of course, the precise ground which a court or judge assigns for a decision will frequently be formulated in terms different from the terms of a submission by counsel but, provided the ground has arisen in one of the ways mentioned, the court or judge may properly proceed to judgment without requiring the case to be relisted for further argument and without inviting supplementary submissions to be made.
Applicant’s submissions
The basis for the application to set aside the orders are set out in the applicant’s submissions as follows:
1.1She suffers from a hearing deficit making it difficult for her to understand and respond to matters arising releasing in court proceedings.
1.2. She requested the opportunity to make written submissions but this was refused.
1.3.She was cut off while making her submissions and not given the opportunity to complete her submissions.
In support of those contentions the applicant relied upon an address by Kyrou J of the Victorian Supreme Court, ‘Attributes of a good judge’ (Paper presented at the 14th Greek/Australian International Legal and Medical Conference, Cape Sounion, Greece, 4 June 2013):
... Natural Justice requires that the parties be given a fair opportunity to present their cases before a decision is made. If a judge acts impetuously by expressing fixed views prematurely or by cutting off a party before its case is completed, an appellate court might order a new trial.
He referred also to the Federal Circuit Court interpreter and translator policy, which at paragraph 5 under the heading “Deaf, Hearing Impaired and/or Speech Impaired Clients” said:
5.1 The provision of interpreter services for this group of clients is specifically authorised by these guidelines.
5.2 Arrangements should be made for AUSLAN interpreters or CART (Communication Access Real-time Translation) service providers to assist clients at any event outlined in paragraph 2, who are deaf, hearing impaired and/or speech impaired.
5.3 The TTY service should be used for all telephone communication for those clients who are deaf, hearing impaired and/or speech impaired.
5.4 At least one courtroom at each registry should have a hearing loop installed, and arrangements should be made to assist clients by using this facility wherever possible.
Next he referred to a position paper prepared by the Victims of Crime Commissioner for the ACT published in March 2015 which provided:
The basis upon which costs can be awarded needs to be explicitly set out in the legislation, and should contain a stringent provision that the court must not award costs unless satisfied application was frivolous or vexatious.
…
Currently in the ACT, applicants for domestic violence orders are entitled to withdraw their application at any time. Applicants may decide to withdraw their application for reasons unconnected to the strength of the evidence. Such applications may be countered with an application for costs against them, lodged by the respondent or their legal representatives, which could potentially result in costs being awarded against applicants. A court may award costs if it is satisfied that the application for the domestic violence order is frivolous, vexatious or has not been made honestly. The ambiguity of the legislation means costs can be ordered in other circumstances. The basis upon which costs can be awarded needs to be explicitly set out in the legislation, and should contain a stringent provision that the court must not award costs unless satisfied the application was frivolous or vexatious.
(Emphasis in original.)
(Footnotes omitted.)
Events on 5 June 2015
In order to understand how these principles may be applied in the present case it is necessary to describe what occurred on 5 June 2015 when the matter was listed for argument on costs. The matter was listed for hearing at 9:15 am. The plaintiff did not appear. The solicitor for the respondent indicated that she was instructed to seek costs and that costs ordinarily follow the event. She referred to the making of a costs order in relation to the matter when the applicant had on 2 February 2015 sought an adjournment of her application. The proceedings were adjourned until 9:31 am when the applicant was called again. There was no appearance for the applicant. The solicitor for the respondent indicated that she did not wish to make any additional submissions and I gave reasons for my decision as follows:
On 11 May 2015, I published my reasons for refusing the applicant an extension of time in which to lodge an appeal. That application was an application filed 2 January 2015. Ms Foster, who appears for the successful respondent in that application has now sought costs. She has submitted that costs should follow the event. The matter was relisted at Ms Foster’s request pursuant to the liberty granted in order 3 that I made on 11 May 2015. The applicant was copied into the email requesting the matter to be relisted and copied into the email sent by my associate indicating that the matter was listed today. There has been no appearance by the applicant. She was called outside the court at 9.15 and 9.31. There was no appearance.
Section 107 of the Domestic Violence and Protection Orders Act provides a limited capacity for the Magistrates Court to make an award of costs in circumstances which are there set out. Rule 93 of the Domestic Violence and Protection Orders Regulation provides a general rule that each party to a proceeding on an application must bear the party’s own costs. Subsection (2) provides:
However, the Magistrates Court may order the payment of costs in proceedings and, if it does, the court must fix an amount of the costs.
The costs then:
... are recoverable as if they were awarded by the Magistrates Court in a civil proceeding.
Both the provisions of s 107 of the Act and r 93 of the Regulation are drafted in terms which make it clear that they apply to the Magistrates Court. In my view, having regard to the drafting of those terms, they do not apply to an application for an extension of time or to an appeal proper in the Supreme Court.
That limitation may or may not reflect a considered policy on the part of the legislature, but nevertheless it is the state of the law. In the absence of provisions which alter what would be the general rule, while costs remain in the discretion of the Court, there is a strong compensatory theme that runs through the principles that are applicable in relation to costs, most clearly exemplified in Latoudis v Casey (1990) 170 CLR 534. While authorities such as Oshlack v Richmond River Shire Council (1998) 193 CLR 72 recognise that the costs discretion is broad enough so as to [confer] in appropriate circumstances a discretionary decision not to award costs against an unsuccessful party, the particular circumstances that warrant the exercise of the discretion must be demonstrated.
In the present case, therefore, the prima facie position is that costs should follow the event. Had [LE] been here she might have pointed to issues relating to her capacity to pay any order in relation to costs. She may have pointed to the significance for the protection in particular of women of the availability of the regime under the Act which allows domestic violence orders to be issued. She may have pointed to the significance of the outcome of [the] Magistrates Court proceedings in the way in which the Federal Circuit Court judge dealt with the family law proceedings and she may have pointed to the fact that at least in one respect I was of the view that there was an arguable ground of appeal in relation to a possible factual error by the magistrate below.
In my view, none of those mattes either considered separately or cumulatively would warrant a departure, in this case, from a compensatory order, and as a consequence, in my view, that the appropriate order gives effect to the principle that costs should follow the event. [A]s a consequence, the orders that I will make are:
1.Orders 2 and 3 made on 11 May 2015 are discharged and substituted with a new order 2 which is that the applicant is to pay the respondent’s costs of the application.
The proceedings were then adjourned at 9:40 am.
At 11:26 am I returned to the matter because at that stage the applicant had appeared. She had arrived at approximately 9:45 am and entered the building as the solicitor for the respondent was leaving. She said that she had got here at 9:45 am because she had made a mistake about the time at which the matter was listed for hearing. I indicated to her that because the orders had not been formally entered in the Registry, it was possible for me to reopen the orders so as to permit the making of a different order. I indicated that there were two courses that could be adopted, I could hear the submissions that she wished to make in the absence of the other side and then consider whether or not it was necessary to adjourn the matter until the solicitor for the respondent returned to court to put any arguments that she wished. The other course was to adjourn the proceedings and see if the solicitor for the respondent could come back to participate in the hearing. I noted that the latter course would potentially increase the applicant’s exposure to costs, but that “the more orthodox approach would be to do nothing until the other side is here and able to make submissions”. The applicant asked whether there was “any possibility that I can make written submissions”. I said:
I’m not going to adopt that course at this stage, the reason for that is that if there is a possibility of dealing with the matter today then I will adopt that approach because I think it’s important that – (a) it is important that the proceeding be finalised; then (b) I think it’s a relatively discrete issue and adopting the course of written submissions will inevitably drag the matter out and lead to significant more costs being incurred.
I reiterated the two alternative courses that were available to me. The applicant indicated that she understood those alternatives. I indicated that the solicitor for the respondent made submissions which were very short, effectively that the usual rule is that costs follow the event. The applicant then made submissions after which I gave reasons for my decision to not adjourn the proceedings so as to require the other side to appear or vary the orders that I had made earlier that day. Because of the submission that was made that I had cut of the plaintiff while she was making her submissions it is necessary to set out the transcript of this portion of the proceedings:
HIS HONOUR: I can tell you that Ms Foster’s submissions were very short. She simply said the usual rule is that costs follow the event, that is, the winner recovers their costs. Those are the only submissions that she made effectively.
[LE]: Okay. I don’t think that there should be costs because I don’t think the application was vexatious and because material came out of the subpoenas which was not available before. That material has been used in the Family Court appeal which has been expedited for two weeks’ time. It’s also led to – like there’s a legal case against my solicitor that gave evidence.
HIS HONOUR: Okay. Would there be any other submissions that you’d wish to make in relation to costs?
[LE]: Somebody else can help me if I’m allowed to do written submissions but I can’t say a lot.
HIS HONOUR: Okay.
[LE]: I said at the beginning of when I came to court that it would be very difficult for me to pay any costs.
HIS HONOUR: Sure.
[LE]: The other side has spent $200,000 in the other court on court cases. Only other lawyers (indistinct). I don’t think if you award costs that it’s fair because I think other people would not want to come to court because they’d be too scared of costs order being made when it was a vexatious ‑ ‑ ‑
HIS HONOUR: Okay, thank you. I am not going to adjourn these proceedings so as to require the other side to appear in order to respond to the submissions that you’ve made. The reason for that is that the submissions - I would not, in any event, accept those submissions. In the reasons that I gave earlier this morning in your absence, I dealt with possible arguments that you might put had you been here. Those arguments included the potential incapacity that you would be able to pay the costs, the importance of the process for obtaining domestic violence orders, particularly for the protection of women, and the need that people have access to that process.
I also took into account the fact that in the reasons that I gave, I identified that there was at least one likely factual error in the magistrate’s decision. The submissions that you’ve made to me now address, in particular, the proposition that these proceedings were not vexatious. In deciding to award costs against you, I didn’t do it on the basis that the proceedings were vexatious. The provisions of the Domestic Violence and Protection Orders Act, which refer to proceedings being vexatious, namely section 107 of the Act, don’t apply to proceedings in this court nor does the provision in section, I think it’s 92 of the regulations under that Act apply to this court.
In this court, the costs are simply in the discretion of the court and there is a strong line of decisions which say that costs are compensatory. In this case, none of the matters which I considered and none of the matters which you have put forward to me now, in my view, provide an appropriate basis for departing from the general rule that costs should follow the event.
I reached that conclusion and I’m satisfied of that conclusion now after having heard your submissions, notwithstanding that I did not find that your application was vexatious and I accept that material was subpoenaed during the course of the application which may be of relevance, if it’s permitted to be used in another court, and I accept that you may well have a legal case which you are pursuing against your solicitors and I also accept that the other side may well have spent an amount in pursuing the various cases between you and your former husband which is well in excess of the amount that you have been able to spend.
While I have considerable sympathy for your position, in my view, the compensatory purpose of costs is that which is significant. Costs are not there to punish you but they are there to compensate the other side for the expenses of defending a case where it was ultimately successful. For those reasons I don’t propose to vary the orders that I made earlier this morning or call upon the other side to make further submissions in relation to the orders. What I will do, however, is direct that a transcript be obtained of the proceedings this morning and of the proceedings upon your appearance now and I will direct the registrar to provide a copy of that transcript both to you and to the respondent to the application.
[LE]: Thank you. Do I need to make a request now for the costs to be assessed, or?
HIS HONOUR: No. Unless they are to be agreed, then those costs will have to be assessed.
[LE]: Thank you.
HIS HONOUR: I assume that at some stage those costs will be quantified and the other side will correspond with you. If you can reach an agreement about the quantum of the costs, then you can reach an agreement about it. If there’s no agreement, then there’s a process for dealing with disputed claims for costs that goes before the registrar. You may be familiar with it, it’s referred to as taxation, but that’s a process which, unless there’s some agreement, will have to be gone through. As with all of these things, if that process leads to an amount payable to the other side which is greater than that which you’ve offered, the normal rule is that the costs of that process get included in the costs that you’re required to pay, so if you can agree on the quantum of the costs, there’s an incentive to do so. Does that make sense?
[LE]: Yes.
HIS HONOUR: Thank you. I’ll adjourn.
Following the conclusion of the proceedings I directed that a transcript of the proceedings be obtained and that the Registrar send a copy of the transcript to the applicant.
Consideration
On the present application, the respondent did not contradict the applicant’s evidence set out in her affidavit that she finds it very difficult to hear and understand what is said in court proceedings, although the respondent did submit that there was no independent evidence of any hearing deficit or any indication in the transcript that the applicant had any difficulty on that day.
I am not satisfied that the applicant did have any difficulty understanding what was said to her on 5 June 2015 because of her hearing deficit. My reasons for that conclusion are:
(a)the affidavit does not say that she actually had difficulty understanding what I said on that day;
(b)she did not raise in the course of proceedings any issue with being able to hear what I was saying;
(c)the indications in the transcript are in fact consistent with her being able to hear and understand what was being said to her; and
(d)she had been able to represent herself in the court proceedings during the three days of the substantive hearing in the matter.
A further point raised by the applicant is that she was denied the opportunity to make written submissions. The conduct of a procedurally fair hearing does not require a party to be given an opportunity to make written submissions upon request. Whether or not written submissions are an appropriate mechanism for dealing with any particular issue will depend upon the circumstances of the case and a discretionary case management decision about how to fairly deal with an issue. I gave reasons for the decision not to permit further written submissions. The submissions of senior counsel for the applicant did not indicate why such a discretionary decision was wrong. In particular, senior counsel for the applicant did not identify any submission that would have been made but was not because the applicant was denied the opportunity to provide written submissions. In so far as it might be inferred that some reference might have been made to the position paper prepared by the ACT Victims of Crime Commissioner, that is an example of additional material which might have been referred to but which would not have added to the substantive point made orally by the applicant.
In relation to the submission that the applicant was “cut-off whilst making her submissions and not given the opportunity to complete her submissions” I do not accept that that, in fact, was the case. It is correct that, because of the three hyphens that appear after the word “vexatious” in the transcript, it is open to interpret the transcript as involving a sentence being interrupted. Alternatively it is equally consistent with the applicant’s voice simply trailing off prior to the completion of a sentence. I consider it very unlikely that I did in fact cut off the applicant, having given her an opportunity to make oral submissions. That would certainly be inconsistent with my practice in relation to unrepresented parties. It is also inconsistent with what appears in the transcript immediately beforehand, which illustrates that the plaintiff made some submissions to the effect that she could not say a lot but that somebody else could help her if she was allowed to make written submissions, but then, when specifically asked whether she had any other submissions, made the three further submissions before I commenced giving my reasons.
The applicant has not identified what submission she says she was prevented from making when she was cut off.
For these reasons I’m not satisfied that the plaintiff was denied procedural fairness warranting a reopening of the orders. Therefore the application will be dismissed. I consider that it is appropriate that the applicant pay the respondent’s costs of the application. The reason for that decision is that costs are essentially compensatory. The statutory regime limiting the circumstances in which costs may be awarded against applicants in proceedings under the Domestic Violence and Protection Orders Act 2008 (ACT) are not expressed to extend to proceedings in this Court related to appeals from decisions of the Magistrates Court.
Observation
Finally, I note that the applicant brought this application only after a costs assessment had been completed and some 10 months after the making of the original costs order. I am not aware of what the practice of the registry is in relation to the assessment of costs, however, it appears to me to be undesirable for a registrar to commence an assessment of costs prior to the entry of the orders on which that costs assessment is based. Had the respondent filed the costs order so that it could be entered or had the Registrar declined to proceed with any assessment until the orders were entered, then the present issue would not have arisen.
If, contrary to the conclusions I have reached above, the applicant considered that she had been denied procedural fairness then it was open to her to apply for leave to appeal from my decision. Plainly she chose not to do so and is now well out of time.
Orders
The order of the Court is:
1. The application in proceeding dated 29 April 2016 is dismissed with costs.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 26 August 2016 |
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