Muhlhausen v McLoughlin - [2008] QMC 12

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Muhlhausen v McLoughlin [2008] QMC 12

PARTIES:

ASE SOLVEIG MUHLHAUSEN

(complainant)

v

KATHYRN MCLOUGLIN

(defendant)

FILE NO/S:

MAG26430/08(9)

DIVISION:

Magistrates Courts

PROCEEDING:

Application for Peace and Good Behaviour Order – Application for costs

ORIGINATING COURT:

Magistrates Court at Coolangatta

DELIVERED ON:

9 October 2008

DELIVERED AT:

Coolangatta

HEARING DATE:

2 May 2008, 27 June 2008

MAGISTRATE:

Costanzo JJ

ORDER:

The application for costs is refused.

CATCHWORDS:

COSTS – SUMMARY PROCEEDING - whether costs can be ordered in relation to a complaint seeking a Peace and Good Behaviour Order – whether such a complaint which is not of a public nature can be withdrawn without the consent of the defendant – whether court has jurisdiction to order costs after complaint is withdrawn.
Acts Interpretation Act 1954, s 44
Justices Act 1886, s149, s 158
Peace and Good Behaviour Act 1982, s 4,s 6, s 8

Besgrove v Larson [2001] QDC 144; (2001) 22 Qld Lawyer Reps 82

Hill v. Pinnock and Ors. (1879) 1 Q.L.J., (Supp.) 45

Latoudis v Casey (1990) 170 CLR 534; (1990) 97 ALR 45; (1990) 65 ALJR 151; (1990) 50 A Crim R 287.

Turner v Randall; Ex parte Randall [1988] 1 Qd R 726

COUNSEL:

Complainant appeared on own behalf

B Winter for defendant

SOLICITORS:

Complainant appeared on own behalf

Price and Roobottom Solicitors for defendant

The Complaint

On 6 February 2008 Ms Muhlhausen lodged a Complaint under the Peace and Good Behaviour Act 1982 naming Ms McLoughlin as defendant. On the first return date, 20 February 2008 each party appeared in person, unrepresented. The defendant said she wanted to contest the complaint. A hearing date was set for 2 May 2008. Directions were made as follows:

That the complainant was to file and serve upon the defendant affidavits and/or statements by all witnesses to be called by or on behalf of the complainant (including herself) on or before 14 March 2008. (Failing which the application could be dismissed at the discretion of the court)

That the defendant was to file and serve upon the complainant all affidavits and/or statements by witnesses to be called by or on her (including herself) in response to the application on or before 11 April 2008or within 14 days after receipt of the applicant’s material, whichever shall first occur.

(Failing which the application could, at the discretion of the Court, be heard only on the material filed by the applicant).

No affidavit or statement was to be admitted into evidence unless the deponent was available for cross-examination, except with the consent of the opposing party.

Leave to call oral evidence in chief could only be granted in relation to event/s or conversations occurring after the relevant date for the filing and serving of the affidavits or in exceptional circumstances (e.g. If the proposed witness is illiterate)

The parties appeared again in person, unrepresented, on 11 April for a Review Mention. By then all relevant material had been filed and served.

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.

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Details

Case: [2008] QMC 12
Decision Date: 9 October 2008

CaseChat Overview and Summary

In the matter of Muhlhausen v McLoughlin, the court was presented with a case involving a dispute over costs in relation to a complaint for a Peace and Good Behaviour Order. The defendant, Muhlhausen, applied for costs following the withdrawal of the complaint by the plaintiff, McLoughlin, without the defendant's consent. The case was heard in a court that has jurisdiction over matters related to summary proceedings and orders of this nature. The legal issues that the court was required to decide included whether costs could be ordered in relation to a complaint seeking a Peace and Good Behaviour Order, whether such a complaint, which was not of a public nature, could be withdrawn without the consent of the defendant, and whether the court had jurisdiction to order costs after the complaint had been withdrawn.

The court addressed these issues by examining the relevant legislation and case law. It found that the court did have jurisdiction to order costs in relation to the complaint, as the application for costs was made within the prescribed timeframe. However, the court also found that the plaintiff was not required to obtain the defendant's consent to withdraw the complaint, as it was not of a public nature. The court further found that, in the circumstances of the case, it was appropriate to refuse the application for costs, as the plaintiff had acted reasonably in withdrawing the complaint and there were no exceptional circumstances that would warrant the awarding of costs to the defendant. The court's reasoning was based on the principles of fairness and justice, and the need to avoid unnecessary litigation and expense.

In light of the above, the court refused the application for costs. The court noted that the defendant's conduct throughout the proceedings had been reasonable and that there were no grounds for awarding costs to the defendant. The court also noted that the withdrawal of the complaint had brought the matter to a close and that there was no need for further litigation or expense. The final orders of the court were that the application for costs be refused, and that the defendant bear its own costs of the proceedings.

Orders

Orders of the court

The application for costs is refused.

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:	Muhlhausen v McLoughlin [2008] QMC 12
PARTIES:	ASE SOLVEIG MUHLHAUSEN (complainant) v KATHYRN MCLOUGLIN (defendant)
FILE NO/S:	MAG26430/08(9)
DIVISION:	Magistrates Courts
PROCEEDING:	Application for Peace and Good Behaviour Order – Application for costs
ORIGINATING COURT:	Magistrates Court at Coolangatta
DELIVERED ON:	9 October 2008
DELIVERED AT:	Coolangatta
HEARING DATE:	2 May 2008, 27 June 2008
MAGISTRATE:	Costanzo JJ
ORDER:	The application for costs is refused.
CATCHWORDS:	COSTS – SUMMARY PROCEEDING - whether costs can be ordered in relation to a complaint seeking a Peace and Good Behaviour Order – whether such a complaint which is not of a public nature can be withdrawn without the consent of the defendant – whether court has jurisdiction to order costs after complaint is withdrawn. Acts Interpretation Act 1954, s 44 Justices Act 1886, s149, s 158 Peace and Good Behaviour Act 1982, s 4,s 6, s 8 Besgrove v Larson [2001] QDC 144; (2001) 22 Qld Lawyer Reps 82 Hill v. Pinnock and Ors. (1879) 1 Q.L.J., (Supp.) 45 Latoudis v Casey (1990) 170 CLR 534; (1990) 97 ALR 45; (1990) 65 ALJR 151; (1990) 50 A Crim R 287. Turner v Randall; Ex parte Randall [1988] 1 Qd R 726
COUNSEL:	Complainant appeared on own behalf B Winter for defendant
SOLICITORS:	Complainant appeared on own behalf Price and Roobottom Solicitors for defendant