Muhlhausen v McLoughlin
[2008] QMC 12
•9 October 2008
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a complaint seeking a Peace and Good Behaviour Order – whether such a complaint which is not of a public nature can be withdrawn without the consent of the defendant – whether court has jurisdiction to order costs after complaint is withdrawn.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 8Besgrove 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.
The proceedings
On the hearing date, 2 May 2008, the complainant appeared in person, unrepresented. Mr B Winter (Solicitor) appeared for the defendant.
The court had a heavy workload so the parties were given a not before time of 11 a.m. No-one applied for an adjournment. By 4 pm the matter was able to be finally reached. Mr Winter made a no case submission based on the requirements of sections 4 and 6 of the Peace and Good Behaviour Act 1982 and the content of affidavit material filed for and on behalf of the complainant.
In summary, I ruled that there was a case to answer because—
1. Evidence existed in the Affidavit material that the complainant was threatened with harm and was in fear as a result of a threat alleged to have been made by the defendant, and
2. There was no requirement for corroboration of the complaint, and
3. that the complaint could not be shown to be frivolous or vexatious because the prima facie evidence in support of the complaint contained in the affidavit material had not yet been tested by cross-examination.
Application for costs
On 2 May 2008 Mr Winter, for the defendant, also applied for costs. Given the late hour, costs were reserved. He went even further and informed the court and the complainant that he held instructions to seek costs under section 158 of the Justices Act 1886 for any future day or days as well unless the complaint was withdrawn.
Indeed, approximately half way between 2 May and 27 June the complainant notified the Court and Mr Winter that she decided to withdraw her complaint. The parties still appeared. Mr Winter applied for costs again.
To determine the issue it is necessary to consider not only relevant sections but also the conduct of the complainant, defendant and Mr Winter and what he said before 2 May, on 2 May, after 2 May and on 27 June.
Before 2 May 2008
By letter dated 28 April 2008, and headed “without prejudice save as to costs” the complainant was reminded that costs would be sought if she proceeded. It stated:
“We hereby put you on notice we believe that your application is frivolous and vexatious and without basis. Should the matter be dismissed by the court we intend to make an application for our professional costs.”
On 2 May 2008
At first Mr Winter said: (page 2; line 40)
Your Honour, the difficulty is of course under the provisions of section 8 of the Act which allows for the Justices Act to be applied in these proceedings; my instructions are to make an application for costs. Of course that can't be made today, your Honour, however, I wish to place on the record that my instructions are unless the applicant withdraws the application to proceed and to contest the making of the application.
My instructions are, of course based on the outcome of those proceedings, to make an application for costs. Your Honour, it is a case that we have been present at Court since 9 a.m. this morning, and certainly that, in my respectful submission, ought not to be borne as an expense by my client. It is a case that the application - I will be ultimately be making some submissions - will have some difficulties in continuing.
Then Mr Winter went on to state expand on his instructions: (page 6; line 1)
MR WINTER: I am flagging this in fairness to the applicant because I do intend to make those submissions and I do intend and I am instructed to make an application pursuant to 158 of the Justices Act.
BENCH: All right, well, I'm sure the complainant will understand that you have instructions to seek costs and that this could be very costly if her if she loses, if I order costs against her.
Your Honour, in fairness, if I might also indicate that a certain course may be able to - to be achieved‑‑‑‑‑I have not canvassed that in any detail with the applicant‑‑‑‑‑because she is not legally represented and I did not want to‑‑‑‑‑
BENCH: Yes, it's difficult when - when you can't discuss things with another lawyer so that someone's rights are protected.
MR WINTER: In fairness, your Honour, I have‑‑‑‑‑
BENCH: You don't want to be seen bullying her.
MR WINTER: That is the case and‑‑‑‑in fairness, I have raised that, that I have not‑‑‑‑certainly, provided her with any further details. I did want to flag that in fairness for the applicant‑‑‑if the matter was to proceed on another occasion.
None of that was clear so I asked Mr Winter if he meant that the matter could possibly be resolved by mediation and Mr Winter felt that would not work. At page 7 line 30 he then said
My application to the Court certainly is that a - that a certain course can be taken if the applicant was not to proceed with the application today. Alternatively‑‑‑‑‑
BENCH: Like what?
MR WINTER: I have instructions to consent to the withdrawal of the application.
BENCH: Mmm.
MR WINTER: It is a case, however, that if the applicant proceeds with the application then I have instructions to make the application under 518 (sic) for‑‑‑‑‑
BENCH: For costs.
MR WINTER: ‑‑‑‑‑for costs, not only today, but of also‑‑‑‑‑
BENCH: Yes.
MR WINTER: ‑‑‑‑‑future occasions.
Therefore, “taking a certain course” was not code for “settling the matter by making mutual undertakings” nor “the matter could be resolved by mediation” but that the defendant would “consent” to the withdrawal of the complaint (as if it depended on her consent) and that no application would be made for costs if it was in fact withdrawn.
Finally, at 8 line 45 the following exchange occurred to reach a clear understanding:
It is a case that in my respectful submission, there is no basis that an order would be made and it is appropriate that the matter should be dismissed. However, I do (hold) instructions to consent to that today alternatively, if it is to go over to a second day, of course my client will bear the additional costs and I do have instructions to make the application on the future occasion.
BENCH: Are you saying that if the application's withdrawn today you would not be seeking costs?
MR WINTER: That is the case.
I then took submissions from the complainant and assured myself she understood what Mr Winter had said and that I simply wanted to make sure that she did understand and that I was not seeking or suggesting a withdrawal of the complaint.
At page 9; line 40 the following discussion occurred:
BENCH: ‑‑‑‑‑But what Mr - I'm not sure if you understood this when he was speaking, what Mr Winter said was that he has instructions from his client‑‑‑‑‑
APPLICANT: Mmm.
BENCH: ‑‑‑‑‑that if you withdraw the application today he will not be asking me to consider ordering costs against you. Whether costs are ordered against you or not in the end is up to me. So for example, if this matter goes to trial and it lasts 2 or 3 days and if you lose, then Mr Winter will apply for costs and then it's up to me whether I make an order for costs against you. What he's saying is that - that his instructions are if you withdraw your claim here today, that he will not seek costs at all. So that - do you understand what he's saying? I'm not trying to pressure you one way or the other, I just want to know if you understand what he said?
APPLICANT: Yeah, I - and how I feel about that, your Honour, is just another bullying again, for me to give up and never ever get justice and I'm actually on a disability pension for the rest of my life and cost is very difficult for me, money is difficult for me, but this is just another form of bullying and again, to give up. That's what I've given up.
BENCH: Mmm.
APPLICANT: He's had a - there's been temporary protection or there's - there's been so on and so on and I've just given it all up, I've had broken - they've broken the Court orders for me couple of times last year from school, et cetera and I just - I'm not well, I'm not a hundred per cent well‑‑‑‑‑
BENCH: Mmm, I understand.
APPLICANT: ‑‑‑‑‑and I - and I financially have difficulties to go here and there, your Honour.
BENCH: All right. So are - are you saying that you do want to go ahead with this claim?
APPLICANT: Well, I just feel it's bullying not to go through with it because I've always given up every other time.
BENCH: All right.
APPLICANT: So I'm not going to give up this time.
BENCH: All right. I'll get another hearing date.
At that point in time, despite feeling bullied, the complainant clearly expressed a desire to continue. Mr Winter was unable to obtain the outcome desired by his client.
That was not where the matter ended.
Withdrawal after 2 May and before 27 June 2008
About half way between these hearing dates, by letter dated 6 June 2008, the complainant wrote to the court and to Price and Roobottom, Solicitors. Ms Muhlhausen wrote:
I have decided not to take Mrs McLoughlin to court for a hearing on the 27 of June for peace and good behaviour, since my daughter has been in full care with me this year.
Yet McLoughlin tells centre link and the child support agency that Kimberley (my daughter) is still having contact with McLoughlins according to family court orders.
Since we are only receiving 27 dollar a month in child support from the father we are struggling really badly and I am always putting my daughter and her wellbeing in first place.
My application is not frivolous or vexatious but I am worried that if the matter was to be dismissed and that I would have to pay for professional costs, we might not even afford to pay rent and therefore we would be homeless and so on I could not let that happen to my daughter.
On 27 June 2008
Despite the letter of withdrawal, each party appeared on the second day on 27 June when the trial proper was to occur.
The complainant obviously withdrew her complaint believing no costs order would be sought or made against her and because she can not afford to pay costs if she loses a hearing, resulting in the dismissal of the complaint.
During submissions on 27 June Mr Winter stated the “offer” made was that if the complaint was withdrawn in a timely fashion no cost order would be sought.
Mr Winter submitted
1. the complainant could not now withdraw the complaint without the consent of the defendant (without citing any authority for the proposition),
2. the complaint was frivolous and vexatious, and
3. the complainant should pay costs for both 2 May and 27 June (in effect, that she should pay
(a) the costs of his application for a finding that a complaint already withdrawn before that day was frivolous and vexatious and
(b) the costs of the application for costs.
I pause to note that while I took copious notes of the submission the State Reporting Bureau has not produced a transcript of the 27 June proceedings despite several reminders, so I am not able to directly quote excerpts as I have done for 2 May 2008.
Threat to seek costs
Rightly or wrongly the complainant was told repeatedly about the potential for a costs order against her. The complainant was told in writing and in person before trial, at trial and since the first day when the trial was supposed to commence. Even if it was not the intended result the Complainant seems to feel she was bullied into submission. Elsewhere, a decision needs to be made as to whether it is ethical to keep raising the prospect of a costs order if a claim or complainant is not withdrawn. How many times is enough to bring the issue to a complainant’s attention before it becomes unethical bullying of an unrepresented litigant? I am not unaware of, or unsympathetic to, the dilemmas and difficulties of a Solicitor having to communicate with an unrepresented litigant. All Courts at all levels have noted in recent years the growing proportion of litigants who are not legally represented and the Magistrates Court has a larger number and proportion than any other court in this State.
The problem here for Mr Winter, however, is that in fact and in law—
withdrawal of this complaint can happen without the consent of the defendant, and
there is no power in this court to order costs at all if a complaint made under the Peace and Good Behaviour Act 1982 is withdrawn, yet he has repeatedly “threatened” the complainant with a costs application which, it turns out, he can not make.
The complainant’s withdrawal came about before she returned to court for the commencement of the hearing proper on the second day and apparently without seeking legal advice. The court was led, in error, by Mr Winter’s submission for costs on the first day, into a discussion of the possibility of a costs order being made against the complainant if she was not successful in obtaining an order, because he did not refer the court to relevant cases mentioned below.
Complainant may withdraw complainant without defendant’s consent
In Turner v Randall; Ex parte Randall [1988] 1 Qd R 726 the court held that s 158 of the Justices Act empowered a magistrate to award costs against a complainant only when the complaint was dismissed. The court held further that the power to withdraw a summons before justices only existed where the charge was not of a public nature. The court approved the decision in Hill v. Pinnock (1879) 1 Q.L.J. (Supp.) and said:
In Hill v. Pinnock and Ors. (1879) 1 Q.L.J., (Supp.) 45, at 50, Harding J. observed that the power to withdraw a summons before justices is only shown to exist where the charge is not of a public nature. That, in our opinion, is clearly correct. In these cases the charges were laid following arrest and the proper course, if the prosecution did not intend to proceed, was to dismiss the complaint. This would enable the defendant to claim the benefit of s 149 of the Justices Act, and so have proof of a bar to any subsequent complaint for the same matter.
The defendant is not charged with any offence or breach of duty. There is no charge of a public nature. There was before this court a private complainant of a civil nature with quasi-criminal consequences if a breach of any resultant order occurred.
Where does the power to order costs come from?
A large amount of legislation now cross-references itself to the Justices Act 1886 for the purpose of finding the procedure to be followed for various proceedings.
There are no costs provisions in the Peace and Good Behaviour Act 1982.
Mr Winter relied on section 8 of the Peace and Good Behaviour Act 1982 to say costs could be ordered under s 158 of the Justices Act. Section 8 provides:
8 Application of Justices Act
Subject to this Part and subject to any necessary modifications and any modifications prescribed by regulation, the provisions of and proceedings and procedures under the Justices Act 1886 applicable in the case of the prosecution of an offence in a summary way under that Act are applicable in the case of proceedings by way of complaint in respect of which an order to keep the peace and be of good behaviour may be made pursuant to section 6 as if such complaint were a complaint in respect of such an offence.
So much had already been established by s 44(3) of the Acts Interpretation Act 1954. To comprehend subsection (3) it is necessary to set out the section in full.
44 Summary proceedings
(1) In an Act, a provision of the type mentioned in subsection (2) means that a proceeding for an offence, or a specified offence, against the Act is a summary proceeding under the Justices Act 1886.
(2) Subsection (1) applies to provisions of the following type—
(a) a provision to the effect that a proceeding for the offence is to be heard and decided summarily;
(b) a provision to the effect that a proceeding for the offence is to be heard and decided by or before justices or a magistrate;
(c) a provision to the effect that the offence is a summary offence or is punishable on summary conviction or summarily;
(d) a provision for an offence that does not expressly or impliedly make the offence an indictable offence.
(3) In an Act, a provision that provides that another type of proceeding is to be heard and decided summarily, or before justices or a magistrate, means that the proceeding is a summary proceeding under the Justices Act 1886.
It is instructive to note that section 158 of the Justices Act 1886 is located in Part 6 (Proceedings in case of simple offences and breaches of duty), Division 8 (Costs):
158 Costs on dismissal
(1) When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.
(2) When a complaint is before a Magistrates Court which the court has not jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the defendant such costs as to the court seem just and reasonable.
In Besgrove v Larson [2001] QDC 144; (2001) 22 Qld Lawyer Reps 82 McGill DCJ held at paras [2], [3]:
[2] ... Proceedings under that Act (the Peace and Good Behaviour Act) are unusual in that, although by s 8 of that Act the procedure to be adopted is that of complaint and summons under the Justices Act, they are in truth civil proceedings rather than criminal: Laidlaw v. Hulett [1998] 2 Qd.R. 45. As was pointed out there, a complainant under the Act is not in respect of any offence; rather the purpose of the procedure under the Act is to achieve an order of the court requiring a particular person to keep the peace and be of good behaviour, so that contravention of that order constitutes an offence under s 10 of that Act. The position seems to me to be analogous to proceedings under the Domestic Violence (Family Protection) Act 1989.
[3] It was submitted, and I accept, that the effect of s 8 is that the procedures under the Justices Act are made available, including that part of the Act which deals with the question of costs. Section 158 provides a power to order costs in circumstances where a complaint is dismissed. Costs are a creation of statute and there is no power to make an order for costs unless such a power is expressly or by necessary implication conferred by a statute: Wyatt v. Albert Shire Council [1987] 1 Qd.R. 486 at 488; Crowe v. Bennett, ex parte Bennett [1993] 1 Qd.R. 57 at 62; Phillips v. Morris [1999] 1 Qd.R. 89; Queensland Fish Board v. Bunney [1979] Qd.R. 301 at 303. In my opinion the only relevant power is that found in s 158 of the Justices Act. There does not appear to be any other source of power to make a costs order in such circumstances; there is no power to make an order for costs conferred expressly by the Peace and Good Behaviour Act.
Mr Winter’s submission comes down to this: Because the defendant does not consent to the withdrawal of the complaint, and based on ten points he raised about the evidence and history of the parties and prior litigation I should make a finding that the complaint was made from malice or for vexation and dismiss the complaint, therefore paving the way for a costs order under s 158 of the Justices Act.
Section 6 of the Peace and Good Behaviour Act 1982 provides:
6 Magistrates Court may make order
(1) The Magistrates Court before which the defendant appears in obedience to the summons or is brought pursuant to the warrant, as the case may be, shall hear and determine the matter of the complaint.
(2) Without limiting any other evidence given by or on behalf of the defendant, the defendant may produce evidence that the complaint is made from malice or for vexation only.
(3) Upon a consideration of the evidence, the Court may—
(a) dismiss the complaint; or
(b) make an order that the defendant shall keep the peace and be of good behaviour for such time, specified in the order, as the Court thinks fit.
(4) The order made by the Court may contain such other stipulations or conditions as the Court thinks fit.
The defendant did not lead, and did not seek to lead, any evidence of malice or vexation other than the content of filed affidavits. Mr Winter he did not wish me to hear any evidence and sought to rely only on the content of the affidavits filed and his submissions (some bordering on giving evidence from the bar table). The problem with this argument was that I had, after reading all the affidavits, ruled there was a prima facie case to answer and now I was supposed to make further findings without the benefit of further evidence nor of cross-examination of any deponent. The phrase “Upon consideration of the evidence” in subsection (3) must mean after a full and careful consideration of all the evidence after (in the words of subsection (1)) a hearing and determination of the matter of the complaint.
In any case, the answers to the issues in this case are found in Besgrove v Larson [2001] QDC 144; (2001) 22 Qld Lawyer Reps 82.
Jurisdiction to order costs
[14] Section 158(1) permits the court to make an order that the complainant pay the defendant’s costs “when justices … dismiss the complaint”. In Turner v. Randall, ex parte Randall [1988]) 1 Qd.R. 726, the Full Court was dealing with an order to review a decision by a magistrate who had allowed a charge under s 5 of the Electricity (Continuity of Supply) Act 1985 to be withdrawn and made no order as to costs. The court said in a joint judgment at p.728:
“The orders to review sought the review of both the decision that the matter be withdrawn and the decision to refuse costs, but the grounds stated related only to the question of costs. This creates a problem which was referred to at the hearing of the appeal, namely, that s 158 of the Justice Act, which empowers a Stipendiary Magistrate to award costs against a complainant, does so only when the complaint is dismissed. The letter from the solicitors to the Police Commissioner spoke of the matter being withdrawn, and the Stipendiary Magistrate took the course of permitting the withdrawal of the matters, effectively, by consent. However, the argument before him clearly was directed to the question of costs and neither side appears to have adverted to the limitation inherent in s 158.”
The court went on to note that there was authority that the power to withdraw a summons before justices existed only when the charge was not of a public nature and that accordingly in that case the magistrate had erred in permitting the complaint to be withdrawn, and accordingly that part of his decision should be set aside and an order that the complaint be dismissed substituted. The court then went on to decide that in that case it was appropriate for there to have been an order for costs against the complainant.
[15] In my opinion it is clear from that decision that the court was of the opinion that, if a complaint was withdrawn as distinct from being dismissed, there is no jurisdiction to make an order for costs against the complainant, so that, had the complaint remained “withdrawn”, nothing could have been done to interfere with the decision that no order should be made as to costs. However, in the present case the Notice of Appeal did not seek to interfere with the magistrate’s order that the complaints be withdrawn, or rather the decision of the magistrate to permit the complaints in this case to be withdrawn, and the principle on which the Full Court acted in Turner would not render it wrongful for the magistrate in the present case to have permitted this complaint to be withdrawn. Not only was this not a charge of a public nature, it was not a charge at all. Whatever the effect may be of permitting the application for an order under this legislation to be made by the procedure of a complaint and summons under the Justices Act, in my opinion it does not convert such an application into a charge of a public nature. The public policy considerations which make it inappropriate to permit such a charge to be withdrawn (discussed for example in Kerridge v. Simmonds (1906) 4 CLR 253) do not apply in the case of an application for an order under the Peace and Good Behaviour Act.
[16] It was submitted on behalf of the appellant that there was no relevant distinction between the complaint being dismissed and the complaint being withdrawn, because in each case the proceedings had terminated in a way favourable to the appellants. Assuming that that is the case, it does not alter the situation that s 158 gives jurisdiction to make an order for costs only when the complaint is dismissed. Given that the power to award costs is entirely statutory in its basis, unless the matter comes within s 158, no order can be made. It is therefore unhelpful to say that in other respects there is no relevant difference in relation to the entitlement to costs between a complaint being dismissed and a complaint being withdrawn.
[17] In my opinion, the magistrate was entitled to permit the complaint to be withdrawn. There is no appeal against that order and, given that the order was not resisted before the magistrate, there would be difficulties now in challenging the magistrate’s decision to permit the withdrawal of the complaint. Once that was done, in my opinion, the question of costs became academic; there was no jurisdiction to order them. It follows that the appeal must be dismissed.
The case relied upon by Mr Winter was Latoudis v Casey (1990) 170 CLR 534; (1990) 97 ALR 45; (1990) 65 ALJR 151; (1990) 50 A Crim R 287. In that case the issue was whether in summary criminal proceedings a successful defendant should ordinarily be awarded his or her costs. The case was considered by McGill DCJ in Besgrove v Larson (above) at para [18]:
In case I should be in error about that conclusion, however, I will deal with the
merits of the appeal. Reliance was particularly placed on behalf of the appellants on the decision of the majority of the High Court in Latoudis v. Casey (1990) 170 CLR 534. In that case it was said by the then Chief Justice at p.542 that:
“In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. … A court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.”
In that case however, his Honour was not prepared to equate the position in the case of criminal proceedings with that in civil proceedings (p.543), and His Honour said that he would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event. That is the general approach in civil proceedings, and as I have already noted, the Court of Appeal has categorised proceedings under this Act as being civil rather than criminal, although with some criminal features.
My searches of the Office of Parliamentary Counsel’s Office web site and of Lexis-Nexis show that since the decision by McGill DCJ in Besgrove v Larson on 21 June 2001 section 158 of the Justices Act and section 8 of the Peace and Good Behaviour Act have not been amended, and His Honour’s decision has not been challenged or overturned.
In this case the complaint was withdrawn, as distinct from being dismissed, and there is no jurisdiction to make an order for costs against the complainant. Nor is there, after a proper hearing and determination of the merits, a successful, or an unsuccessful, party. The withdrawal of the complaint removes the court’s jurisdiction to hear and decide the complaint or any related costs issue.
The application for costs should be dismissed.
Merits
Although I do not need to consider the merits of an application for costs in these circumstances, I make the following findings and observations.
There are special circumstances why no costs order should be made in favour of the defendant, besides those identified and approved by McGill DCJ in Besgrove v Larson (above) such as the fact that a complaint was made and withdrawn under the Peace and Good Behaviour Act. They include the fact that the defendant’s solicitor was advised four weeks before the 27 June hearing date that the complainant was withdrawn. Mr Winter had 4 weeks to find the cases law I have referred to in this decision in order to decide whether to apply for costs and to properly assist the court. He had 4 weeks to decide not to bring the interstate witnesses to the Gold Coast. There was amply time to cancel their travel arrangements. He persistently told the complainant, using various terminology, that if she withdrew the complaint no costs order would be sought. Much of the costs incurred by the defendant were avoidable and incurred unnecessarily. There has been no hearing or determination of the merits of the complaint except to decide there was a prima facie case against the defendant. The defendant got the result she desired (namely, withdrawal of the complaint) yet she still instructs Mr Winter to seek costs. It would not only be unfair and unreasonable, it would be unconscionable in these circumstances to award costs.
ORDER
The application for costs is refused.
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