Myrtle (a pseudonym) v Lee
[2024] VMC 9
•8 July 2024
IN THE MAGISTRATES’ COURT OF VICTORIA
AT BALLARAT
CIVIL DIVISION
Case No. M12517964
| SHANNON MYRTLE (a pseudonym) | Applicant |
| v | |
| MARTIN LEE | Respondent |
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MAGISTRATE: | BAILIN |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 8 July 2024 |
DATE OF DECISION: | 8 July 2024 |
CASE MAY BE CITED AS: | Myrtle (a pseudonym) v Lee |
MEDIUM NEUTRAL CITATION: | [2024] VMC 9 |
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CRIMES COMPENSATION – Application for compensation pursuant to s 85B of the Sentencing Act 1991 – Psychological injuries – Award of costs – Sentencing Act 1991 (Vic).
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr L Allan | Arnold Dallas MacPherson |
| For the Respondent | In person |
HIS HONOUR:
Introduction
1Shannon Mrytle,[1] makes an application for compensation from the respondent, Martin Lee, pursuant to s 85B of the Sentencing Act 1991 (“the Act”) for injuries suffered as a direct result of offences for which the respondent was convicted on 28 February 2023. The applicant made an application for compensation that was first listed on 27 April 2023. It has been adjourned on no less than 6 occasions over the last 15 months.
[1] A pseudonym.
2Mr Allan of counsel appeared on behalf of the applicant. The respondent represented himself at the hearing.
Circumstances
3His Honour Magistrate Radford sentenced the respondent, Martin Lee, on 28 February 2023 in relation to four charges of sexual assault. The applicant in this matter was one of the four victims. The respondent pleaded guilty to the charges on 24 January 2023. On all matters the respondent was sentenced to 12 months imprisonment combined with a 2-year Community Correction Order
4In terms of the facts relevant to the applicant:[2]
(a) At the time of the offending the respondent practised as a GP at the local medical clinic. I have not identified the clinic to avoid identifying the applicant in this matter. The respondent had been the applicant’s treating GP for the 3 years prior to the incident.
During a consultation with the respondent in October 2017 regarding cellulitis in her breasts, the applicant was asked to take her bra off and whilst doing so the respondent has grabbed her bra and ripped the clip, breaking it. The respondent as then touched the applicant’s right breast for a short amount of time, before touching both breasts and comparing them. The respondent then fondled the applicant’s breasts with one breast in each hand for five to ten minutes. The applicant ultimately told the respondent to stop and pushed him away leaving the consultation room without her bra on. It was reported at the time that the incident left the applicant feeling violated, disgusted, and sick. In her statement to police, she described feeling as though the respondent was milking a cow.
[2] From the audio recording of the plea hearing on 24 January 2023.
Relevant legal principles
5Section 85B of the Act provides that if a court finds a person guilty or convicts a person of an offence, and on the application of a person who has suffered an injury as a direct result of an offence, it may order the offender to pay compensation of such amount as it thinks fit.
6This application is a civil proceeding and the civil standard of proof, on the balance of probabilities, applies.
7A compensation order may include an amount for pain and suffering as a direct result of the offence and for expenses incurred or reasonably likely to be incurred by the victim for reasonable counselling services as a direct result of the offence.
8As well as actual physical bodily harm, ‘Injury’ is defined to include mental illness or disorder, or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock. It also includes grief, distress or trauma or other significant adverse effects, or any combination of those matters.[3]
[3]s 85A Sentencing Act 1991 (Vic)
9In the case of Moresco & Ors v Budimir,[4] His Honour T Forrest J set out the legal principles as follows:
“A compensation order provides a convenient mechanism for the recovery of compensation by victims. An application for such an order is
intended to be quick, cheap and built upon the criminal proceeding. It is designed to avoid the ‘complex or technical rules of procedure as may properly apply’ on a civil application for damages at common law.
If a court convicts or finds a person guilty of an offence it may order the offender to pay compensation to a person who has suffered injury as a direct result of that offence. It follows that on an application such as this a court must ask itself:
1) Was the offender found guilty or convicted of an offence?
2) Has the applicant suffered injury?
3) Was that injury a direct result of the offence?
If the answer to each of these questions is, ‘Yes’, and the offender has been given a reasonable opportunity to be heard on the application, the Court may order the offender pay compensation in such amount as it sees fit. This amount may represent one or more of the heads of injury countenanced by s 85B(2) of the Act, including pain and suffering, medical expenses, expenses relating to counselling services and other, related, expenses that do not concern damage to property.”[5]
[4][2015] VSC 51
[5]Moresco & Ors v Budimir [2015] VSC 51 at paragraphs [18] – [20]
10Relevant to this application, his Honour went on to say,
“Orders for compensation are not limited to injuries that would be compensable at common law. The Act’s definition of ‘injury’ is broad and includes grief and distress.”[6]
[6]Moresco & Ors v Budimir [2015] VSC 51 at paragraph [21]
11Further, he stated,
“The expression ‘direct result of’, which means ‘an injury that is judged as a matter of fact, according to common-sense and experience, to have been caused by the offence.”[7]
[7]Moresco & Ors v Budimir [2015] VSC 51 at paragraph [22]
12His Honour noted,
“If there is an entitlement to compensation, the assessment of the quantum of that entitlement is undertaken by application of the common law principles of assessment of damages, subject to any necessary modification.”[8]
[8]Moresco & Ors v Budimir [2015] VSC 51 at paragraph [25]
13In assessing quantum of the entitlement to compensation, His Honour stated:
“The judge must intuitively synthesise all of the material circumstances of the case, including the seriousness of the offending, the relationship between the offence and the victim and the victim and the offender, the degree of injury suffered by the victim, the offender’s financial circumstances and the effect of an order on the offender’s prospects for rehabilitation.”[9]
[9]Moresco & Ors v Budimir [2015] VSC 51 at paragraph [25]
14Section 85H of the Act provides that if a court decides to make a compensation order, it may, in determining the amount and method of payment of the compensation, take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. Justice Bell in RK v Mirik and Mirk[10] observed that the discretionary power permits a court to consider the impact of an order on the rehabilitation of an offender, including an offender who has been sentenced to a term of imprisonment.[11] Justice Bell pointed out that an adult offender’s means are a relevant, but not a controlling consideration.[12]
[10][2009] VSC 14
[11]RK v Mirik and Mirik [2009] VSC 14 at paragraph [137]
[12]RK v Mirik and Mirik [2009] VSC 14 at paragraph [135]
15Further, if a court is unable to find out the financial circumstances of the offender, it is not prevented from making a compensation order.
16Pursuant to section 85I of the Act, if an award has been made to the victim under the Victims of Crime Assistance Act 1996, the Court must reduce the amount of compensation for the expense or other matter for which compensation is sought in the application.
Relevant materials
17The applicant filed a court book in support of the application. Within it was contained:
(a) An Outline of Submissions;
(b) Police statement of the applicant dated 1 November 2021;
(c) Extract of the sentence imposed from 28 February 2023;
(d) Restraining Order made by the County Court on 30 March 2023 in relation to the respondent;
(e) Copies of the VOCAT awards;
(f) Report of Dr Metaxas dated 14 October 2022 that was prepared in support of the VOCAT application;
(g) Notes from Ms Denise Triffett a counsellor; and
(h) An InfoTrack search revealing a list of properties the respondent is said to have an interest in.
18The Respondent also filed a court book. At the outset of the hearing today I canvassed the admissibility of certain parts of the documents sought to be adduced. The materials relied upon by the Respondent included:
(a) Written submissions – although it was raised with the applicant the submissions under the hearing ‘Dispute of facts’ sought to traverse the agreed summary read to the court on 24 January 2023. I raised with the respondent this court does not engage on a fact-finding exercise as to whether the criminal offending occurred or not, that has already been the subject of judicial determination on 24 January and 28 February 2023. The respondent stated he understood this and did not seek to press paragraphs 1-2 of his written submissions in this regard;
(b) Tristar Medical Group records of the applicant. At the outset of the hearing I raised the admissibility of these records as they were not produced under subpoena/summons nor with the seeming consent of the applicant. The respondent confirmed he had made a copy of them during the insurance notification process and sought to rely on these. When raised with counsel for the applicant, Mr Allan sought instructions and ultimately submitted the applicant would consent to her records being provided and would indeed also seek to rely on them;
(c) VIFM report of Dr Marr dated 15 June 2022. This was prepared for the criminal proceeding and I raised with the respondent it was of no relevance to the question in issue today under s 85. The respondent did not seek to press the reliance on this document;
(d) Sample form of DASS42. The respondent sought to rely on this to attempt to show the subjective nature of mental health assessments. I raised the relevance of this document and both how it could be adduced without any expert evidence and the respondent conceded he would simply make submissions as to the credibility of Dr Metaxas’ opinion without relying on this document;
(e) Complaint by Ms Mrytle, TMG response and the respondent’s letter to the applicant; and
(f) Copy of correspondence between the respondent and the applicant’s lawyers.
19Neither party sought to call any evidence nor seek cross-examination of any witness. Neither the applicant nor respondent gave evidence. All parties relied on the written material subject to the issues identified above.
Evidence about injury
Dr Metaxas report20In her initial report in support of recommendation for counselling for the applicant’s Victims of Crime Assistance application Dr Metaxas opines a number of matters. She saw the applicant for two 60 minutes consultations in August/September of 2022. These consultations consisted of a clinical interview and administrations of the DASS-42 being a psychometric tool. During the course of the assessment Dr Metaxas noted the applicant was overtly distressed throughout, easily triggered to become emotional and cry. In her opinion “it appeared many past issues kept becoming triggered for her” and “it was clear that the current incident had also triggered unresolved trauma for her”. Dr Metaxas noted the outcome of the application of the DASS-42 was that the applicant indicated her depression and stress was extremely severe to severe when compared to the sample adult population.
21Relevantly for this application, Dr Metaxas opined that:
(a) The applicant presents with PTSD and the current incident was traumatic for the applicant and appears to have re-triggered past unresolved trauma and exacerbated any existing condition;
(b) The incident has caused a heightening of fear, anxiety and depression and has elevated her fear of abuse from men and professionals in power.
(c) This manifests in dreams she had about the event and respondent since the incident, seeing his face all the time, reliving what happened and her anger which has flowed as a result of experiencing this. The applicant is hypervigilant since, experiences fear in public and in her home, she has felt depressed and suicidal at times, had low energy and feelings of worthlessness. She has exhibited avoidant behaviours, finds herself in a state of nervous tension and has a loss of trust in doctors and men, making it harder to seek treatment for her medical conditions. It exacerbated her incontinence issues, led to self-blame, and physically exhausted her.
(d) She opined that “there appears to be a clear link between the reported act of violence and the applicant’s symptoms most of the symptoms and behaviours described… were reportedly not present prior to the incident, or they were not present to the intensity currently experienced. Since the incident there have been “reported changes to the applicant’s emotional, cognitive, physical and daily functioning”.
22Ultimately Dr Metaxas recommended long term therapy, being 40 hours of counselling over several years with an estimated case of $7,400.
Counselling notes
23Having regard to the weight to place on these notes given they are not an expert opinion nor admissible as such, what they do set out is that the applicant struggles daily with depression, anxiety, and distress, this manifests physically in being very anxious, teary and distressed during sessions. There is also a reported loss of security and safety, powerlessness, loss of trust in doctors and the health system. It has an impact on the applicant’s sleep, ability to concentrate and regulate her mood.
Victim Impact Statement
24In the applicant’s victim impact statement dated 11 January 2023 read to the court during the plea hearing on 24 January 2024 she expressed that she felt betrayed and violated as a result of the crime. She remained fearful, weary of males and doctors and people in general. After the incident she felt dirty, couldn’t understand how it could happen and mad her question herself. She expressed how since the incident her health has gone downhill which is exacerbated by her reluctance to see a doctor for any assistance.
Financial circumstances
25The respondent in answer to questions from the court provided the following information in relation to his finances:
(a) He has been out of work for more than 3 years now and is not eligible for Centrelink and as such lives off rental income;
(b) He still owns 14 properties set out on the InfoTrack search, having sold 4 and with an intention to sell others to minimise his expenses, noting some of these properties do not generate an income due to loss or unpaid rent;
(c) On an average month he receives about $5000 from rental income;
(d) He lives in a home he owns with his partner which is worth about $280,000 and has a $70,000 mortgage; and
(e) He has about $16,000 in all his bank accounts.
VOCAT
26The applicant has received an award of assistance from VOCAT comprising special financial assistance of $3,250 and counselling costs of $3,700.
Respondents case
27The primary challenge brought by the respondent is that any mental injury suffered was not as a direct result of the offending, but rather that injury could be attributed to a constellation or cumulation of various traumas experienced by the applicant including the breakdown of her relationships in the past given some involved circumstances of violence and the break in of her home.
28Further as it will become relevant to the question of costs the respondent made the following oral submissions. I have sought to set them out in as clear a way as I understood them:
(a) The lack of any physical injury suffered by the applicant reduces the likelihood the applicant suffered a consequent mental injury, especially one that is said to arise on the respondent’s case after 5 years;
(b) The applicant was on anti-depressant medication prior to the offending as noted in the medical records such that it establishes that that condition was pre-existing, and his offending was not the sole cause;
(c) That if someone suffered PTSD to the extent claimed in the respondent’s experience as a doctor and from the fact his partner has PTSD it reduces the likelihood that it was connected to the offending if there was no treatment sought for 5 years as it would have been debilitating necessitating immediate treatment;
(d) That the main cause of the applicant’s mental injury was the rejection she felt at the hands of the respondent when he told her to see another doctor and when he told her his wife was a good wife;
(e) That it was the applicant who was emotionally reliant on him and fixated on him;
(f) That many of historical personal issues the applicant had experienced over time were much more serious than the offending here which he characterised as “just a touch on one occasion”.
(g) That the opinion of Dr Metaxas was unreliable or lacked credibility as mental health as a discipline relies on subjective self-assessment so anyone could say anything about their conditions;
(h) He denied sending the letter to the applicant out of malice but what he thought was his right to confront the allegations made against him.
29It is worth noting in his written submissions he sought costs for his mental suffering caused by what he characterised as a “malicious claim and ambulance chasing behaviour’ brought by the applicant and her lawyers. This claim was not pressed in oral submissions.
Assessment
30The applicant’s psychological injury has been set out in Dr Metaxas’ report and the grief, distress, trauma and other significant adverse effects have been set out in brief in the applicant’s statement, counselling notes and victim impact statement.[13]
[13]Exhibit A-1 and A-5
31Dr Metaxas’ report set out her conclusion that the applicant presents with PTSD and this has led to heightened fear, anxiety and depression and that there is a clear link between these symptoms and the offending.
32I note the applicant’s reported symptoms both in her victim impact statement and through the counselling notes are all consistent and support a finding that she has suffered an injury.
33Section 85B(2) provides a compensation order may be made up of amounts for pain and suffering, expenses for reasonable counselling services, medical expenses and other expenses actually and reasonably incurred or likely to be incurred, all of which must be as a direct result of the offence.
34Counsel for the applicant submitted the applicant is eligible to receive compensation for her pain and suffering she has and continues to experience. During oral submissions, Counsel stated that any amount for counselling ought take into account the VOCAT award for a proportion of that recommended by Dr Metaxas.
35In counsel’s written submissions $150,000 was advanced as an appropriate amount of compensation. At the hearing, Counsel submitted this amount was an appropriate award of compensation, when regard is had to the severity of the impact of the injury on the applicant, notwithstanding what may be seen as the lesser objective gravity of the offending. Counsel referred to the case of Marks & Ors v Bolton (a pseudonym) [2022] VCC 565 where the applicants (mother and her two daughters) were awarded $190,000, $140,000 and $115,000 respectively. I note in that case the respondent was the father and grandfather of the applicants and the offending was of incest of a penetrative nature, in one of the cases, over a number of years. I was also referred to a number of other cases including AA (a pseudonym) v Cooper,[14] Jackson (a pseudonym) v Tetley,[15] Peterson v Peterson (a pseudonym),[16] and V3 (a pseudonym) v Hewitt (a pseudonym),[17] and Lowe (a pseudonym) v Jacob Monsoon (a pseudonym)[18] for some guidance for compensation awarded for injury as a result of sexual offending.
[14][2015] VCC 185 per Judge O’Neill
[15][2020] VCC 799 per Judge Carmody
[16][2021] VCC 434 per Judge Misso
[17][2020] VCC 280 per Judge Carmody
[18][2024] VCC 763 per Judge Tsikaris
36Each case must be determined on its own facts and circumstances, and I take into account Her Honour Warren CJ:
“…comparisons between compensation awards under the Act and other legislation, or damages at common law, may not be useful due to the difficulty identifying with any precision the various considerations and weight attributed to them, and the differing awards and factual circumstances between cases. In addition, the number of offences is not of itself pertinent, rather it is their effect on the victim that is relevant. This reflects the principle that the compensation is not intended to reflect the respondent’s criminal liability, rather it is directed to compensating the victim for the effects of the offences.”[19]
[19]V1 & Ors v Xydias [2009] VSC 616 at paragraph [9]
37I have a discretion pursuant to section 85H of the Act if I decide to make a compensation order, to consider the financial circumstances of the respondent. I take into account the respondent’s financial circumstances to the extent possible given his non-participation in the proceeding. Information about his financial circumstances has been gleaned from the reasons for sentence and the title search. The applicant referred to the respondent as still working, but there are no details about this.
38In taking into account his financial circumstances, I also take into account the nature of the burden payment will impose. An order for the respondent to pay compensation will impose a burden on the respondent and given what was submitted about his financial state he may be required to sell his property.
39I will only briefly deal with the conduct of the respondent in relation to this application. In his written submissions he sought to traverse the agreed summary of facts from his plea hearing where he entered a plea of guilty on 24 January 2023. I made clear this court proceeded on the basis they were the facts, this was not a mini trial of those issues. The court on numerous occasions sought to remind Mr Lee who was representing himself the facts of the offending were proven, not open for debate. As can be seen from the arguments advanced by the respondent this had little effect. It is clear to me throughout his submissions he sought to shift responsibility for his decisions, through comments that the lawyers made him plead guilty, to that it was only minimal offending, and paint the applicant as the party at fault. To the extent required I entirely reject the submissions of the respondent in this regard.
40I highlight that Mr Lee did not seek to cross examine any witness, so from that end the applicant was spared that trauma, however she was present throughout his submissions, silent, as he sought to demean and denigrate the impact of the crime on her. Mr Lee is not an expert. He cannot give an opinion about the credibility of mental health as a discipline. He did not call for Dr Metaxas so his challenges to her opinion carry little weight. His attack on delayed treatment sought by the applicant is in stark contrast to the known evidence in this area codified in legislation such as the Jury Directions Act Complainant’s react differently to trauma, there is no one standard reaction some may disclose immediately some later, as some may only seek treatment when they are ready. In any event as the applicant was not called that challenge could not be put to her, such that that submission carries little weight.
41As to the respondent’s characterisation of the offending it was as offensive as it was lacking in reality. His was an offence involving a profound and gross breach of trust where the complainant was particularly vulnerable. Its seriousness is reflected in the custodial sentence for someone who had no prior history. As for his suggestion that the mental injury was caused by the applicant’s rejection, anger and or jealousy - that was utterly lacking in merit and offensive.
42A respondent has the right to challenge a claim for compensation brought - it is to that end the court spent a significant amount of time assisting the respondent about the challenges open and the considerations the court is required to grapple with. This was done given the sensitive nature of the matter and the fact the respondent was self-represented. Those guardrails failed to constrain submissions which can only have exacerbated the injury experienced by the applicant.
Conclusions
43On the balance of probabilities, I am satisfied the applicant has suffered an injury as a direct result of the respondent’s offending. I only take into account the offending as described by the sentencing magistrate. The injury is psychological and falls within the definition of injury in section 85A of the Act as a mental disorder, as well as grief, distress, trauma, and significant adverse effects.
44The applicant has been found by Dr Metaxas, a qualified psychologist, to present with PTSD manifesting through the exacerbation and present a depression, anxiety, and fear. That expert opinion was not challenged through cross-examination. The symptoms experienced and noted by Dr Metaxas do not appear in the Tristar medical records prior to the respondents offending. The symptoms experienced are consistent across Dr Metaxas report, the counselling notes, police statement and victim impact statement. Such that I am satisfied on the balance of probabilities that the applicants’ mental injury was as a direct result of the respondent’s offending.
45Moreover, I accept the offending here has had a profound impact on the applicant across many parts of her mental, social, and daily functioning. It has permeated all aspects of her life.
46I take into account the respondent’s financial circumstances to the extent I am able. I note the applicant’s compensation is for suffering an injury as a direct result of the offence and is not to be more generous than otherwise is the case simply because the respondent has assets. Common law principles apply to the assessment of damages and the object is to compensate the plaintiff for damage and not penalise the respondent. I do not reduce the amount I award to the applicant on the basis of the information about the respondent’s financial circumstances.
47In making my assessment for compensation for the applicant’s injury, I take into account all of the matters referred to in these reasons. In assessing quantum of the entitlement to compensation I intuitively synthesise all of the material circumstances of the case. Compensation for pain and suffering is for the applicant’s pain, suffering and loss of enjoyment of life. I make an award of compensation for pain and suffering for the applicant of $150,000. I reduce that amount by $3,250, being the special financial assistance component of the VOCAT award. I also award $7,400 for counselling/medical expenses less the $3700 awarded by VOCAT.
48Pursuant to section 85B(1) of the Act, I order the respondent pay compensation in the sum of $150,450.
Costs
49The applicant’s counsel made a submission for costs on the following basis:
(a) The respondent has unnecessarily prolonged the proceeding through his conduct in twice reneging on a in principle settlement agreement;
(b) The applicant needed to be legally represented given the respondent engaged lawyers early and sought to settle the matter; and
(c) The manner in which the applicant has conducted himself today is such that the court ought find he has unreasonably contested the application, or conducted it in a manner designed to frustrate the award of appropriate compensation or exacerbate consequences of the claimed injury...[20]
[20]Applicant’s submissions dated 14 March 2023
50Section 85K of the Act provides each party must bear their own costs unless the court otherwise determines.
51In the case of AA (a pseudonym) v Cooper (Ruling),[21] Judge O’Neill considered section 85K of the Act and canvassed the various authorities.
[21][2015] VCC 233
52In summary, Judge O’Neill identified the following factors (which Judge Magee referred to in Shelton v Shelton[22], and I adopt in this case):
“(a)The legislation envisaged that applications for compensation pursuant to s85B of the Act be undertaken promptly, made at the end of a trial or plea, and generally, were designed as a cost effective and expeditious means by which victims who suffered injury could obtain compensation; however, there are applications which do not fall into this category.
(b) Generally, each party should bear their costs of the application, although there are circumstances where costs may be awarded.
(c)Circumstances which may justify the award of costs include the following:
(i) the need, in order for the application to be properly presented and prosecuted, for the retention of counsel;
(ii)the need for the provision of reports of medical and like practitioners, and for those practitioners to be cross-examined;
(iii)the complexity of the application, including in relation to issues such as causation, remoteness of damage, and the nature and extent of any injury claimed;
(iv)the conduct of the respondent, including where the respondent unreasonably contests the application, or conducts it in some other manner designed to frustrate the award of appropriate compensation or exacerbate consequences of the claimed injury.”[23]
[22][2023] VCC 801
[23]AA (a pseudonym) v Cooper (Ruling) [2015] VCC 233 at paragraph [17]
53In this case the respondent engaged lawyers and thereafter commenced a lengthy process seemingly aimed at settlement. It failed to materialise into an outcome due to the decisions of the respondent on two occasions to not settle on the basis of the in-principle agreement. Whether that course was deliberate or not, the chronology does not favour the respondent. It was clear despite not being a complex claim the applicant required legal representation especially given her mental injuries to negotiate with the respondent and to prosecute her claim given the way the respondent conducted his case. Had that been all that was relied upon it may have been a finely balanced decision to not award costs given the statutory position.
54However, when regard is hard to conduct of the respondent today in submissions as I have outlined above, I am satisfied his conduct was such that it exacerbated the consequences of the claimed injury. How the respondent’s case was conducted cannot in my view be attributed solely to inexperience with the legal system or lack of familiarity with defending an application. The applicant was put through a course of character attack that was at odds with the plea summary and the facts. The applicant was required to sit through all of it in silence, silently crying at points. This was despite attempts by the court to set guardrails on a number of occasions. The one saving grace has been that the applicant was not cross-examined. Even allowing for the fact the respondent is self-represented and, on his submission, just wanted to have his chance to have his say, he went far beyond that, and to such an extent that does warrant a costs order.
55Accordingly, I propose to award costs in the amount sought.
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