O'Connell v Burgemeestre
[2023] VCC 2219
•11 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE APPEALS & POST SENTENCE LIST COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-22-0001
| CATHY O’CONNELL | Appellant |
| v | |
| VANESSA BURGEMEESTRE | Respondent |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2023 | |
DATE OF JUDGMENT: | 11 December 2023 | |
CASE MAY BE CITED AS: | O’Connell v Burgemeestre | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2219 | |
REASONS FOR JUDGMENT
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Subject:Appeal against order for costs made pursuant to Personal Safety Intervention Orders Act 2010 (Vic)
Catchwords: Legal, factual or discretionary error – Where appellant is self-represented litigant – Where complaint as to conclusion – Costs application
Legislation Cited: Personal Safety Intervention Orders Act 2010 (Vic); Vexatious Proceedings Act 2014 (Vic);
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Macedon Ranges Shire Council v Thompson [2009] VSCA 209;; Latoudis v Casey (1990) 170 CLR 534; Chugg v Pacific Dunlop Ltd (No 2) [1999] 3 VR 934;; Norton v Morphett (1995) 83 A Crim R 90; Schweppes Ltd v Archer (1934) 34 SR (NSW) 178; Whisprun Pty Ltd v Dixon (2003) 234 CLR 492
Judgment: Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr J A Willee | Asprey Lawyers |
HIS HONOUR:
Introduction
1 This judgment should be read in conjunction with the judgment handed down in proceeding AP-21-0823 which was heard at the same time as this matter. I have set out in that judgment the relevant provisions of the Act dealing with the nature of an appeal to this Court. I have also set out the reasons why this appeal is governed by the principles set out by His Honour John Dixon J in the matter of AAA v County Court of Victoria (“AAA”).[1] In addition I set out the principles which govern the identification of legal, factual and discretionary error. Those matters should be read into this judgment as applicable to the hearing and conduct of this appeal.
[1][2023] VSC 13
This Case
2 In this case the Appellant (“O’Connell”) appeals from a costs order made by Magistrate Goldberg in the Magistrates’ Court on 26 November 2021. By that order Magistrate Goldberg ordered the Respondent (“Burgemeestre”) to pay O’Connell costs. He fixed those costs at $5526.00.
3 In her appeal from this order O’Connell contends that:
“I wish to Appeal against me not being awarded all my costs from the Magistrates Court in the matter L11019799 now County Court proceeding AP-22-0001.”[2]
[2]Court Book (“CB”) 5; Exhibit A1
4 In essence, O’Connell seeks to have the order of Magistrate Goldberg set aside and for this Court to rehear the costs application.
Relevant background matters
5 This particular dispute arises from a long history of litigation between the parties. To set out that long history is futile because it does not bear on the decision the subject of this appeal or the grounds of appeal. It is enough to set out a brief history of matters which led to the allegedly impugned decision being made.
6 O’Connell and Tony Gale occupy adjoining properties. O’Connell lives in a unit on Lincoln Place, Windsor, and Gale and his partner Burgemeestre live in an adjoining unit on Lincoln Place, Windsor. In 2018, O’Connell obtained building approval to build on her site. The plans required a brick garage wall to form part of the boundary between the two properties. At some point, it is alleged, Gale erected a steel fence on the boundary which impeded construction of the brick garage wall. A fencing dispute arose. From that dispute, the parties fell into claim and counterclaim as to alleged poor behaviour of each other. Numerous applications for personal safety intervention orders were made.
7 As part of these applications Burgemeestre filed a Personal Safety Intervention Order (“PSIO”) application against O’Connell in April 2020 in the Magistrates Court. That was allocated proceeding number L11019799. Later that year, Burgemeestre submits that she sought to withdraw the application – though this is contested. In any event, in about February 2021 O’Connell filed an application pursuant to s19 of the Vexatious Proceedings Act 2014 seeking to declare Burgemeestre a vexatious litigant.
8 As it stood in February 2021, there were then two applications on foot, being:
(a) Burgemeestre’s PSIO application against O’Connell (though there is dispute as to whether it was withdrawn or foreshadowed that it would be withdrawn) (“the PSIO application”); and
(b) O’Connell’s application to declare Burgemeestre a vexatious litigant (“the vexatious proceedings application”).
9 As things progressed from February 2021, two things were clear. The first was that Burgemeestre’s application was to be withdrawn leaving the issue of whether O’Connell was entitled to costs alive. The second issue that became clear was that O’Connell’s application pursuant to the Vexatious Proceedings Act was incorrectly initiated and could not proceed. As a result the issue of Burgemeestre’s costs in that application was alive. In that state both matters came before Magistrate Goldberg for hearing.
10 In the course of the hearing of O’Connell’s costs application against Burgemeestre, a Dr Elliott was called. He was a psychologist who had treated Burgemeestre. Burgemeestre had initially sought to rely on evidence from Dr Elliot that she had been psychologically harmed by O’Connell’s actions. This evidence was to be called by Burgemeestre to support her PSIO application, however by the time the matter came before Magistrate Goldberg, Burgemeestre had clearly indicated an intention to withdraw her application. The only reason Dr Elliot was called was to support O’Connell’s application for her costs. Particularly his evidence was used by O’Connell to support her argument that “exceptional circumstances” existed in the PSIO application which enlivened her entitlement to costs against Burgemeestre pursuant to s111 of the PSIO Act.
11 A letter of Dr Elliot’s was the subject of intense dispute. That letter contained the following statement:
“Many of her psychological symptoms are a result of her unstable neighbour that keeps on harassing both herself and her partner.”[3]
(emphasis added)
[3]CB 482
12 It was contended that this sentence was a fabrication and that Burgemeestre had altered a letter of Dr Elliott’s to insert this sentence into the letter. The Magistrate found this had in fact occurred.[4] This was the basis for Magistrate Goldberg finding “exceptional circumstances” and awarding costs against Burgemeestre in the PSIO application.
[4]Court Book in proceeding AP-21-0823 (“CB-0823”) at 191 particularly at CB 199 (Transcript “T” 8-9), CB 363 T8-9, Exhibit A6 in proceeding AP-22-0001
13 As to the vexatious proceedings application, it was conceded by O’Connell’s barrister, Mr Carney, that it was improperly brought as no leave of the Court had been sought prior to making the application.[5] In this Court, O’Connell accepted that this concession had been properly made by her Counsel. As a result the Magistrate considered that O’Connell ought to pay Burgemeestre’s costs of defending the vexatious proceedings application.
[5]Ibid at 194 (T3 L27); Exhibit A6
14 At the hearing of both costs matters Mr Willee of Counsel appeared for Burgemeestre and Mr Carney of Counsel appeared for O’Connell. Submissions of each party were filed and received.[6]
[6]CB 593 – 614; Exhibits A3 and R2
15 The Magistrate delivered a ruling on 26 November 2021. That ruling has been transcribed and appears in CB 0823 at page 191.[7] In that ruling the learned Magistrate stated:
a)In the PSIO application that Burgemeestre pay O’Connell the sum of $5,526.00;
b)In the vexatious proceeding application O’Connell ought pay Burgemeestre’s costs, claimed in the sum of $8708.00;
However the learned Magistrate after considering both matters said “Reasonable has to be measured having regard to all the surrounding circumstances …”[8] As a result he ordered Burgemeestre to pay O’Connell $5526.00 and did not require O’Connell to pay Burgemeestre’s costs as claimed in the sum of $8,708.00.
[7] CB 363
[8] CB-823 204 (T13 L4-5); Exhibit A6
The Grounds of Appeal
16 By reason of the decision in AAA, O’Connell has to identify the legal, factual or discretionary error said to attend the Magistrate’s decision to award costs as he did. A court book of over 600 pages was filed. I took O’Connell to her Notice of Appeal and explained the requirements of AAA. I then went through the court book with her, document by document and had her explain why she wished to have the document admitted as evidence. Numerous documents were tendered. A list of exhibits is attached to this judgment. As O’Connell is self-represented I have set out in full each of the purported grounds of appeal and will address each one.
The first ground of appeal
17 The first ground is set out in the following manner:[9]
“The Learned Magistrate erred in exercising his discretion in awarding costs on 26 November 2021 in that he failed to take into [account] a relevant matter, in that having found the Respondent [Burgemeestre] had intended to mislead the Court in annexing a forged document [Dr Peter Elliott’s letter forged on his letterhead] to her Further and Better Particulars dated 14 September 2020 he failed to consider whether costs should be awarded on an indemnity basis such as to fully compensate the Appellant [Cathy O’Connell] by applying by analogy the principles set out in Macedon Ranges Shire Council v Thompson (2009) VSCA 209 at (13)-(14) as contended by the Appellant [Cathy O’Connell] in its written submission dated 6 October 2021 and took into account irrelevant matters, in that he arbitrarily failed to award the Appellant [Cathy O’Connell] her costs in relation to Court dates which were then adjourned off for non-finalisation of the cost[s] of on the basis that an application had been made in the hearing for an Order [against Burgemeestre] under the Vexatious Proceedings Act 2014.”
[9] CB 5-6; Exhibit A1
The first part of the first ground of appeal
18 From this ground I will first consider the first part of the first ground particularised by the statement:[10]
“... he failed to consider whether costs should be awarded on an indemnity basis such as to fully compensate the Appellant [Cathy O’Connell] by applying by analogy the principles set out in Macedon Ranges Shire Council v Thompson (2009) VSCA 209 at (13)-(14) as contended by the Appellant [Cathy O’Connell] in its written submission dated 6 October 2021 ...”
[10] Ibid (n 8)
19 At the outset it must be recalled that the Magistrate had made a determination that Burgemeestre’s actions in producing the altered letter of Dr Elliott to support her claim was an act of “bad faith”.[11] This assisted him in his finding that exceptional circumstances existed within the meaning of s111(3) of the Personal Safety Intervention Orders Act 2010 (Vic) (“PSIO Act”) such that costs ought to be awarded in favour of O’Connell. It is accepted on this appeal by Burgemeestre that this decision was properly made. The real issue is that in deciding to award costs the learned Magistrate did not consider whether such costs should be awarded on an indemnity rather than a standard basis. In Counsel’s submissions put before Magistrate Goldberg, O’Connell’s barrister referred to Macedon Ranges[12] as supporting an order that costs ought to be awarded on an indemnity basis. Those costs were said to total $45,088.80.[13] The Magistrate clearly had regard to Counsel’s submissions as to indemnity costs, as he referred to the outline of submissions.[14]
[11]CB-0823 201 at T10 L19; Exhibit A6
[12] Macedon Ranges Shire Council v Thompson [2009] VSCA 209 (“Macedon”)
[13]CB 611; Exhibit A3
[14]CB-0823 198 at T7 L19
20 However, the Magistrate did not enter into any debate in his reasons or grapple with whether indemnity costs ought to be awarded as sought. In his reasons he first set out why the behaviour of Burgemeestre constituted exceptional circumstances. He added that a further matter of her using photographs to support an assertion of trespass supported a finding of exceptional circumstances. He then entered into a discussion of the effect of O’Connell’s misconceived vexatious proceeding application. It was accepted by O’Connell’s Counsel that the application was not properly brought. O’Connell confirmed that was the case in the appeal before me. The learned Magistrate considered that broadly there should be costs consequences for the bringing of the vexatious proceedings application. He then entered into a debate as to how these two things ought to be balanced, and stated:
“The Court has a wide discretion as to costs. The consideration of any costs which may flow to the applicant may be properly taken into account when assessing what costs may be reasonably ordered in favour of the respondent. It is a fair and reasonable way to fix costs.”[15]
[15]CB-0823 202 at T11 L25-30
21 He then said:
“I am concerned that the sums claimed by way of quantum must be reasonable compensation as between the parties. That is the object of costs.”[16]
[16]CB-0823 204 at T13 L1-3
22 This perhaps exposes one of the issues in the conduct of matters in accordance with the PSIO Act; that is, whether the matter is of a criminal or civil character. In criminal matters there is the general recognition that a successful defendant in summary proceedings has an expectation of obtaining an order for reasonable costs.[17] Such costs are not to be equated with costs in a civil proceeding.[18] In determining costs it is appropriate for a Magistrate to take into account the reasonableness of the costs with an eye on the global amount.[19] The governing principle is one of reasonableness.[20] The civil scales may be used to gauge costs, but it is not required.[21]
[17]Latoudis v Casey (1990) 170 CLR 534 (McHugh J) (“Latoudis”) at 566
[18]Latoudis at 543
[19]Chugg v Pacific Dunlop Ltd (No 2) [1999] 3 VR 934 at 949
[20]Ibid
[21]Norton v Morphett (1995) 83 A Crim R 90 at 96-97 Phillips JA
23 Quite clearly the Magistrate considered these principles applicable in his order for costs.
24 In civil matters the usual order for costs is that they are awarded to the successful party on a party-party (standard) basis, paid according to the relevant Magistrates’ Court scale. A departure from that usual order occurs where costs are awarded on an indemnity basis.
25 Here O’Connell submitted, by inference, that the matter was one with a criminal character. This much can be seen from the use in the submission of her Counsel of the phrase “If the matter were a civil one…”.[22] This seems to me to clearly indicate O’Connell accepted the matter before the Court was criminal in nature and the principles applicable to the award of costs in a criminal proceeding were to be applied. Having so indicated, the submissions proceeded on the basis that principles applicable to indemnity costs which operate in the civil sphere could be brought in by analogy.
[22]CB 609 at [60]
26 By reason of that submission, it is not necessary to consider further whether the matter had the character of a criminal or civil proceeding and whether that affected the applicable costs principles. Rather the matter can be dealt with on the basis that was before the Magistrate; ie, that the costs rules applicable to criminal matters are applicable in this case and that reasonableness was the touchstone in awarding costs.
27 In this regard the learned Magistrate said:[23]
“That is, the application is governed by a separate process the Act does not operate. When considering this I say the application was brought by the respondent in the context of the proceeding and the rules governing costs should be considered. The court has a wide discretion as to costs. The consideration of any costs which may flow to the applicant may be properly taken into account when assessing what costs may be reasonably ordered in favour of the respondent. It is a fair and reasonable way to fix costs.
It attends to the interests of each of the parties reasonably and in the statutory context separately.”
[23] CB-0823 202-203 at T11 L21 – T12 L1
28 As can be seen from the extract from the Magistrate’s reasons above, he was alive to the guiding principle in the assessment of the two matters before him and to the overall costs consequences. The parties’ submissions in this Court did not take issue with the way the Magistrate balanced both matters. The only issue was over the amounts properly balanced against each other in the context of the overall state of both matters. For O’Connell that was the sum of $45,088.80. For Burgemeestre it was $8,708.00.
29 Turning back then to the first part of the first ground it will be recalled that it was particularised in the following way:
“... he failed to consider whether costs should be awarded on an indemnity basis such as to fully compensate the Appellant…”
30 From the matters I have set out above it could not be said that the learned Magistrate has failed to take into account a relevant consideration. He was alive to the claim made by O’Connell in her submission for costs of $45,088.80. He considered the issue of exceptional circumstances and his broad discretion to award costs by having regard to what was reasonable. He considered the vexatious proceedings application. He then took the costs of that application into account in his overall assessment. He very specifically considered what items might reasonably form the basis for reasonable costs associated with the PSIO application. He then exercised his discretion. All this demonstrated a careful consideration of the relevant matters that bore his exercise of his discretion. Weighing these matters he came to a decision.
31 Having set the above out, I dismiss O’Connell’s first part of her first ground of appeal.
The second part of the first ground of appeal
32 The second part of her first ground of appeal is set out in the following manner:[24]
“[the Magistrate] ... took into account irrelevant matters, in that he arbitrarily failed to award the Appellant [Cathy O’Connell] her costs in relation to Court dates which were then adjourned off for non-finalisation of the cost[s] of on the basis that an application had been made in the hearing for an Order [against Burgemeestre] under the Vexatious Proceedings Act 2014.”
[24] Ibid (n 8)
33 The first thing to note about this allegation is that the alleged irrelevant matters that it is said that the Magistrate took into account are not clearly identified. On one view it may be that the ground alleges that there should have been no account taken of the vexatious proceedings application in determining costs of the PSIO application. I am uncertain about whether this assumption can be properly made. This is because Burgemeestre clearly sought her costs associated with the vexatious proceedings application in her submissions before Magistrate Goldberg.[25] However in responding submissions filed by O’Connell’s Counsel on 6 October 2021 at [8-24], no specific argument was addressed as to how the Court should deal with the competing costs applications.[26] It would be improper for a party at this stage to raise as an error a matter which was not argued below.[27] Without particularistion of the alleged irrelevant matters I do not consider I am able to deal with this ground further.
[25]CB 0001 598
[26]CB 0001 468
[27]WhisprunPty Ltd v Dixon (2003) 234 CLR 492
34 There are two matters which arose in the appeal before me that were not the subject of debate and so I will not stay and consider. The first is whether the Magistrate had the power to balance costs awarded under the power of s111 of the PSIO Act against costs ordered under the general power to award costs in s131 of the Magistrates’ Court Act 1989 (Vic). The second is whether the decision on costs as was made here (which in part involved the award of costs in respect of the Vexatious Proceedings Act 2014) was properly brought. That is, was it an appeal brought under s96 of the PSIO Act or should it have been an appeal pursuant to s109 of the Magistrates’ Court Act and made to the Supreme Court. As these matters were not raised in the appeal, I put them aside.
35 As set out above, and can be seen from a fair reading of the ruling, the Magistrate considered both matters before him resulted in costs consequences, identified what those were and performed an assessment of the various court dates during which the matter was adjourned. He applied a test of reasonableness as his touchstone and awarded costs on that basis. The matters he took into account were all raised in O’Connell’s submissions. He was bound to have regard to them and I find that he did, given that he referred to the submissions in his ruling. He implicitly rejected the application for indemnity costs as he assessed costs between the two applications using reasonableness as his marker and assessed costs with reference to scale costs. It could not be said that he had regard to irrelevant matters in that process
Alleged Error of Law
36 The next ground is identified as an error of law:[28]
“The Judge failed to take into account a mandatory relevant consideration in that these proceedings had been dragged out up to a dozen times with multiple hearings because the Defendants had failed to settle costs back in December 2021 when they were told by Magistrate King on 2 December 2020 that he would not deal with the matter to withdraw and “the matter was to remain alive until the issue of costs was settled.” ”
[28] Ibid
37 I understand this to be a complaint that the Magistrate failed to take into account the assertion that proceedings had been prolonged due to the actions of Burgemeestre. During the appeal O’Connell purported to support this ground by reliance on a number of audio recordings. These were of various directions hearings and mentions before the Magistrates’ Court, preceding the ruling of Magistrate Goldberg. O’Connell sought to rely on these recordings to prove that Burgemeestre’s PSIO application was not withdrawn in December 2020 or 21 February 2021 and as such she had to endure numerous adjournments which increased her costs. She further submitted that even if the PSIO application was purportedly withdrawn in December 2020 as costs were not paid (or agreed) by Burgemeestre, O’Connell had to go to a contested hearing regarding costs and demonstrate exceptional circumstances by calling Dr Elliott.[29] This meant the matter was prolonged as various Magistrates adjourned the matter.
[29]CB 467 at [6]; Exhibit A4
38 The relevant audio recordings bear the following references:
(a) MFI A7 – 2 December 2020;
(b) MFI A8 – 25 February 2021;
(c) MFI A9 – 18 August 2021;[30]
(d) MFI A10 – 13 September 2021;[31]
(e) MFI A11 – 7 October 2021;[32]
(f) MFI A12 – 13 October 2021.
[30] This recording was received but no readable audio file is available.
[31] Ultimately, O’Connell did not seek to have this exhibit tendered.
[32] This recording was received but no readable audio file is available.
39 Burgemeestre objected to each of the audio recordings being tendered on the basis they were irrelevant.
40 I rule that these recordings are admissible as they go to a central part of O’Connell’s appeal; namely, the circumstances surrounding the purported withdrawal of Burgemeestre’s application.[33]
[33]These Exhibits A7 –A12.
41 Pausing there. The Magistrate stated in his ruling:[34]
“On 2 December 2020, the applicant [Burgemeestre] evinced an intention in open court to withdraw the application. On 25 February 2021, the application was formally withdrawn.”
[34] CB-0823 194 T3 L18
42 O’Connell made the point before Magistrate Goldberg in her submissions that there was no formal withdrawal of proceedings in accordance with Rule 4.08. The submissions then stated:
“Irrespective of whether the oral application has been made and determined ... the oral application by the respondent for her costs remains outstanding.”[35]
[35]CB 468 at [6]-[7]; Exhibit A4
43 Assuming that O’Connell is correct that the Magistrate was wrong in that Burgemeestre’s application was withdrawn, her own submissions make plain that the issue of costs remained outstanding and required determination. This involved the allocation of court time and the calling of Dr Elliott to give evidence – in order to demonstrate that “exceptional circumstances” existed so as to enliven the Magistrate’s power to award costs to O’Connell. In that circumstance, there is no additional prolongation of the application caused by the alleged failure of the Magistrate to find the application was withdrawn in December 2020.
44 Even if I were wrong about that, I find that it was clearly the case that the parties understood in December 2020 that Burgemeestre’s application would be withdrawn and this was confirmed in the 25 February 2021 mention. This finding is confirmed by the ground of appeal itself because it is implicit that as at December 2020 the substantive PSIO application had been resolved by withdrawal and the only issue outstanding was that as to costs. I consider that the Magistrate made the correct finding as set out above and proceeded on the correct basis.
45 A fair reading of the ruling shows that the particularised ground cannot be made out, given the Magistrate considered the relevant history of the matter, set out the relevant dates the matter came back before the Court, and noted that the matter was listed on “many occasions” before the Court.[36] In doing so, the Magistrate considered some of the attendances were in relation to both the vexatious proceedings application and the PSIO application. He clearly considered the listings of both matters were intertwined. The learned Magistrate then went on to consider the issue of what constituted reasonable costs. I consider that was sufficient to proceed to order the costs that he did. This is because he identified and considered the pertinent matters and weighed them in the assessment of what constituted reasonable costs. That was what was required in order to exercise his discretion.
[36]CB-0823 194 T3
46 For both reasons I reject O’Connell’s submission on this ground.
Alleged Error of Discretion
47 The next ground is identified as an error of discretion:[37]
“The Court accepted that this was a vexatious and frivolous proceeding filed in bad
faith by Vanessa Burgemeestre. Ms Burgemeestre significantly altered a letter from
Dr Peter Elliott her treating psychologist on his letterhead. This is covered under the
Crimes Act for dishonesty. It was a false document and perjury as it was an attempt
to pervert the course of justice. At very minimum it was “a make and use false
document.” The quantum of costs, attached in the bill of costs already being given to theDefendants awarded was manifestly inadequate in relation to the actual costs incurred by me and the matter went to a hearing.”[37] CB 6
48 I cannot determine what the alleged error is said to be. If O’Connell is alleging the Magistrate failed to have regard for the Burgemeestre’s filing of a false document, it is clear this was not the case. I dismiss this ground.
Alleged Factual Error (error of discretion)
49 The next ground is identified as a “factual error (error of discretion)”:[38]
“The general rule of law is that since this was a vexatious proceeding filed in bad faith that because I have won the case I be awarded all costs.”
[38] Ibid (n 8)
50 I understand this to be a complaint that once the Magistrate determined there was a “vexatious proceeding filed in bad faith” it mandated a finding she be awarded “all costs.” It is clear that when O’Connell uses the term “vexatious proceeding” she is referring to the PSIO application and denoting Burgemeestre’s behaviour as vexatious.
51 There is no authority cited for the proposition set out in this ground. It cannot be accepted. It was not put in the submissions filed on behalf of O’Connell by Counsel before the learned Magistrate. In fact, Counsel’s submissions fairly accepted that once exceptional circumstances had been found by the Court there is a discretion reposed in the Court as to what costs ought to be imposed. While the submissions argued for costs on an indemnity basis, the authority relied on made it clear that though circumstances may exist for the awarding of indemnity costs a judicial officer is faced with a question prior to the exercise of the discretion:
“The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.”[39]
[39] Macedon at [14]
52 Here I consider the Magistrate weighed the two matters before him, the reasons these matters had proceeded, and made relevant factual findings. He then exercised his discretion in balancing both applications before him. The situation bears some similarities to that dealt with by the Court of Appeal in Chugg. In that case the Magistrate was dealing with seven informations. The Defendant had been successful in six and the informant in one. The Magistrate made an order in favour of the informant but only for half of the costs sought. The Defendant appealed on the basis that it should have been awarded its costs given success in six of the informations laid. The Court of Appeal found the Magistrates approach was correct in that he looked at the costs generally in deciding to award the costs he did.[40]
[40]Chugg at 949
53 The approach taken by Magistrate Goldberg in this matter, seems to me consonant with the principles which the Court of Appeal approved in Chugg because he looked at the matters before him in a global sense and applied his discretion based on reasonableness in the award of costs.
54 In considering whether to find error in the decision of Magistrate Goldberg it is also necessary to bear in mind what was said by the High Court in Schweppes Ltd v Archer:[41]
“In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer's decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances ... but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case.” (emphasis added).
[41](1934) 34 SR (NSW) 178, 183-184
55 There is no error in the process adopted by the learned Magistrate. Here what is complained of ultimately is a complaint as to the amount of costs awarded. The circumstances in which I would interfere with the Magistrate’s discretion are not present, in that this case could not be considered an “extreme case”. Rather, the Magistrate was faced with a reasonably commonplace situation in that court; that is, with parties engaged in essentially cross-litigation which required global resolution in a just, efficient and timely manner. His ruling reflected that. I dismiss this ground.
56 For the above reasons I dismiss the appeal in this matter.
Costs
57In both matters Gale and Burgemeestre seek their costs be paid by O’Connell on an indemnity basis in the event her appeals fail. As O’Connell has failed in both her appeals to this Court, I turn to consider these submissions.
58The starting point for these submissions is as to whether the PSIO regime as to costs is applicable. The Respondents’ submissions seem to suggest, though it is not entirely clear, that s111(3) of the PSIO Act is applicable.[42] As a result in order for this Court to award costs, the Respondent submits that O’Connell would have to be found to have engaged in conduct which was vexatious, frivolous or in bad faith.
[42]See [13] of the Respondents’ submissions filed 5 December 2023
59Alternatively it seems, though it is unclear from the submissions, the respondent’s submit that the County Court Act general power as to costs applies and that they should be awarded their costs on an indemnity basis.
60Section 111 of the PSIO Act imposes a presumption that :…each party to a proceeding for a personal safety intervention order under…” the Act must bear their own costs of the proceeding. That presumption can only be displaced in the event there are “exceptional circumstances” or there has been conduct “…which was vexatious, frivolous or in bad faith…”.[43]
[43]Section 111(3)(a) and (b)
61In my analysis of the legislation it seems clear that s111 has application to both matters, AP-21-0823 and AP-22-0001. In AP-21-0823 O’Connell sought to demonstrate error in the Magistrates decision and then to have a PSIO imposed against Gale. To my mind though this is an appeal of the Magistrate’s order it is still obviously concerned with the imposition of a PSIO, because O’Connell seeks this Court to ultimately impose a PSIO against Gale and the appeal was brought under the PSIO Act.
62In AP-22-0001 O’Connell was concerned with the costs associated with the PSIO which Burgemeestre had brought against her. Though the substantive application was withdrawn the costs orders made by the Magistrate were intimately connected with that PSIO application. They could not sensibly be separated from that application and the way it was brought. This much is apparent from the fact that the chief witness who was to be called was Dr Elliot, who had treated the applicant for the psychological upset said to be caused by O’Connell’s behaviour and was initially said to have given evidence in support of the application. His evidence was still called in relation to the costs issue.
63For these reasons I would find that the facts of both matters on appeal bring them within the ambit of s111 of the Act in that they were “… a proceeding for a personal safety intervention order”. As a result the presumption that both parties bear their own costs applies.
64Further to this reasoning I consider that the decision in AAA supports that finding. In that case his Honour John Dixon J held:
The County Court’s appellate jurisdiction is focused on the decision of the Magistrates’ Court or Children’s Court and affords the County Court on appeal, the powers that those first instance courts could have exercised, under the same legislation empowering those courts…[44]
[44]AAA [2023] VSC 13 at paragraph [64], emphasis added.
65Though this comment was made in a family violence proceedings, for reasons set out above I consider it applies equally to the PSIO Act. I further consider this a clear statement that the PSIO Act regime continues to apply to appeals brought pursuant to s96.
66Given this finding as to the applicability of s111 it now falls to consider whether the actions of O’Connell in the appeals satisfy the tests in s111(3)(a) as constituting “exceptional circumstances” or s111(3)(b) as being “…vexatious, frivolous or in bad faith…”
67In coming to an assessment of O’Connell’s conduct I make it clear I am focused on the actions associated with the appeals in this Court. To consider the substantive behaviour said to ground the applications in the Magistrates Court or the conduct of the Magistrates Court proceedings would be to traverse ground considered and decided in the Magistrates Court or not properly ventilated in this Court. That course would be to subvert the proper appeal process, or to deny parties procedural fairness. An example of this arises at [7(b)] of the respondent’s submissions in relation to AP-21-0823 when they ask this Court to consider O’Connell’s termination of her participation in the Webex hearing before Magistrate Hodgson. That is said to ground a finding that the appeal to this Court was vexatious, frivolous and brought in bad faith. However, that conduct was the subject of factual findings by Magistrate Hodgson and that those constituted “exceptional circumstances” sufficient to award costs against O’Connell. For this Court to descend to make separate factual findings about the conduct and character of those findings is to risk alternate findings being made without any error being demonstrated.
68It was also submitted by the Respondent that O’Connell’s conduct on these appeals constituted behaviour that was vexatious, frivolous and in bad faith. This was said to be demonstrated by the numerous hearings required before the matter came on for hearing and the fact that so much material was filed by O’Connell and most was ruled irrelevant to the appeals. I reject that submission. The primary reason for the numerous hearings in this matter was the decision in AAA which created significant uncertainty in this court as to the conduct of appeals. Numerous directions hearings were called on the Court’s own motion to grapple with the conduct question and the obtaining of transcript. Similarly the parties had to re-cast their grounds of appeal as they could no longer proceed as a hearing de novo. The fact that O’Connell is a self-represented litigant dealing with this quickly changing landscape is also a factor to be borne in mind. Much of the material she sought to tender might well have been relevant in a de novo hearing but not on a broad appeal. Some latitude must be afforded to her in this unique evolving situation. I do not consider her conduct of the appeals to be capable of supporting a finding of being “exceptional” or vexatious, frivolous or made in bad faith.
69As a result of the above I find that neither of the s111(3)(a) or (b) are made out. In the result each party must bear their own costs of both appeals.
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LIST OF EXHIBITS
Appeal commencing 28 November 2023
Cathy O’Connell v Vanessa Burgemeestre
| Number and Identifying Mark on Exhibit | Short Description of Exhibit | Tendered By | Date tendered |
| APPELLANT’S EXHIBITS | |||
| A1 | Notice of Appeal (CB 5-9) | Appellant | 28/11/2023 |
| A2 | Certified Magistrates Court Extract (CB 16) | Appellant | 28/11/2023 |
| A3 | Respondent’s Submissions on Costs dated 4 October (CB 600-614) | Appellant | 28/11/2023 |
| A4 | Respondent’s Submissions on Costs dated 6 October 2021 (CB 467-471) | Appellant | 28/11/2023 |
| MFI-A5 | Applicant’s submission’s dated 28 September 2023 (CB 214-228) | Appellant | 28/11/2023 |
| A6 | Transcript of proceedings in the Magistrates Court before Magistrate Goldberg dated 26 November 2021 (191-298 of 0823 CB) | Appellant | 28/11/2023 |
| MFI-A7 | Audio recording dated 2 December 2020 | Appellant | 28/11/2023 |
| MFI-A8 | Audio recording dated 25 February 2021 | Appellant | 28/11/2023 |
| MFI-A9 | Audio recording dated 18 August 2021 | Appellant | 28/11/2023 |
| | *Please note: this exhibit was retracted by the Appellant | |
|
| MFI-A11 | Audio recording dated 7 October 2021 | Appellant | 28/11/2023 |
| MFI-A12 | Audio recording of 13 October 2021 | Appellant | 28/11/2023 |
| RESPONDENT’S EXHIBITS | |||
| R1 | Submissions of the respondent (CB 472-476) | Respondent | 28/11/2023 |
| R2 | Submissions of the applicant dated 6 October 2021 (CB 593-599) | Respondent | 28/11/2023 |
| R3 | Certified extract of the Magistrates Court regarding Costs Orders made on 26 November 2021 (CB 615) | Respondent | 28/11/2023 |
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