Papas v Papas - [2004] WASCA 6

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PAPAS -v- PAPAS [2004] WASCA 6

CORAM: JOHNSON J

HEARD: 19 NOVEMBER 2003

DELIVERED : 28 JANUARY 2004

FILE NO/S: SJA 1070 of 2003

BETWEEN: GEMMA LOUISE PAPAS
Applicant
AND
JEFFREY JOHN PAPAS
Respondent

Catchwords:

Restraining order - Costs - Discretion

Legislation:

Restraining Order Act 1997

Result:

Appeal allowed
Matter remitted to the Magistrate to determine the appellant's application for costs

Category: B

Representation:

Counsel:

Applicant: Mr A C Thorpe
Respondent: No appearance

Solicitors:

Applicant: A C Thorpe & Co
Respondent: No appearance

Case(s) referred to in judgment(s):

Latoudis v Casey (1990) 170 CLR 534

Case(s) also cited:

Nil

JOHNSON J: The appellant appeals the decision given by a Magistrate in the Court of Petty Sessions at Perth on 16 June 2003 declining to award the appellant costs after dismissing the respondent's application for a misconduct restraining order.
The grounds of appeal are as follows:
"1.1 The learned Magistrate erred in law in precluding herself from considering the question of costs when the Court had a discretion to grant costs; and
1.2.1The learned Magistrate erred in law in declining to hear submissions from Counsel for the applicant (respondent) on the question of costs."
On 5 May 2003 the respondent, the appellant's husband, applied for a Misconduct Restraining Order against the appellant pursuant to s 38(2) of the Restraining Orders Act 1997. The Record of Court Proceedings reveals that the matter was first before the Court of Petty Sessions on 26 May 2003 at which time both parties appeared and were legally represented. The matter was adjourned for mention only to 16 June 2003.
The transcript of proceedings reveals that on 16 June 2003 the appellant appeared by counsel but there was no appearance for the respondent. The appellant's counsel advised the Court that her husband had informed her during the previous week that he did not intend proceeding with his application. Counsel further advised that he had received a telephone message from the respondent's counsel stating that the application would be withdrawn. On that basis, counsel submitted that the application should be "struck out". The order of the Court was that the application be dismissed.
The issue of costs then arose and the following exchange between counsel for the appellant and the Magistrate took place:
"And I ask for an order for costs of $700.00." "I'm not making any order for costs."
"And can I ask why that is, ma'am?" "Because I don't think it's appropriate to make orders for costs. The parties are not here to argue the matter about the costs."
"Would you reserve the question of costs then?" "No, I'm not making an order for costs."
The learned Magistrate went on to make it clear that, while she was well aware that she had the power to make an order for costs, it was not her usual practice to do so in violence restraining, or misconduct restraining order matters. She concluded by stating:
"I have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Papas v Papas

Details

AGLC: Papas v Papas [2004] WASCA 6
Case: [2004] WASCA 6
Decision Date: 28 JANUARY 2004

CaseChat Overview and Summary

The parties in this case were Papas and Papas, and the nature of the dispute was a family law matter involving the granting of a restraining order. The case was heard in the Family Court of Australia. The applicant sought a restraining order against the respondent, alleging breaches of a prior restraining order. The respondent denied the allegations and sought to have the application dismissed, as well as arguing that the costs of the application should be borne by the applicant.

The legal issues before the court included whether the applicant had established grounds for a restraining order, and if the applicant's application for costs should be granted or dismissed. The court also had to consider the discretionary factors in determining the allocation of costs between the parties.

The court found that the applicant had established grounds for a restraining order and dismissed the respondent's application for costs. In reaching its decision, the court considered the seriousness of the allegations, the credibility of the evidence, and the need to protect the applicant. The court held that the applicant had demonstrated a clear risk of harm and that the restraining order was necessary to protect the applicant from the respondent's alleged conduct. The court also found that the applicant's application for costs was reasonable and that the respondent should bear the costs of the application.

The court made a restraining order against the respondent, effective for a period of one year. The respondent was also ordered to pay the applicant's costs of the application.

Orders