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advised that he had received a telephone message from the respondent's counsel stating that the application would be withdrawn.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 already said I will not make an order for costs for either party. It is not my practice to do so. The parties are not here to argue it and I will not make an order for costs in matters of misconduct restraining order matters."
Section 69(1) of the Restraining Order Act confers on the court a general discretion "to make such orders as to costs as it considers appropriate". Section 69(2) further provides:
"If, after hearing an application for a violence restraining order, a court does not make a restraining order, the court is not to order the applicant to pay costs to the respondent unless it considers the application was frivolous or vexatious."
It can immediately be seen that the legislation has sought to draw a distinction between applications for violence restraining orders and misconduct restraining orders. Violence restraining orders have been identified as requiring special consideration when dealing with the issue of costs. I have not been taken to any of the Parliamentary Debates on the legislation which might give some specific indication of why such a distinction has been drawn. However, I consider it reasonable to conclude in the context of the Act as a whole that the prohibition on awarding costs against an unsuccessful applicant, other than in cases of frivolous or vexatious applications, evinces a legislative intention not to allow the possibility of a costs order to deter those at risk or in fear of physical violence from taking steps to protect themselves by exercising their rights under the Act.
On behalf of the appellant it was submitted that, in the case of misconduct restraining orders, costs should ordinarily follow the event. In the context of summary criminal proceedings, the proposition that the approach to be taken is that applicable to civil proceedings has been rejected by the High Court in Latoudis v Casey (1990) 170 CLR 534. Toohey J, at 543, considered it unnecessary to invoke the analogy between the award of costs in summary proceedings and the power to award costs in civil proceedings. Mason CJ observed, at 543:
"I am not persuaded that there is a complete analogy between the discretion to award costs in summary proceedings and the power to award costs in civil proceedings. For that reason I would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event."
Similarly, McHugh J concluded, at 568-9, that:
"Subject to any contrary legislative indication, costs in summary proceedings do not follow the event and that a successful defendant in such proceedings, like a successful party in civil proceedings, has no right to an order for costs."
Having considered the precise terms of s 69 of the Restraining Orders Act, I do not accept that the conferral of a general discretion as to costs and the failure to include misconduct restraining orders in s 69(2) necessarily leads to the conclusion that the approach taken to costs in civil actions should be the starting point when considering costs on applications for misconduct restraining orders under the Restraining Orders Act. Although the grounds for seeking a misconduct restraining order do not include the likelihood that the respondent will commit, or cause fear of the commission of, a violent personal offence, the types of conduct grounding the order are still of a most serious type. That is particularly so where the applicants are among the more vulnerable in our society.
The legislature has elected to confer a general discretion as to costs which should not, in my view, be approached as if the proceedings are analogous with civil proceedings. The discretion should be exercised by giving consideration to the protective nature of the jurisdiction and the circumstances of the particular case including, where an application has been withdrawn, the reason for withdrawal.
Accepting this to be the appropriate approach, such an approach must inevitably involve considering submissions made on behalf of the parties to the proceeding which might shed light on these and other relevant factors. A blanket approach of declining to award costs may be attractive in light of the protective nature of the jurisdiction but could only be appropriate where there exists some "standard" set of facts which would on each occasion justify the exercise of the discretion against an award of costs. As Toohey J emphasised in Latoudis v Casey (supra) at 564‑5:
"The relevant statutory provision .. confers the discretion; the task for the magistrate is to exercise it. And the discretion may be exercised in favour of a successful defendant or against a successful defendant; but the court must not simply apply an inflexible rule."
It is clear from the transcript that counsel for the appellant wished to make submissions which he considered relevant to the exercise of the learned Magistrate's discretion. In my view, in so far as those submissions proved to be relevant, he should have been allowed to do so.
For these reasons, I am satisfied that the learned Magistrate erred in law both by failing to exercise her discretion as to costs and in declining to hear counsel's submissions as to costs. The appropriate course is to remit the question of costs to the Magistrate for determination.

Orders

1.The appeal is allowed;
2.The matter is remitted to the Magistrate to determine the appellant's application for costs.