Smith v Boarder
[2022] TASSC 30
•16 May 2022
[2022] TASSC 30
COURT: SUPREME COURT OF TASMANIA
CITATION: Smith v Boarder [2022] TASSC 30
PARTIES: SMITH, Michael James Garfield
v
BOARDER, Cloe Jayne
FILE NO: 2701/2021
DELIVERED ON: 16 May 2022
DELIVERED AT: Hobart
HEARING DATE: 2 May 2022
JUDGMENT OF: Pearce J
CATCHWORDS:
Procedure – Civil proceedings in State and Territory courts – Costs – General rule: costs follow event – General principles and exercise of discretion – Applications under Family Violence Act2004 (Tas) – Costs of unsuccessful application to extend family violence order.
Family Violence Act 2004 (Tas), s 34.
Northern Territory v Sangare [2019] HCA 25, 265 CLR 164, applied.
Aust Dig Procedure [1477]
Magistrates – Orders and convictions – Costs – Discretion of court – Applications under Family Violence Act2004 (Tas) – Costs of unsuccessful application to extend family violence order.
Family Violence Act 2004 (Tas), s 34.
Northern Territory v Sangare [2019] HCA 25, 265 CLR 164, applied.
Aust Dig Magistrates [1226]
REPRESENTATION:
Counsel:
Applicant: J Peterson
Respondent: M Trezise
Solicitors:
Applicant: Peterson Legal
Respondent: Tasmania Legal Aid
Judgment Number: [2022] TASSC 30
Number of paragraphs: 21
Serial No 30/2022
File No 2701/2021
MICHAEL JAMES GARFIELD SMITH v CLOE JAYNE BOARDER
REASONS FOR JUDGMENT PEARCE J
16 MAY 2022
This motion raises for consideration the exercise of the discretion conferred by the Family Violence Act 2004 (the Act), s 34, to order a party to pay the costs of an application brought under the Act. On 12 October 2021 a magistrate, Ms T Jago, now a judge of this Court, refused an application made by the applicant, Michael Smith, that the respondent, Cleo Boarder, pay the costs of her unsuccessful application for extension of a family violence order. For ease of understanding, I will respectfully refer to the parties as Mr Smith and Ms Boarder. Mr Smith moves to review the magistrate's decision and contends that there should have been an order that Ms Boarder pay his costs of the application.
Mr Smith's contentions should be accepted. For the following reasons I am satisfied that the exercise of the learned magistrate's discretion miscarried and that a costs order in favour of Mr Smith should have been made.
The legislative provisions
The Act, by its long title, is an Act to "provide for an integrated criminal justice response to family violence which promotes the safety of people affected by family violence." Section 3 provides that, in the administration of the Act, the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations.
Under s 16, a court may make a family violence order (an FVO) if satisfied, on the balance of probabilities, that a person has committed family violence and that person may again commit family violence. Family violence is defined in s 6, and may include assault, threats, coercion, intimidation or verbal abuse, abduction, stalking and bullying. It may also include economic or emotional abuse or intimidation, breach of an order made under the Act or damage to property. An application may be made by a police officer, an affected person, an affected child, if the court is satisfied that the child is capable of understanding the nature of the proceedings, or any other person to whom leave to apply is granted by a court: s 15(2). An affected person is a person against whom family violence is directed and an affected child means a child whose safety, psychological wellbeing or interests are affected or likely to be affected by family violence: s 4. An FVO may include such conditions as the court considers are necessary or desirable to prevent the commission of family violence against an affected person or to protect any other person named in the order: s 16(2). An order remains in force for such period as the court considers necessary to ensure the safety and interests of the person for whose benefit the order is made, or until an order is made revoking it: s 19. The court making the order must consider the matters specified in s 18.
Section 20 provides for variation, extension and revocation of an FVO. Relevantly to this motion it provides that a person who may make an application for an FVO may apply for an extension. However an application for an extension may only be made with the leave of the court, and the court is not to grant leave unless satisfied that there has been a substantial change in the relevant circumstances since the order was made or last varied.
The power to award costs derives from s 34 which is in the following terms:
"34 Costs
The court hearing an application under this Act made by a person other than a police officer may, if the court thinks fit, order either party to pay such costs as the court considers reasonable."
The orders made and applied for
On 19 February 2020 a different magistrate, on an application made by Ms Boarder, made a family violence order directed to Mr Smith, her former partner. They were not married but had been in a family relationship as defined in s 4 of the Act. The order was made for a period of 12 months. It contained conditions which included that Mr Smith not assault or threaten or harass her, go to or near her home or go within 5 metres of her at her workplace unless for specified reasons. That latter condition was included because, it seems, they both were employed within the same hospital.
By application filed on 16 February 2021 Ms Boarder applied for an order that the FVO be extended for a further three years. The application was opposed. An interim order was made to preserve the status quo and the application proceeded to hearing before the learned magistrate on 7 July 2021. Both parties were represented by counsel. On 23 August 2021 her Honour refused leave, dismissed the application and revoked the interim order. In substance, the magistrate concluded that no change in circumstances had been demonstrated, and that there was insufficient evidence of any other circumstance which justified extension of the order. Her Honour found that, apart from delivery by Mr Smith to Ms Boarder not long after the FVO was made of a letter which contained nothing which could reasonably be construed as abusive, threatening, intimidating or coercive, there had been no contact with them throughout the period in which the order had been in force. Her Honour found no evidence of any other "untoward behaviour" towards Ms Boarder.
Upon pronouncement of the magistrate's decision counsel for Mr Smith applied for costs, by which was meant an order that Ms Boarder pay Mr Smith's costs of the extension application. The costs application was opposed. The magistrate heard argument on 5 October 2021. On 12 October 2021 her Honour refused the application and gave oral reasons for ordering that each party pay their own costs. Her Honour's findings and comments included that:
·the family violence jurisdiction was not a "costs neutral jurisdiction";
·the terms of s 34 conferred a discretion which was unfettered but which was to be exercised judicially with the result of the application being the "inevitable starting point";
·on proper analysis of the evidence "there was a grossly insufficient basis for the Court to be satisfied that the substantial change test had been met";
·"any application for a family violence order should always be subject to a proper and thorough analysis of the basis upon which the order is sought to be made before such an application is filed";
·despite having failed to demonstrate a substantial change of circumstances, Ms Boarder remained fearful of Mr Smith;
·although Ms Boarder's fears were "no longer supported by objective facts", "…ongoing fear, psychological harm, ongoing emotional damage is … well understood to be an often long term consequence of family violence and it is a consequence that operates upon the mind of the victim of family violence in many often misunderstood ways";
·the terms, purpose and context of the Act suggested that "individuals who have been impacted by family violence should not … be deterred from seeking protective orders they feel they need … because of the risk of a costs order being made";
·that there were factors which favoured an order for costs, but that the application should be considered "holistically", and "in light of the purpose and object of the Act, taking into account all of the matters, including the evidence I have heard on the hearing, the demeanour of the witnesses, in particular, Ms Boarder";
·although "in an ideal world there would have been a more thorough analysis given to the objective circumstances that exists before the application for extension of the family violence order was put before the Court", her Honour considered it relevant that she "could not conclude that the application was brought for any malicious purpose or was brought in bad faith".
The grounds of the motion to review
The learned magistrate was exercising a discretion. Thus, to succeed in this motion, the applicant must demonstrate error in the sense described in House v R (1936) 55 CLR 499 at 505. In Australian Coal and Shale Employees' Federation v the Commonwealth (1956) 94 CLR 621, Kitto J said at 627:
"... cases of the highest authority ... appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts."
The grounds of the motion to review assert that the magistrate erred in dismissing the costs application in that:
(a) she took into account irrelevant matters, namely:
(i) Ms Boarder's subjective fear and psychological state; and
(ii) the objects of the Act as stated in s 3; and
(b)she acted on a wrong principle by misdirecting herself that "a holistic approach, rather than a compensatory approach, should be taken to the issue of whether costs should be ordered."
Exercise of the discretion under s 34
The learned magistrate was correct to conclude that the discretion conferred by s 34 is unfettered. Her Honour also correctly recognised that the discretion was to be "exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation": Northern Territory v Sangare [2019] HCA 25, 265 CLR 164 at [24] per Kiefel CJ, Bell, Gageler, Keane and Nettle JJ.
The applicant's contention that the objects of the Act as stated in s 3 are irrelevant to the exercise of her Honours discretion is to be rejected. It was recognised in Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 [22], 96 [65], 120‑121 [134] and Northern Territory v Sangare at 172‑173 [24] that the judicial exercise of discretionary legislative power means that the power is to be exercised fairly and reasonably having regard to the subject matter, scope and purpose of the legislation. The stated object of the Act required the magistrate to treat the safety, psychological wellbeing and interests of people affected by family violence as the paramount considerations. Her Honour was entitled to take that object into account in the exercise of her discretion. In my respectful view, it cannot be said that the potential of an adverse costs order to discourage persons entitled to apply for an order protecting that person from family violence is definitely extraneous to the object the legislature had in view when enacting s 34.
However, the weight which was to be attached to such a consideration, although it may vary according to the circumstances of a particular case, was small. The power to award costs derives from legislation and is to be considered according to the terms of the grant of power. A legislature may decide to make no provision permitting an order for costs. A statute may provide for a power to award costs on a basis which departs from the "usual order" that costs follow the event, for example that each party is to pay his or her own costs subject to a contrary order which may be made in particular circumstances or according to stated considerations. Such provisions exist in equivalent legislation in other States. In Victoria there is a presumption that the parties will bear their own costs unless an application is frivolous, vexatious or in bad faith, or there are exceptional circumstances: Family Violence Protection Act 2008 (Vic), s 154. In Queensland, each party is to bear the party's own costs unless an unsuccessful application is malicious, deliberately false, frivolous or vexatious: Domestic and Family Violence Protection Act 2012 (Qld), s 157. Western Australia and New South Wales both prohibit costs orders against an applicant except where an application is frivolous or vexatious: Restraint Orders Act 1997 (WA), s 69; Crimes (Domestic and Personal Violence Act 2007 (NSW), ss 99, 99A. The terms of s 34 of the Act include no such control or limitation on the broad discretion it confers.
The applicant's contentions in each other aspect of the motion should be accepted. Ms Boarder's demeanour when giving evidence was, without more, an irrelevant consideration. The litigation is no less unmeritorious by regard to the personal characteristics of the unsuccessful party when giving evidence. Introduction of an assessment of the demeanour of the unsuccessful party into a determination of whether a successful party may be deprived of an order for costs introduces uncertainty and arbitrariness into the exercise of the discretion. There was no finding that the fear Ms Boarder expressed resulted from any conduct of Mr Smith while the FVO was in force. Her Honour did not find that Ms Boarder's application for an extension was brought for a malicious purpose or in bad faith. In Gibbons v Watkins [2005] TASSC 59, Evans J did not go so far as to say that good faith and bona fides are not considerations that may be taken into account in the exercise of the general discretion as to costs. His Honour considered that the weight to be given to them would depend on all the circumstances of the particular case. In Gibbons v Watkins, his Honour was considering an application for the costs of an unsuccessful application for a restraint order under the Justices Act 1959.
In any event, in Gibbons v Watkins, Evans J concluded that the material before the learned magistrate "provided no basis for him to depart from the ordinary situation in a case such as this which, consistent with the decision of the majority of the members of the court in Latoudis v Casey (1990) 170 CLR 534, is that ordinarily a successful defendant will get his or her costs." The learned magistrate referred to Gibbons v Watkins but distinguished the statutory context. I see no such distinction. But for the terms of s 3 in the Act, the statutory context is analogous. The purpose of both statutes is the protection of persons who may be the subject of improper conduct. The terms of the respective provisions giving power to award costs are identical.
In Gibbons v Watkins, Evans J referred to the reasons of McHugh J in Latoudis v Casey. That case concerned the costs of an unsuccessful summary prosecution. At 569, McHugh J stated:
"The fact that the informant has acted in good faith in the public interest or may have to meet the costs out of his or her own pocket is not a ground for depriving the defendant of his or her costs. Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings."
In Oshlack v Richmond River Council, the majority held that there was no absolute rule with respect to the exercise of discretionary power to award costs conferred by the Land and Environment Court Act 1979 (NSW) that, in the absence of disentitling conduct, a successful party was to be compensated by the unsuccessful party. In finding that it was within the proper exercise of the discretion of the trial judge to depart from the "usual rule", the majority in Oshlack distinguished the legislative context of Latoudis on the basis that, in Oshlack, the court was considering litigation concerned with public rather than private rights and with additional features characteristic of environmental protection litigation.
This case involves no such considerations. The discretion to be exercised by the learned magistrate under s 34 of the Act was in litigation concerning private rights and fell to be exercised in accordance with principles formulated to avoid arbitrariness and serve the need for consistency: Northern Territory v Sangare at [24]. In that case the Court stated at [25]:
"A guiding principle by reference to which the discretion is to be exercised – indeed, "one of the most, if not the most, important" principle – is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. For example, a successful defendant may be refused its costs on the ground that its conduct induced the plaintiff to believe that he or she had a good cause of action. But in the present case, there was nothing of this kind in the conduct of the appellant in relation to the litigation that might have weighed against the exercise of the discretion in its favour. There was no suggestion of any conduct on the part of the appellant, whether by unreasonable delay or a want of the cooperation required of litigants to ensure the 'just resolution of the real issues in civil proceedings with minimum delay and expense", that might have been taken into account to justify refusing the appellant an order for its costs.'" (Footnote citations removed.)
Application of the foregoing principles compelled the conclusion that Mr Smith was entitled to his costs of successfully resisting the application made by Ms Boarder for extension of the FVO. The opposition to the application was wholly successful. There was no conduct on his part which justified a different outcome. He was entitled to be compensated for the cost of the litigation which, according to the magistrate's findings and conclusion, should not have been visited upon him.
Result and orders
With respect to the learned magistrate the exercise of her discretion miscarried. The motion should succeed. It is agreed by the parties that I should make the order her Honour should have made. The amount of Mr Smith's costs is agreed. I order:
(a) the motion is allowed;
(b) the order made by the learned magistrate on 12 October 2021 is set aside;
(c)Ms Boarder is to pay Mr Smith's costs of the application for extension of a family violence order filed 16 February 2021 in the agreed sum.
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