| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : VAN DER FELTZ -v- RISPOLI [2010] WADC 29 CORAM : SCHOOMBEE DCJ HEARD : 26 FEBRUARY 2010 DELIVERED : 16 MARCH 2010 FILE NO/S : APP 80 of 2009 BETWEEN : RIC VAN DER FELTZ Appellant
AND
MARIA RISPOLI
Respondent
Catchwords: Appeal from Magistrates Court - Misconduct restraining order - Appeal against costs order - Whether application was frivolous or vexatious - Rehearing - Whether error in principle by Magistrate Legislation: Restraining Orders Act 1997 (WA), s 34, s 69 Result: Appeal upheld
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Representation: Counsel:
Appellant : In person
Respondent : Ms H K Nore
Solicitors:
Appellant : Not applicable
Respondent : Cullen Babington Hughes
Case(s) referred to in judgment(s):
Allesch v Maunz (2000) 203 CLR 172
Ashmore v British Coal Corporation [1990] 2 QB 338
Butler v Bennett [2007] WADC 107
Cummings v Lewis (1993) 41 FCR 559
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
House v The King (1936) 55 CLR 499
Mudie v Gainriver Pty Ltd (No 2) [2003] 32 Qd R 271
Reelaw v Queensland Heritage Council (No 2) [2005] QPELR 456
Smith v Vivian [2002] WASCA 227
Walsgott v Maroochy Shire Council [2005] QPELR 521
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1 SCHOOMBEE DCJ: This matter concerns an appeal against a decision by the learned Magistrate in which he refused to grant a misconduct restraining order against Ms Rispoli and awarded costs against Mr van der Feltz, who was the applicant for the order. At the beginning of the hearing of the appeal Mr van der Feltz indicated that he no longer wished to proceed with the appeal against the order refusing to grant a misconduct restraining order, as Ms Rispoli had not shouted abuse at him since the hearing in the Magistrates Court. However, he wished to proceed with the appeal against the costs order.
2 Pursuant to s 69(2) of the Restraining Orders Act 1997 (WA) a court is not to order an applicant for a restraining order to pay costs to the respondent unless it considers the application to have been frivolous or vexatious. Mr van der Feltz submits that his application was not frivolous or vexatious.
Background facts 3 Mr van der Feltz and his business partner, Mr Stephan Matthaus, are the lessees of commercial premises in Osborne Park fronting on King Edward Street. The premises are owned by Ms Rispoli's mother. Mr van der Feltz and Mr Matthaus are sub-letting part of the premises to Slab and Garden City and a drivethrough coffee shop. Adjoining premises which are also owned by Ms Rispoli's mother are leased by Mr Anastasis Hatzianastsio, who is a self-employed mechanic. There is a driveway to a side entrance facing onto Guthrie Street which Mr van der Feltz, and particularly Slab and Garden City have been using for approximately two years. Mr van der Feltz is of the view that his lease allows him the use of that driveway and that this was negotiated with Ms Rispoli's brother. 4 Mr van der Feltz initially dealt with Ms Rispoli's mother and her brother in relation to issues concerning the lease. At some stage Mr Hatzianastsio contacted Ms Rispoli about a broken office window and when she came to see him he raised with her his concern that the driveway was being dug up by trucks driving over it. Ms Rispoli became involved in the issue regarding the use of the driveway and contacted Mr van der Feltz on a number of occasions by phone and also by letter. 5 Mr van der Feltz gave evidence that he received the first phone call in the evening while being at home with his wife and children in about July or August 2008. Ms Rispoli shouted at the top of her voice, told him that he had taken advantage of her mother, was stupid and should "fuck off" to Holland. Mr van der Feltz said that he received a number of (Page 4)
further calls, including some in November or December 2008 which were again at 8 or 9 o'clock at night and during which Ms Rispoli yelled at him and told him how "fucking stupid" and mean he was and how he was taking advantage of her mother. Mr van der Feltz said that there was no response to his letters that he sent to Ms Rispoli explaining that the lease was approved by her brother and by a real estate agent as well as a lawyer. 6 Mr van der Feltz gave evidence that in May 2009 Ms Rispoli repeatedly locked the gate which gave access to Guthrie Street. He said that he had not actually seen her lock the gate, but it was locked on a number of occasions. On one occasion Ms Rispoli called in the police on the basis that Mr van der Feltz was trespassing on the driveway. The police, understandably, could not deal with the matter and asked the parties to sort out their issues in an appropriate court hearing. 7 On 20 May 2009 the gates had again been locked. Ms Rispoli arrived on the premises together with two security guards, one of whom recorded the resultant conversation between her and Mr van der Feltz on video. 8 There appear to be two or three further occasions in May and June on which the gate was locked. After the proceedings in the Magistrates Court had been instituted Ms Rispoli gave an undertaking by letter to Mr van der Feltz that she would not seek to change or interfere with the locks on the gate facing Gurthrie Street pending the legal resolution of the dispute between her mother and Mr van der Feltz. 9 No proceedings have been instituted by either party to determine their respective rights regarding the driveway leading to the gate on Guthrie Street. Mr van der Feltz explained that there were proceedings on foot between him and the City of Stirling in the State Administrative Tribunal regarding development approval for the drive-through coffee shop established on the leased premises. Mr van der Feltz said that these proceedings became necessary after Ms Rispoli had told the City of Stirling that there was no approval for the drive-through coffee shop.
Evidence before the learned Magistrate 10 Mr van der Feltz represented himself before the learned Magistrate. He gave evidence dealing with the background to the dispute and the telephone calls, as I have outlined. Mr van der Feltz also played the video recording of the conversation between him and Ms Rispoli on 20 May 2009 before the Magistrates Court. In the video Ms Rispoli tells Mr van der Feltz that he has no right to the use of the driveway. (Page 5)
When Mr van der Feltz shows her the lease and tries to explain his position to her, she tells him "don't lie, mate", "don't be so fucking stupid, what's wrong with you", "you are talking riddles and bullshit", "you are too stupid and can't spell", "I am dealing with an idiot", "you are robbing an 85 year old woman" and "you are a foolish, stupid man". When speaking to Mr van der Feltz Ms Rispoli yells at the top of her voice, in an aggressive tone, and points her finger at him. Mr van der Feltz gave evidence that he found the language used to be offensive, intimidating and insulting. 11 Mr Matthaus also gave evidence that he received two phone calls in the evening from Ms Rispoli, that she was very loud, abusive and rude and that he did not get the opportunity to say much. During the second conversation he put the phone down. Mr Matthaus said that he found Ms Rispoli's conduct offensive. 12 Mr Michael Langer, a truck driver for Slab and Garden City gave evidence that Ms Rispoli approached him on one occasion and asked for Mr van der Feltz. Ms Rispoli was going on about various things. He was a bit shocked, but had a giggle because of her behaviour. Ms Rispoli said to him "you won't be laughing after I've finished with you". Mr Langer said that he felt offended by Ms Rispoli's conduct. 13 Mr Robert Craker, the yard manager of Slab and Garden City, also gave evidence that he met Ms Rispoli on one occasion at the leased premises. She started shouting very loudly and aggressively at him from about 20 to 30 metres away, commanding her chain and lock back. He said that he was taken aback and offended. 14 Mr Quentin Donald, the owner of Slab and Garden City, gave evidence that the side gate had been locked several times and that this created difficulty for the trucks coming to make deliveries to his business, as they could not turn around inside the premises. Mr Donald encountered Ms Rispoli on one occasion when he told her that she should remove the lock on the gate as he would otherwise cut it. Ms Rispoli immediately told Mr Hatzianastsio, who was also present, to call the police. Mr Donald said that Ms Rispoli seemed to him to be deranged. 15 Mr van der Feltz called Mr Hatzianastsio as a witness who explained that he had raised the issue of the use of the driveway with Ms Rispoli. He said that he did not feel threatened or offended by Ms Rispoli's behaviour. (Page 6)
16 Mr van der Feltz also called Mr Tony Italiano, the real estate agent, and Mr Enrico Rispoli, Ms Rispoli's brother, as witnesses. However, most of the questions directed to these two witnesses appear to have been geared to them saying that they had either approved the lease or condemned Ms Rispoli's behaviour which was relayed to them. Accordingly, most of the questions were disallowed by the learned Magistrate as eliciting irrelevant or hearsay evidence. 17 Ms Rispoli gave evidence explaining that she had a power of attorney from her mother to deal with the leased property. Mr van der Feltz gave evidence that he did not know that Ms Rispoli had a power of attorney, as her brother had told him otherwise. On the video recording, Ms Rispoli tells Mr van der Feltz that she has a power of attorney, but refuses to show it to him when he asks to read it. 18 Ms Rispoli admitted that she spoke to Mr van der Feltz on the phone on several occasions, that she was very upset, that she wanted the lease changed and that Mr van der Feltz told her that even if she spent a million dollars she and her mother could never change the lease. Ms Rispoli said that she was also upset because she had asked Ms Rispoli to only deal with her or her brother, but he kept on sending letters to her elderly mother and also went to her mother's house on four occasions. 19 She said that she had never locked the gates personally and a statement made by her in an affidavit that she had "attempted to chain the gates" was meant to mean that Mr Hatzianastsio had done so. 20 Ms Rispoli admitted that she could come across as a bit aggressive when she was upset and that she would use the "eff word" on occasions. She also admitted that she had telephoned Mr van der Feltz on occasion in the evening. 21 The police officer who attended the premises on one occasion together with Ms Rispoli also gave evidence and said that both Ms Rispoli and Mr van der Feltz had spoken to him in a civil manner.
Ambit of misconduct restraining order 22 Although Mr van der Feltz had asked in the written material placed before the learned Magistrate for a number of orders restraining Ms Rispoli from being involved with various matters arising from the lease, he stated orally at the hearing that he essentially required an order restraining Ms Rispoli from locking the gate and from shouting abuse. (Page 7)
23 Section 34 of the Restraining Orders Act 1997 provides that a court may make a misconduct restraining order if the respondent is likely to behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected. It is also necessary that the Court is satisfied that the granting of such an order is appropriate in the circumstances. 24 It is generally accepted that the requirement that the conduct must be "reasonably expected to be intimidating or offensive" imports an objective assessment of the evidence: Smith v Vivian [2002] WASCA 227 at [63].
The learned Magistrate's decision 25 In his reasons the learned Magistrate made it clear that he could not grant Mr van der Feltz any orders restraining Ms Rispoli from being involved with the management of the lease, from interfering with the quiet enjoyment of the tenants or from locking the gate. The learned Magistrate explained to Mr van der Feltz that the dispute between the parties regarding the terms of the lease had to be determined in another court and that it was not within the ambit of a misconduct restraining order to determine what the parties' respective rights were or to make any restraining order in that regard. 26 The learned Magistrate then turned to the question whether a restraining order should be made prohibiting Ms Rispoli from shouting abuse or contacting Mr van der Feltz other than by correspondence. The learned Magistrate acknowledged that Ms Rispoli had stated her position very forcefully on the video recording and had used the "eff word" occasionally. However, the learned Magistrate did not see anything offensive or intimidating in her behaviour. His Honour pointed out that Mr van der Feltz did not look intimidated and that he was a much bigger person than Ms Rispoli. The learned Magistrate said that some people might be offended by seeing ladies swearing, but a restraining order was not justified simply because a lady was swearing. 27 The learned Magistrate also came to the conclusion that there was nothing offensive or intimidating about the phone calls by Ms Rispoli and said that it was open to Mr van der Feltz to put down the phone at any time if the caller was loud and abusive. 28 His Honour referred to the evidence of Mr Hatzianastsio who said that he did not find Ms Rispoli's conduct intimidating or offending. (Page 8)
29 The learned Magistrate then made the comment that restraining orders should be used as "shields" and not as "weapons". He said that restraining orders were often used as a weapon where there were other proceedings on foot and that it would be damaging to Ms Rispoli in respect of such other proceedings if there was a restraining order against her. The learned Magistrate also came to the conclusion that the proceedings before him were being used by Mr van der Feltz as a fishing expedition. 30 The learned Magistrate therefore refused to make any misconduct restraining order. 31 Counsel for Ms Rispoli then asked for an order for costs on the basis that Mr van der Feltz's application had been frivolous or vexatious. The learned Magistrate agreed that that was the case. He relied on the undertaking by Ms Rispoli that she would not seek to change or interfere with the locks on the gate and also expressed the view that it was frivolous to bring an application for a restraining order because "a lady is using the word fuck when talking to you in her conversation". 32 His Honour also said that "some of the things" that Mr van der Feltz had claimed were "clearly vexatious" as there was never any scope for them being allowed. This was presumably a reference to the orders sought by Mr van der Feltz in his written submissions which included matters such as restraining Ms Rispoli from being involved with the management of the lease, from interfering with the quiet enjoyment of the tenants and their staff and from coming within 500 metres of the leased property. Other orders sought were a declaration that the owner had no possession of the driveway, that this was clear from the lease document, and to compel Ms Rispoli to inform the City of Stirling that approval had been granted by the owner for the drive-through coffee shop. 33 Counsel for Ms Rispoli submitted that he was entitled to the sum of $6,000 per day in court, as he was a senior lawyer, but his client was only seeking $3,500 in costs. The learned Magistrate then made a costs order against Mr van der Feltz in the amount of $3,500.
Review of Magistrate's decision on appeal 34 Pursuant to s 40(4) of the Magistrates Court (Civil Proceedings) Act 2004 an appeal from the Magistrates Court to the District Court must be decided on the material and evidence that was before the Magistrates Court. Rule 50(1) of the District Court Rules 2005 also provides that an appeal must be by way of reconsideration of the evidence (Page 9)
that was before the primary court, unless the parties otherwise agree. The intention of the Magistrates Court (Civil Proceedings) Act 2004 when read with the District Court Rules indicates that an appeal to the District Court is by way of a rehearing: Butler v Bennett [2007] WADC 107 at [10]. 35 This means that the appellate court can only exercise its powers on appeal where the appellant can show that the Magistrate made a legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]. The circumstances under which an appellate court may review a costs order, which is a discretionary order are even more limited. It is not sufficient that the appellate court would have imposed a different order if it had been in the position of the Magistrate. There must have been some error made by the Magistrate in exercising his discretion. Such an error may be constituted by the Magistrate relying on extraneous or irrelevant matters, mistaking the facts or not taking into account some material consideration: House v The King (1936) 55 CLR 499 at 504-505 and Cummings v Lewis (1993) 41 FCR 559 at 604. If such an error has been made the appellate court may exercise its own discretion in substitution for the Magistrate's based on the material that was before the Magistrate.
Costs order only where application frivolous or vexatious 36 Section 69(2) of the Restraining Orders Act 1997 (WA) provides that a court is not to order an applicant for a misconduct restraining order to pay costs to the respondent unless it considers the application was frivolous or vexatious. It seems from the learned Magistrate's reasons that he considered Mr van der Feltz's application to have been both, frivolous and vexatious. The decision that the application was frivolous and vexatious is part of the learned Magistrate's decision on costs and is therefore a discretionary decision which is subject to the principles set out in House v The King (supra): Mudie v Gainriver Pty Ltd(No 2) [2003] 32 Qd R 271 at [31]. 37 The words "frivolous or vexatious" are not defined in the Restraining Orders Act. In Mudie v Gainriver Pty Ltd(No 2) (supra) the interpretation of these words arose in the context of s 4.1.23(2) of the Integrated Planning Act 1997 (Qld) which also provides that costs should not be granted against an applicant unless the proceedings are frivolous or vexatious. McMurdo P and Atkinson J held at [35] that the words "frivolous or vexatious" should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or (Page 10)
staying proceedings for an abuse of process. Their Honours referred to The Macquarie Dictionary and noted that this defined "frivolous" as: 38 The word "vexatious" was defined as: "1. causing vexation; vexing; annoying …". 39 Williams JA also came to the conclusion that the words "frivolous or vexatious" should be given their meaning in everyday language and referred to The Shorter Oxford English Dictionary, which defines "frivolous" as follows: 40 The word "vexatious" is defined in that work as follows: 41 McMurdo P and Atkinson J came to the conclusion that, unquestionably, something more than a lack of success had to be shown before a party's proceedings could be said to be frivolous or vexatious. Their Honours noted, in reliance on Ashmore v British Coal Corporation [1990] 2 QB 338 at 352 that whether proceedings could be said to be frivolous or vexatious turned on the circumstances of the case and included public policy considerations and the interests of justice. 42 Williams JA held, in reliance on Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 that a claim could be described as frivolous or vexatious when it was groundless and had been an abuse of process in that the court's time and resources had been employed in exposing a groundless basis. (Page 11)
43 In Walsgott v Maroochy Shire Council [2005] QPELR 521 Wilson SC DCJ dealt with the same section regarding costs in the Integrated Planning Act 1997 (Qld) that was interpreted in Mudie v Gainriver Pty Ltd. His Honour summarised the interpretation given to the words "frivolous or vexatious" by the Supreme Court of Queensland Planning and Environment Court as follows: "15. Other cases show that before proceedings will be categorised in this way they must be clearly seen to be manifestly groundless (RB Williams Tractors Pty Ltd v Queensland (1998) QPELR 26) and, a party's contentions will not be so categorised as long as they were at least arguable, even if not overburdened with merit (O'Connor v Herberton Shire Council (1998) QPELR 485) and, a party's good faith, and the question whether the proceedings were intended merely to annoy or embarrass, are relevant issues (Australian Conservation Foundation Gold Coast Inc v Gold Coast City Council (supra); and, see Sinnathampy v Purcell (2003) QPELR 237; and, Dawson V Maroochy Shire Council (2004) QPELR 254)." 44 In Reelaw v Queensland Heritage Council (No 2) [2005] QPELR 456 Robin QC DCJ referred in the context of whether an application was frivolous or vexatious under the relevant provision of the Integrated Planning Act (Qld), to the fact that the applicant's witnesses had been genuine in the opinions that they held and the evidence that they gave.
Review of learned Magistrate's decision on costs 45 The learned Magistrate came to the conclusion that it was frivolous to bring an application for a misconduct restraining order on the basis that a lady had used the word "fuck" when talking to Mr van der Feltz in conversation. His Honour was also of the view that the application was vexatious because Mr van der Feltz had applied for orders where there was no scope of them being granted. 46 In my view the learned Magistrate omitted to take into account relevant evidence when exercising his discretion in respect of the costs order. The application for the misconduct restraining order was not only based on the allegation that Ms Rispoli had sworn at Mr van der Feltz. It was brought on the basis that her conduct during the telephone conversations in the evenings with Mr van der Feltz and also when she (Page 12)
visited the leased premises, particularly on the occasion captured on video, was insulting and offensive. A review of the evidence shows that it was not only a question of Ms Rispoli raising her voice and using swear words, she gratuitously insulted Mr van der Feltz by calling him "fucking stupid" and "an idiot" and told him that he was "talking riddles and bullshit" and was "stupid and can't spell". In addition Mr van der Feltz gave evidence that she told him on the telephone to "fuck off to Holland". The learned Magistrate made the comment that this was how business was conducted in Australia, but surely that would be the exception and not the rule. 47 It was also an irrelevant consideration taken into account by the learned Magistrate that if one did not wish to listen to a loud and abusive telephone conversation, one could merely hang up. Ms Rispoli appeared to be acting on behalf of her mother, the landlord, and Mr van der Feltz would have been ill advised to hang up on her and not to try and deal with the dispute between the parties. This was not a phone call by a nuisance caller that Mr van der Feltz could be expected to terminate by hanging up the phone. 48 The learned Magistrate also seemed to be unduly influenced by the fact that Mr van der Feltz is a much larger person than Ms Rispoli and did not look physically intimidated during the conversation taped on video (see at T18). 49 By reason of the errors committed by the learned Magistrate I should exercise the discretion regarding the costs order afresh on the evidence and the material that was before the learned Magistrate: House v The King. 50 If Mr van der Feltz had based his application for a misconduct restraining order only on Ms Rispoli's conduct during the telephone conversations and her visits to the leased premises, and if one puts aside for the moment any issues arising from the terms of the lease and the shutting of the gate, it can in my view not be said that such an application had no value, was not worthy of serious notice, had no reasonable grounds or was silly. The application had at least some merit. 51 It is not necessary for me to make a finding as to whether the learned Magistrate erred in refusing to grant a misconduct restraining order, as Mr van der Feltz has withdrawn his appeal in that regard. I am therefore not expressing any opinion as to whether such an error occurred and if so, whether I would have come to a different conclusion. But it is (Page 13)
necessary, for purposes of arriving at a decision whether the application was "frivolous or vexatious" to consider all the evidence before the learned Magistrate in order to decide whether the application had no reasonable grounds, was not worthy of serious notice or was silly. 52 In my view that was not a conclusion open on the evidence, because of the loud, abusive and insulting conduct by Ms Rispoli during the telephone conversations of which Mr van der Feltz gave evidence and during her visits to the premises as captured on the video recording. Mr van der Feltz was not cross-examined on the basis that this conduct did not take place and Ms Rispoli admitted that she will raise her voice when angry and use the "eff word". The lease dispute between the parties had not been resolved and it was to be expected that the parties would engage in future communications. 53 Further, Ms Rispoli's conduct was not limited to shouting and swearing. It included sustained and gratuitous insults and made any reasonable discussion about the disputed lease issues impossible. Mr van der Feltz gave evidence that he was offended and insulted by this conduct and his witnesses gave what appeared to be evidence in good faith that Ms Rispoli had conducted herself in a similar manner towards them. Accordingly, there was substantial evidence given in good faith about Ms Rispoli's conduct. Opinions may differ as to whether this type of conduct can reasonably be expected to be offensive and whether it should be restrained, but it can in my view not be said that the application was groundless, silly and had no merit. 54 The learned Magistrate also came to the conclusion that the application was vexatious, because there was no scope for the orders sought by Mr van der Feltz regarding the lease dispute. His Honour was clearly correct in explaining to Mr van der Feltz that he was not able to decide the rights of the various parties to the lease as part of the proceedings before him and that unless it had been decided who had access to the driveway, the learned Magistrate could not make any orders restraining Ms Rispoli from locking the gate. Some of the orders sought by Mr van der Feltz were clearly groundless in the context of the application for a misconduct restraining order, such as the order sought that Ms Rispoli inform the City of Stirling that the owner had given development approval for the drive-through coffee shop. 55 However, the learned Magistrate also became distracted by irrelevant considerations. He came to the conclusion that Mr van der Feltz was using the application for the restraining order as a fishing expedition (Page 14)
(T96) and as a weapon rather than as a shield (T95). The learned Magistrate also took into consideration that if a restraining order would be granted against Ms Rispoli, this would be damaging to her in the proceedings dealing with the lease dispute (T96). 56 None of these considerations are open on the evidence. There is no evidence that Mr van der Feltz asked questions in cross-examination of Ms Rispoli which could assist him in future proceedings dealing with the lease dispute and which could therefore be described as a "fishing expedition". There is also no indication on the evidence that Mr van der Feltz brought the application for a restraining order with the aim of gaining some advantage in the lease dispute. It was an ill-considered approach by Mr van der Feltz to expect the Magistrates Court to be able to deal with the lease dispute in the context of a misconduct restraining order. However, he was self-represented and it is apparent from the transcript of the proceedings in the Magistrates Court that he had difficulty understanding the limits of an application for a misconduct restraining order. He came to court with the aim of stopping Ms Rispoli from locking the gate providing access to Guthrie Street (T86). When he was told that the learned Magistrate could not to deal with the lease dispute, he accepted that. I can see nothing on the transcript which indicates that Mr van der Feltz was acting other than in good faith with his main concern being to stop Ms Rispoli from locking the gate and shouting abuse at him. 57 The learned Magistrate was also swayed in his decision that the application was vexatious by the fact that Ms Rispoli had given an undertaking by letter that she would not seek to change or interfere with the locks on the gate pending the legal resolution of the lease dispute. This is a matter which was obviously of importance in relation to the issue whether Mr van der Feltz was entitled to an order restraining Ms Rispoli from locking the gate. If the application had only been directed at stopping the locking of the gate and not also at the abusive and insulting conduct, there would have been merit in an argument that it was so misconceived that it was an abuse of process in that the court's time and resources were employed in dealing with a groundless claim. However, it is not necessary to express a view on that, as the application was also based on the abusive and insulting conduct in respect of which there was relevant evidence given by Mr van der Feltz and his witnesses and the video recording was tendered. Ms Rispoli did not give an undertaking that she would not shout abuse and insulting remarks at Mr van der Feltz again. (Page 15)
58 Magistrates often have to make decisions on the spur of the moment and because of their large workload do not have the time to consider the transcript, review the evidence and reflect on a particular decision. This is particularly applicable to costs orders. However, if the application in its entirety is considered together with all of the evidence that was provided to the learned Magistrate there is no basis for a finding that the application was frivolous or vexatious. 59 Accordingly the costs order should be quashed and no order be made as to costs.
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