Pre-requisites to achieving a costs Order in DFVPA Cases in Queensland

Introduction

This article discusses eligibility for and the prospect of applying for the making of a costs Order in proceedings brought pursuant to the Domestic & Family Violence Protection Act (Qld) 2012.

My articles usually arise after experience in actual cases, and the genesis for this article is no different.

For background, assume there is a high conflict parenting case running in the Federal Circuit Court of Australia. Demonstrating how high the conflict is, the Father determined to commence an application for Protection Orders seeking a raft of Protection Orders against the Mother's parents (the Maternal Grandparents).

The Father persists with his application in a town some distance from the Maternal Grandparents and he was refused a Temporary Order on at least three occasions, including when instructing a Duty Lawyer to apply for one. Comments of a particular kind were passed by the Magistrate which touched upon whether the matter had merit.

At the Final Hearing, the Father informs the Court that he required no cross-examination and has failed to file an Affidavit (of Evidence in Chief) in line with the Court's directions. He is self-acting, but opens to the Presiding Magistrate that he has had legal advice during the proceedings and understands his rights.

A decision was made to dismiss his Application.

The Presiding Magistrate found that no act of domestic violence occurred. As decision-makers often do, the Presiding Magistrate determined that if she was wrong about that, she decides that the making of a Protection Order was neither necessary nor desirable in the case.

Having succeeded on each argument made on my clients' behalf, I asked for costs.

I was then on a path of (re)discovery and (re)enlightenment on the law of costs in DFVPA matters.

Eligibility Requirements

Eligibility for costs Orders involves getting beyond the general rule that each party shall bear their own costs. That rule can be departed from if a party is able to both satisfy several mandatory conditions as well as persuade the Court to exercise a discretion to award the costs if the mandatory conditions are present.

If you cannot satisfy any one of the conditions, you will not succeed, and there is no discretion to allow success. If you satisfy the conditions, discretion creeps and you will be in a position of having to convince the Judge or Magistrate that the circumstances warrant the award of costs.

Let's talk about the mandatory conditions, and for those who like to read along, these appear at Section 157 of the Domestic & Family Violence Protection Act (Qld) 2012 (click to be taken there).

The first mandatory requirement, is that the application is made against a party who brought an application. This means that the aggrieved or a cross-applicant are the only likely respondents to a costs application. The respondent is not on the hook, so to speak.

The second mandatory requirement, is that there must have been a hearing. This means a hearing on the merits of the application, not just a situation of a Temporary Order or a matter concluded either by settlement (consent orders or undertaking). Further, if an aggrieved withdraws the application, before a hearing proceeds and is determined, even if the application was significantly advanced towards the hearing, you will be ineligible for any costs.

The third mandatory requirement is that at the hearing, the application must have been dismissed.

The fourth mandatory requirement is that the dismissal, must be a dismissal on the grounds that the application is either malicious, deliberately false, frivolous or vexatious. In other words, at least one of those descriptors for the application, must be found to apply to the application made.

The final step is submitting on the exercise of discretion. Even after successfully submitting that each element and requirement is met, you still have the "may Order" hurdle to clear. You must convince the Judge or Magistrate that it is an appropriate step in all of the circumstances.

Discussion

A trap for young players, is the need to think carefully about cross-examination and submissions along the way, so as to later be in a position to address the Judge or Magistrate about what has happened and why the application for costs should be considered.

Not many DFVPA matters go to trial. The vast majority are the subject of an earlier withdrawal or resolution by consent or undertakings. Cost is a major factor in that.

If you do manage to represent a party whose matter goes the distance to hearing, you will need to seek as part of your submissions that the application be dismissed, and that attaching to the dismissal, is a finding that the reason for the dismissal met one of the fourth mandatory requirements. A Judge or Magistrate will need to be asked to make that finding and you will need to be ready to submit on those matters.

In terms of addressing the fourth mandatory requirement, which is a finding that the Application was either malicious, deliberately false, frivolous or vexatious:-

1. The Court only needs to find one of those adjectives applies in relation to the Application in order to proceed to exercise a discretion as to whether to make a costs Order;
2. Malicious has its ordinary meaning, which is that if you describe someone's words or actions as malicious, you mean that they are intended to harm a person or people or their reputation, or cause them embarrassment and upset [Collins Dictionary meaning adopted];
3. Deliberately false means that the material placed before the Court by the applicant contained a deliberate falsehood;
4. The terms frivolous or vexatious were considered by the Supreme Court of Queensland in the decision of Mudie v Gainriver Pty Ltd & Anor, where the Court of Appeal said, “[35] The words “frivolous or vexatious” are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process. By the time an application for costs is made, the court knows the issues which have been litigated whilst in interlocutory applications, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action. The Macquarie Dictionary defines ‘frivolous’ as ‘of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection. 2. Characterised by lack of seriousness or sense: frivolous conduct…’ and ‘vexatious’ as ‘1. Causing vexation; vexing; annoying…’. [36] Unquestionably, something much more than lack of success needs to be shown before a party’s proceedings are frivolous or vexatious. Although in a different context, some assistance can be gained from the discussion of the meaning of these words in Oceanic Sun Line Special Shipping Company Inc v Fay where Deane J states that ‘oppressive’ means seriously and unfairly burdensome, prejudicial or damaging and ‘vexatious’ means productive of serious and unjustified trouble and harassment, meanings apparently approved by Mason CJ. Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55. Those meanings are apposite here.[37] Whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy consideration and the interests of justice.”
5. As to the standard of proof, His Honour Judge Devereaux SC DCJ in RWT v BZX was asked to revisit a decision where a costs Order had been made on the grounds the application had been deliberately false and also vexatious. His Honour determined that it was sufficient if the application vexed the Respondent and His Honour went on to decline to disturb the costs Order. He also correctly identified that the determination of whether a particular application was malicious, deliberately false, frivolous or vexatious, was a determination to which the Briginshaw Test should be applied.

In my matter, the presiding Magistrate determined that the application was frivolous.

I had submitted each of the adjectives/descriptors had applied and given commentary detailing chronological things which had happened to guide the Magistrate.

Generally speaking the way in which the applicant had behaved, the way he used the proceedings as a tool rather than a shield and maintained the proceedings where they were unnecessary on any reasoning, were the key indicators for the determination.

At this point of your matter, hopefully a finding of one of the four key descriptors has been made out and is accepted as applying. You should be most of the way there in terms of having the discretion exercised in your client's favour. If not, you will need to address why the discretion should be exercised. Addressing the cost, time and effort, the use of Court resources, the opportunities to curtail the mischief of the proceedings which were available to the applicant and the competing financial positions and motivations, are key target areas.

As to the quantum of costs, the costs will never really place your client in the position of where they financially stood before the unmeritorious application was advanced, but because costs Orders in that jurisdiction are rare, the fact that a costs Order was achieved, is something that speaks volumes about the maker of the unmeritorious application.

Another thing to remember is that there is a specific costs schedule to use, being Schedule 1 to the Domestic & Family Violence Protection Rules 2014 (click to review it). People have previously fallen into the trap of looking to the UCPR or the Justices Act to find costs schedules.

The DFVPR Sch 1 schedule permits the recovery of costs on necessary attendances by lawyers at the rate of just $258/hr. To give an indication, at the end of a 1 day trial listing, the use of the schedule permitted my client to claim less than $6,000.

Recovery of the amount of a costs Order can be achieved by asking the Court to issue a copy of the Order and registering it in the Magistrates Court of Queensland. From there you have your usual recovery and enforcement remedies, the best of which is often an oral examination and to go from there.

Thanks for reading,

Dean Evans