District Court New South Wales Medium Neutral Citation: Ferris v Atherton (No 2) [2014] NSWDC 273 Hearing dates: 27 May 2014 Decision date: 27 May 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: (1) Appeal allowed. (2) The respondent's application for costs is dismissed. (3) Each party is to pay their own costs of the appeal. Catchwords: CRIMINAL LAW - application for apprehended personal violence order – question of test to be applied - not frivolous or vexatious - not without substance - respondent's application dismissed pursuant to s99(3) of the Crimes (Domestic and Personal Violence) Act 2007 – weighing of various discretions and considerations - if application found to be frivolous or vexatious, applicant to pay one third of the respondent's costs Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007, ss 99(2), 99(3) Criminal Procedure Act 1986, s 213(1) Cases Cited: Cunningham v Cunningham [2012] NSWSC 849 Garde v Dowd [2011] NSWCA115 Latoudis v Casey (1990) 170 CLR 534 Mahmoud v Sutherland [2012] NSWCA 306 Mahmoud v Sutherland [2013] NSWDC 140 Ohn v Walton (1995) 36 NSWLR 77 Category: Costs Parties: Peter James Ferris (applicant) Jed Atherton (respondent) Representation: Counsel: S Brennan (applicant) B Rosic (respondent) File Number(s): 2013/00151082 Decision under appeal Court or tribunal: Local Court, Downing Centre Date of Decision: 28 October 2013 Before: Stapleton LCM File Number(s): 2013/00151082 Judgment 1. I now turn to the question of the costs of the appeal which I have just dealt with. Mr Brennan is also appealing against her Honour's order that his client pay Mr Atherton his costs as agreed or assessed. 2. There is a preliminary issue about the test which should be applied. In my judgment in Mahmoud v Sutherland [2013] NSWDC 140, I referred to the decision of the Court of Appeal in Mahmoud v Sutherland [2012] NSWCA 306. The reason I referred to the Court of Appeal's decision was that the Court of Appeal in that case, which involved an application for a apprehended personal violence order, determined the question of costs in accordance with s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007. The test applied by their Honours in that case would require me not to award costs against Mr Ferris "unless satisfied that the application was frivolous or vexatious". 3. For reasons which I set out in my judgment in Mahmoud v Sutherland, I respectfully suggested that the Court of Appeal had overlooked the significance of the word "domestic" in s 99(3) of the Crimes (Domestic and Personal Violence) Act. But, in accordance with precedent, I am obliged to follow the Court of Appeal's decision. 4. Mr Rosic urges me to conclude that the application by Mr Ferris was both frivolous and vexatious. He argues that it was vexatious because it was motivated by other litigation not directly connected with these proceedings. The other litigation concerned an industrial issue. Mr Brennan argues that such an alleged motive was never aired nor had his client had any opportunity to refute it. I think Mr Brennan is right in that regard. I do not regard the application as being vexatious. 5. Mr Rosic took me to the judgment of Button J in Cunningham v Cunningham [2012] NSWSC 849 where his Honour helpfully considered the meaning of "frivolous or vexatious" at [63]. Mr Rosic particularly relied upon the reference to a matter being "without substance". I do not regard Mr Ferris' application as being frivolous. The full expression quoted by Button J was "without substance or groundless or fanciful". 6. Mr Ferris put on evidence in the form of statements by him and his wife to the effect that these calls had been made. For reasons that I have given, I did not accept, on the balance of probabilities, that the caller could be shown to be Mr Atherton. However, in my opinion, the application was far from being without substance or groundless or fanciful. The evidence was there before her Honour and before me. A determination was made - based on its weight and persuasiveness - against Mr Ferris. 7. In the event that I am wrong about the test being whether or not the application was frivolous or vexatious I would determine it in accordance with s 99(2) of the Crimes (Domestic and Personal Violence) Act "in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986". Counsel agree that the relevant provision is s 213(1) of the Criminal Procedure Act which provides that a "court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court for payment to the accused person if the matter is dismissed or withdrawn". The "amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable". 8. Whether or not I make an order is a matter for my discretion. Guidance can be obtained from the High Court's decision in Latoudis v Casey (1990) 170 CLR 534. The Court of Appeal considered that case in Ohn v Walton (1995) 36 NSWLR 77. Gleeson CJ observed (at 79) that the "point of Latoudis v Casey is that the purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made". His Honour went on to observe that when "legislation confers a power to order costs it is, in the absence of any contrary indication, to be understood as conferring a power to be exercised for that purpose". His Honour went on to say the following - "Two things follow: "1. The usual rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for costs incurred, in the absence of grounds connected with the charge or the conduct of the proceedings which make it unjust or unreasonable that there should be such reimbursement. 2. The test of whether an order for costs should be made against an unsuccessful plaintiff or complainant, is not whether he or she has done anything to warrant punishment. It is whether, in the circumstances, the defendant or respondent should be compensated". I respectfully adopt those observations in approaching the decision in this case. 1. Mr Brennan points out, following from my earlier judgment, that her Honour misconceived the test which her Honour was to apply. I think that there is some force in that argument. As I observed, the case was not determined in accordance with the appropriate legal parameters. Mr Brennan in addition argued that his client was not heard. I think there is less force in that argument because his client had an opportunity to be heard. As I earlier observed, I think - because of the haste of the proceedings - that it may have been overlooked that a point should have been taken about the sufficiency of proof identifying the caller. Mr Brennan pointed out that his client, when he took out the application, was unrepresented. Mr Brennan had come into the case at a later stage. 2. Mr Rosic, on the other hand, pointed out that his client was successful. It was obvious from the evidence that identification was a central issue. Leave was sought and refused. Mr Ferris ought to have complied with the Practice Note and the Rules. Her Honour made a similar observation. 3. As to Mr Brennan's point about the incorrect legal parameters along which the case proceeded, he pointed out that the outcome was correct and it did not matter so much that her Honour was not assisted by reference to the correct test. 4. There was, indeed, non-compliance with the Practice Note. That has been a significant basis of my decision. On the other hand, there was some misapprehension about the impact of the Practice Note. I need to take into account that Mr Ferris was unrepresented at the earlier stages. I need also to take into account the fact that Mr Ferris made use of the legislation because of his apprehension that he might be exposed to personal violence. The Act is available for use by members of the public to deal with such an apprehension. Section 10 of the Act points out that its object "is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship". It emphasises that it is a means ensuring that access to courts "is a safe, speedy, inexpensive and simple as is consistent with justice". 5. I need to take into account on the other hand that Mr Atherton has been brought to Court and needed to be represented in these proceedings which ultimately proved unsuccessful. 6. Weighing these matters up, it seems to me that Mr Ferris should bear some part of the costs of Mr Atherton. He has brought him to Court and required him to defend the application. On the other hand Mr Ferris has made use of legislation designed to assist with his sense of personal security. As it turned out, the proceedings were not "inexpensive and simple" as is consistent with justice. Her Honour was not assisted as much as she could have been by Mr Rosic on behalf of Mr Atherton. Although Mr Atherton has been ultimately successful, I do not think he should be compensated 100% for his costs. 7. In the circumstances I propose to make an order similar to the one which her Honour made and which her Honour said that the Court of Appeal had regarded as appropriate in Garde v Dowd [2011] NSWCA115, but adapted to reflect my opinion about the extent to which Mr Ferris should pay Mr Atherton's costs. 8. My order is that Mr Ferris pay one third of Mr Atherton's costs as agreed or assessed. HIS HONOUR: Anybody seeking a costs order or anything for today? Anything else? BRENNAN: I won't trouble the Court with submissions, but I think I should seek it, having largely succeeded. I think it's inherent of the structure what your Honour just said, but that order to pay a third is only if it goes to the Court of Appeal and-- HIS HONOUR: Well I've said that if the correct test is, as the Court of Appeal said, frivolous and vexatious then you have succeeded. I'm sorry, you are quite right-- BRENNAN: Just to make it clear that that's provisional. HIS HONOUR: No, thank you, you are quite right, Mr Brennan, I will revise what I have said. 1. I just made an order. I withdraw that order, because of what Mr Brennan has just said. I overlooked the fact that I was considering this way of determining the costs question only in the event that I am wrong on the test being frivolous and vexatious. For the reasons that I have given, were I to determine the costs in the alternative way proposed I would order that Mr Ferris pay one third of Mr Atherton's costs as agreed or assessed. So that is an opinion rather than order. 1. The order is that Mr Atherton's application for Mr Ferris to pay his costs is refused. HIS HONOUR: I think that's right isn't it? ROSIC: It is, your Honour. HIS HONOUR: Yes, because I have refused it on the primary test, but if I am wrong then I have indicated what my position would be. Anything else? BRENNAN: I do apply for costs for today, your Honour. ROSIC: So do we then. The appeal was dismissed, an order wasn't made so we've been wholly successful in respect of that. HIS HONOUR: Yes, but I think each party should pay their own costs. ROSIC: May it please the Court. 1. Finally, each party is to pay their own costs of this appeal. ********** Amendments 19 February 2015 - Appeal details appended to coversheet . DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2015