Breen v Rose

Nature of the appeal

1. Section 84(2)(b) of the Act provides an appeal as of right from the decision of a magistrate to make a costs order pursuant to s 99 of the Act. The appeal is to be conducted in the same way as a conviction appeal pursuant to the Crimes (Appeal and Review) Act 2001, with such modifications as are prescribed by the regulations.
2. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31];
3. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22];
4. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
5. An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
6. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
7. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).
8. Section 99 of the Act relevantly provides: (1) In this section-- "professional costs" means costs relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court (but not court fees payable to a court). (2) Costs, other than professional costs, are not to be awarded in apprehended violence order proceedings. (3) A court may, subject to section 99A, award professional costs in apprehended violence order proceedings to the applicant for the order or decision concerned or the defendant in accordance with this section. (4) If professional costs are awarded against a person under this section, the costs must be paid by the person to the registrar of the court, for payment to-- (a) the defendant, in the case of costs awarded against an applicant, or (b) the applicant, in the case of costs awarded against a defendant.
9. Section 99A of the Act provides: (1) A court cannot, in apprehended violence order proceedings, award professional costs against an applicant who is a protected person in respect of the order unless satisfied that the application was frivolous or vexatious.
10. The words "frivolous or vexatious" are well known to the law and import a high degree of inappropriateness in a cause of action, approaching an abuse of process. A matter is frivolous if it is without substance, groundless or fanciful. A matter is vexatious when it lacks bona fides and is hopeless and tends to cause the opponent unnecessary anxiety, trouble and expense: Cunningham v Cunningham [2021] NSWSC 849 at [63] (Button J).

Analysis of the Magistrate's Decision

1. The magistrate found that the video evidence presented by the appellant had been modified by him, in a way that was not known to his legal representatives before it was presented to the Court. It appears that a video file from a CCTV camera and the sound from a mobile phone recording were merged in an attempt to dub the audio recording over the video footage.
2. The magistrate had regard to the separate files. She was later satisfied that the video accurately depicted what had occurred, although it was not clear footage. She was not satisfied that the video footage showed that the parties had "rushed together" in a way that supported the appellant's expressed fears.
3. The magistrate stated that she had "grave concerns" about the way the evidence unfolded about the merging of the files. She found that evidence and the way the appellant answered questions to reflect poorly on his credit. She noted that there was no medical evidence to support that he suffered pain in his arm caused by the incident that she saw on the video.
4. Further, the magistrate found that in his evidence the appellant failed to immediately concede that he had merged the files, before eventually accepting that he did.
5. The magistrate took into account the video footage, the fact that time had elapsed between the incident and the hearing and that the Supreme Court proceedings had progressed in coming to her decision. She concluded that on all of the evidence that she should dismiss the application because: 1. the appellant did not have a reasonable basis to fear the respondent; 2. she rejected his evidence to that effect; and 3. the conduct complained of, which I interpolate was what she saw on the video, was insufficient to warrant the making of an order.
6. The respondent then made an application for costs and submissions were made by both parties.
7. In her judgment on the costs issue, the magistrate stated: In terms of whether or not [the appellant's application] was frivolous, there are some matters that were outlined in it, the detail was lacking, there were certain incidents that were outlined and I have made findings as to whether I accept that or not, and in terms of vexatious I have been taken to what the definition of vexatious is in the Vexatious Proceedings Act. Whilst it is a matter that I have found that there was not a basis to make an order, there nevertheless is something that caused concerns. There have been interactions which I accept have been unpleasant between the parties which have been going on. What has been put to me is that it was frivolous or vexatious to continue running the proceedings in circumstances where the Supreme Court had intervened, a situation where [the appellant] and his partner had sought interlocutory orders in relation to the resolution of the issues ,,,as to who would have access to the inclinator and when. What I am satisfied of (is) that by the time the proceedings finished in this Court there was nothing left to be resolved. The issues were being addressed by the Supreme Court and what [the appellant] relied on…the ground the application…was not established on the evidence, by the time the proceedings were finished in my view it was vexatious to continue those proceedings. (underlining added)
8. The magistrate then indicated that she would make an order from the date that the application was made to the Supreme Court to regulate the use of an access to the inclinator. After hearing further submissions, the magistrate ordered that the appellant pay the respondent's costs of the AVO proceedings from 13 April 2022, being the day after the appellant's cross-claim was filed in the Supreme Court.
9. Respectfully, I have come to the conclusion that the magistrate erred in finding that the proceedings were vexatious for the reasons that follow.
10. In the present proceedings, the appellant sought relief under the Act restraining the respondent for a period 24 months from assaulting, threatening, stalking, harassing, intimidating him or any person he was in a domestic relationship with. He also sought a non-contact order, except through the parties' lawyers. The basis of the orders sought, was the interaction between the appellant and the respondent that was alleged to have occurred on 21 May 2020.
11. The subject matter of the AVO proceedings were not accurately described by the magistrate as "who would have access to the inclinator and when", which was also an oversimplification of the Supreme Court proceedings.
12. The magistrate did not find that the incident on 21 May 2020 had been the subject of any relief sought in the Supreme Court or was evidence led in the Supreme Court. There was no evidence before me of either of those matters.
13. At the relevant time, the appellant had not sought any relief against the respondent in the Supreme Court and the respondent was not a party to those proceedings. The basis of the orders sought by the appellant in the Supreme Court cross-claim presumably arose because the parties to those proceedings were owners of neighbouring properties.
14. The only place that the incident of 21 May 2020 was being adjudicated on was in the Local Court.
15. Further, the filing of the Supreme Court cross-claim by the appellant did not render the AVO proceedings otiose. The mere filing of the cross-claim did not mean that the appellant would be entitled to any relief. I do not know what relief was sought in the cross-claim or how closely it was reflected in Slattery J's orders of 1 August 2022.
16. I am also not satisfied that the orders made by Slattery J on 1 August 2022, rendered the AVO proceedings otiose. The orders made were not directly made against the respondent. They were made against Ms Clough and provided that she was restrained from certain activities including through her servants or agents, which probably included the respondent. None of the orders made referred to the incident that occurred on 21 May 2020 or granted similar relief to that sought in the AVO proceedings.
17. In all of the circumstances, the Supreme Court proceedings were irrelevant to the disposition of the AVO proceedings, including the making of the appropriate costs order, and by considering the Supreme Court proceedings the magistrate took into account irrelevant considerations in making the costs order that she did.

Consideration

1. I will now turn to consider the respondent's contentions that the costs order was justified for other reasons being: 1. there was no evidence before the Local Court that the appellant had fears that justified the making of an order under the Act; and 2. the appellant tampered with evidence.

The no evidence point

1. The respondent's first contention was that the appellant's case was "doomed to fail" on the basis of the evidence contained in his written statement filed pursuant to the Local Court's direction and that his attempt to require the respondent to give evidence was contrary to authority.
2. Before the Local Court and on appeal, the respondent argued that the written statement filed by the appellant which was dated 2 years prior to the hearing before the Local Court was objectionable and that large tracts of it should be rejected.
3. The magistrate did reject a significant amount of the appellant's written statement and granted leave to lead some oral evidence relating to some of the objections.
4. The appellant then, unsuccessfully, tried to then call the respondent as a witness in the proceedings. Whilst that attempt may have been hopeless, a matter which is unnecessary to decide, I do not accept that it rendered the proceedings vexatious. At worst, the attempt was an ill-informed tactical decision, it was not alleged to be mala fides or otherwise relevantly oppressive.
5. The magistrate made her determination on the basis of the admissible evidence and only that evidence.
6. There was objective evidence of a physical confrontation between the appellant and the respondent captured by the video footage. The magistrate considered that evidence against a history of animosity between the parties, which was common ground. The magistrate also had oral evidence from the appellant that he continued to have relevant fears of harassment.
7. There was some age to the evidence, but it should be noted that the proceedings were on foot during the COVID-19 pandemic and adjourned and delayed by reference to it. In the circumstances, it was understandable and reasonable that the evidence relating to the appellant's fears was dated.
8. Whilst the magistrate did not make the orders on the basis of the evidence before her, the proceedings were not hopeless, and this was properly reflected in the magistrate's determination of the issues required to be examined under the Act. The magistrate's conclusion was that the evidence did not satisfy her that an order was warranted. The magistrate did not find that the proceedings were hopeless and she was in the best position to make that finding, if it was to be made, because it potentially involved her advantage of seeing the appellant give evidence.
9. At its highest, the respondent's argument is one of form over substance and this is a further reason for rejecting it.

Evidence tampering

1. It was common ground on the appeal that the appellant tried to merge the video and audio files recorded on two different devices, to in effect dub the video recording with the audio recording. The attempt did not fool anyone.
2. The merging of the files and the appellant's avoidance of the issue in cross-examination, quite properly adversely impacted his credit. The magistrate took this into account and gave it the weight that she thought was appropriate.
3. The appellant's actions did not undermine the integrity of the underlying evidence, being what was depicted in the video and what was recorded on the audio. The magistrate properly considered those files separately in analysing the evidence.
4. This is a case that can be distinguished from a case where a witness tries to destroy evidence or change what is conveyed by it. What the appellant did should not be condoned, but the magistrate dealt with it appropriately by analysing the objective parts of the evidence and taking the appellant's actions into account when assessing his credit. The magistrate ultimately rejected the appellant's evidence as to his fears based on the credit finding.
5. I accept that tampering with evidence could render proceedings vexatious, particularly if they are entirely or substantially based on false evidence. This was not necessarily such a case. There was objective evidence of an incident occurring and the appellant's attempt to merge the files did not change the evidence or create an allegation that was unsustainable.
6. The magistrate did not find that the proceedings were frivolous or vexatious based on the appellant's conduct in merging the files. She was in the best position to do so.

Conclusion

1. For these reasons, I am not satisfied that I should find that the proceedings were frivolous or vexatious on either basis contended for by the respondent.

Orders

1. The orders I make are as follows: 1. Appeal allowed in part. 2. The costs order made by the magistrate on 17 August 2022 is set aside.

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: 20 July 2023