Construction of s 99(3) of the Act
47Section 99(3) is an unusual provision that, on its face, displaces the general principle of costs following the result in non-criminal matters.
48In accordance with that subsection, it is only in cases in which a magistrate is affirmatively satisfied that the application was frivolous or vexatious that costs can be ordered against an applicant who, as here, is the person whose protection is sought pursuant to the application. That is a high hurdle for any defendant to an ADVO to clear. It is apparent that there will be very many cases in which an application for an ADVO is dismissed but no costs ordered in favour of a successful defendant, as a result of the operation of the subsection.
49It is not entirely clear how s 99 is to operate in conjunction with Division 4 of Part 3 of Chapter 4 of the Criminal Procedure Act. In particular, it is not clear whether s 99(2) has work to do in addition to s 99(3) in a situation such as the present.
50Davies J considered the general question in Constable Redman v Willcocks [2010] NSWSC 1268, a decision to which I was helpfully referred. Counsel for the defendant did not refer me to any other cases on the construction of s 99.
51In Constable Redman v Willcocks, Davies J held that that Division of the Criminal Procedure Act has work to do by way of s 99(2), even despite s 99(4) and s 99(5). I respectfully agree with his Honour's reasoning in that case.
52However, in contrast to this case, that case was to do with the question of available costs when the applicant is a police officer (who had mishandled the conduct of the application in court), not a person seeking protection as here. In other words, that case dealt with the interaction between s 99(2) and s 99(4), not s 99(2) and s 99(3).
53Furthermore, at [37] Davies J noted the fact that s 99(4) focuses twice upon the making of the application by the police officer. His Honour regarded that as a "small indication that the restriction in that sub-section is directed to the bringing of the application and not the way it is subsequently conducted." And yet it is noteworthy that s 99(3) is not expressed in the same terms, and speaks only of "the application". That provides some support for the proposition that that distinction between the bringing of an application and the conduct of the application drawn by Davies J is not able to be drawn in a situation such as this.
54I have also considered the decision of Garde v Dowd [2011] NSWCA 115. But that case was to do with the correct construction of s 99(2), not whether s 99(2) had work to do above and beyond s 99(3) in the case of an applicant who is the person for whose protection an ADVO is sought. Indeed, Basten JA (with whom Giles and McColl JJA agreed) made it clear at [3] that "[t]he only order which is challenged, pursuant to judicial review proceedings in this Court, is an order made in the Local Court that the applicant pay the respondent's costs "as agreed or assessed"".
55In accordance with the issues raised by the parties in that matter, s 99(3) is not mentioned in the judgment. In short, I do not consider that the decision in Garde v Dowd assists in determining the relationship between s 99(2) and s 99(3).
56Furthermore, I have sought to construe the combined operation of s 99(2) and s 99(3) by way of reference to general principles of statutory construction. I have considered the purpose underlying the Act as a whole, in accordance with s 33 of the Interpretation Act 1987. I have also considered the provisions in the context of the whole statute, in accordance with what was said by the plurality in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] to [71].
57The underlying purpose of the Act is to provide protection and assistance to members of the community who are in danger from violence or the threat of violence. The Act creates a detailed regime whereby such persons can seek orders that limit, on pain of criminal sanction, the otherwise lawful actions of others. Part 2 of the Act states its objects consistently with the above summary.
58One approach is to interpret s 99(3) as applying only to the original application made by a person in need of protection, and not to the application as a whole, thereby permitting s 99(2), and the provisions that apply to costs in summary criminal matters generally, to apply to the course of any such application in court. The alternative approach is to regard s 99(3) as being the dominant provision over s 99(2), thereby shielding persons in need of protection who are applicants from costs orders, unless the high hurdle in s 99(3) is cleared by a defendant. It seems to me that the latter interpretation is more consistent with the underlying purpose of the Act, and the context in which s 99 appears.
59In this Court, neither party submitted to me that the Magistrate was in error in confining his Honour's consideration to s 99(3), and not considering the possible application of s 99(2). Nor was any such submission made to the Magistrate by the solicitor then appearing for the plaintiff. In light of the factual differences between this case and Constable Redman v Willcocks, the differences in wording between s 99(3) and s 99(4), general principles of statutory construction, and the position of the parties, I proceed on the basis that s 99(2) does not apply in the circumstances of this case.
60Having said that, s 99 is not without its difficulties, as both Basten JA and Davies J have noted. Furthermore, the plaintiff, due to his lack of representation, was not in a position to make submissions about the intricacies of the section, or the effect of Constable Redman v Willcocks.
61I consider that, as against the possibility that the Magistrate and I are wrong in our construction of the section, I should make the following brief comments, on the assumption that Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act applies. I shall do so without extracting the relevant sections.
62In this matter, there was no evidence before me of any procedural mishandling on the part of the defendant of the kind that the applicant police officer committed in Constable Redman v Willcocks. I certainly do not regard the continuation of the matter after the "without prejudice" letter was sent as falling into that category. As a result, it is seriously open to doubt whether, even if the Magistrate had applied the Division under consideration, his Honour would or should have made a costs order of the kind made in Constable Redman v Willcocks, or indeed any costs order in favour of the plaintiff.
63Separately, I do not consider that I need to engage in lengthy analysis of the meaning of the phrase "frivolous or vexatious". Those words are well known to the law and import a high degree of inappropriateness in a cause of action, approaching an abuse of process. I am content to proceed on the basis of definitions derived from Bullen & Leake & Jacob's Precedents of Pleadings, 12th ed (1975) Sweet and Maxwell at p 145, and provided in Peter Taylor et al, Ritchie's Uniform Civil Procedure NSW (2005) LexisNexis Butterworths at [4.15.10] - [4.15.15]: "A matter is frivolous when it is without substance or 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".