GJ v AS [2011] ACTSC 119

Supreme Court of the ACT|2011-07-28|Before: Gray J

1. On 7 March 2011 I set aside the decision of a magistrate which discharged an interim protection order that had been granted to GJ, the appellant, against AS, the respondent. I further ordered that the matter be remitted to the Magistrates Court to be dealt with in accordance with the law.

2. The appellant who is an admitted solicitor but not holding a practising certificate seeks costs.

3. Section 111 of the Domestic Violence and Protection Orders Act 2008 (Protection Orders Act) makes it an offence to publish an account or report of a proceeding on an application for a protection order. I consider that section extends to these proceedings by way of appeal. Accordingly, the parties are not identified for the purposes of this judgment.

4. On 12 January 2010 the appellant filed an application for a Personal Protection Order under the Protection Orders Act. In that application the appellant sought orders against the respondent who was then the owner and operator of a website.

5. The basis for the application was that the appellant discovered on or around about 14 December 2009 that in early 2005 there had been a number of comments made about her on the website. These comments related to the appellant and her involvement in a matter concerning the NSW courts. I do not refer to the details.

6. The appellant's involvement in this matter resulted in the respondent posting a report on the website under an alias and degrading comments were made about the appellant. Similar comments were also made by third parties.

7. In January 2010 the appellant wrote to the respondent stating she was seeking advice in relation to defamation and asking the respondent to remove the earlier postings from the website. The respondent posted this letter of demand on the website which again generated further degrading comments towards the appellant. As an example, among the comments was one from a user which said "I keep thinking of a shotgun and a horse's head... that's all... that's not a threat..." The appellant commenced her application for a Personal Protection Order.

8. On 13 January 2010 an interim protection order was granted pursuant to s 29 of the Protection Orders Act.

9. On 29 April 2010 the Magistrates Court constituted by a magistrate discharged the interim protection order and dismissed the application for a protection order. It is this order that is the subject of the appeal to this court pursuant to s 96 of the Protection Orders Act.

10. When the appeal first came before me on 8 November 2010 the appellant sought to consider her position with respect to a foreshadowed amendment to her grounds of appeal. The proceedings were adjourned for directions and the appellant ordered to pay the respondent's costs of that day's proceedings. On 23 November 2010 the appellant was given leave to file an amended notice of appeal and written submissions.

11. The matter next came on for hearing on 7 March 2011. By her amended notice of appeal the appellant raised the point that the requirements of s 36(6) of the Protection Orders Act had not been complied with. Section 36(4) of the Protection Orders Act requires a respondent who wishes to object to an interim order becoming a final order to return a completed endorsement copy objecting to the interim order becoming a final order at least 7 days before the return date for the application for the final order. The respondent did not do this. Section 36(6) of the Protection Orders Act provides:

If the respondent wishes to object to the interim order becoming a final order but does not act under subsection (4), the Magistrates Court may decide the final order only if the respondent -

(a) attends the Magistrates Court on the return date for the application for the final order; and

(b) objects to the interim order becoming a final order; and

(c) satisfies the court that the respondent -

(i) has a legal disability and did not have a litigation guardian appointed for the proceeding at any time before the endorsement copy was required to be returned under subsection (4) (c); or

(ii) has a reasonable excuse for failing to act under subsection (4).

the respondent was injured in a car accident and unable to return the endorsement copy in the time required.
The respondent is from a non-English speaking background and no one was able to interpret the endorsement copy for respondent until after it was required to be returned.

Note: An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act s 126 and s 132).

12. The Magistrates Court for that purpose had been constituted by the Senior Deputy Registrar.

13. At the time that the order was made the Court Procedures Rules 2006 (CPR) made provision for exercise of the jurisdictions of the Magistrates Court that could be exercised by the registrar (and deputy registrars) under the Protection Orders Act. CPR 6251(3)(d) provided only for the exercise of jurisdiction of the Magistrates Court by the registrar limited to matters "under the Domestic Violence and Protection Orders Act 2008, part 5 (Consent orders)".

14. In other words the senior deputy registrar could not constitute the Magistrates Court for the purposes of s 36 of the Protection Orders Act to determine that the respondent had a reasonable excuse for failing to act under s 36(4) of that Act. Accordingly in these circumstances I considered that a vital step in the Magistrates Court proceedings had not been complied with and the matter should not have proceeded before the magistrate in the way it did. The proceedings miscarried and I considered that the appropriate order was to remit the matter to the Magistrates Court to determine the matter according to law.

15. On making the order remitting the matter to the Magistrates Court the appellant sought costs and written submissions were subsequently filed. At issue was whether a costs order in the appellant's favour should be made and whether the self-represented appellant, as an admitted solicitor not holding a practising certificate, was entitled to a costs order.

16. In the course of considering the written submissions it seemed to me that there was a more fundamental issue and that was this Court's power to award costs on an appeal under the Protection Orders Act.

17. It was on this aspect that I sought further written submissions by the parties. In doing so I referred to the long standing tenet of the common law that the power to award costs in the common law courts is entirely the creature of statute and that in the absence of an express power to award costs the Court has no such power (c.f Byrnes v Barry [2004] ACTCA 24; (2004) 150 A Crim R 471 at [52] per French J]). Thus, the costs in proceedings and those ordered to be paid or provided for had to be found in the Acts and rules regulating the proceedings.

18. I also pointed out that before the enactment of the Court Procedures Act 2004 (Court Procedures Act) the power of the Supreme Court to award costs was contained in s 23 of the Supreme Court Act 1933. That section was relocated from the Supreme Court Act 1933 by the Justice and Community Safety Legislation Amendment Act 2005 (No 4) (The Amending Act) to become s 134 of the Court Procedures Act. Section 139 of the Amending Act provided that the division in which s 134 was found was to expire on the existing rules expiry. The effect, it appears, was to include the entitlement to recover costs as the province of the CPR to be made under the Court Procedures Act (see s 7 and Schedule 1, Part 1.2, Item 26 (b)).

19. Section 7 of the Court Procedures Act permits the making of rules including the matters that are specified in Schedule 1 to the Act as the subject matter for rules. Schedule 1, Part 1.2, Item 26 provides:

Costs

costs, including for example, the following:

(a) security for costs;

(b) entitlement to recover costs;

(c) costs of parties in proceedings;

(d) assessment of costs

20. I am satisfied that the Court's power to award costs in the proceedings before me are derived from these provisions.

21. At the time of the appellant making her application for costs r 4 of the CPR provided:

(1) Unless a territory law otherwise provides, these rules apply to all proceedings in the Supreme Court and Magistrates Court, other than proceedings under the Domestic Violence and Protection Orders Act 2001 and the Domestic Violence and Protection Orders Act 2008.

Note 1: A territory law includes these rules (see Legislation Act, s 98).

Note 2: Div 6.8.10 (Service of subpoenas in New Zealand) applies to proceedings under the Domestic Violence and Protection Orders Act 2008 and also to proceedings in the Coroner's Court (see r 6520 (Application - div 6.8.10)).

22. The CPR were amended with effect from 1 July 2011 by the Court Procedures Amendment Rules 2011 (No 2) to provide:

Note 3 Pt 5.3 (Appeals to Supreme Court) applies to appeals under the Domestic Violence and Protection Orders Act 2001 and the Domestic Violence and Protection Orders Act 2008 (see r 5051) (Application - pt 5.3)).

1"> 23. It can be seen that specific provision was necessary to provide for appeal proceedings under the Protection Orders Act to be made the subject of the CPR. I am satisfied that at the time that the appellant made her application for costs no such provision had been enacted which would affect the appeal proceedings with which I am concerned.

24. It follows that up to the time of the application for costs in this matter there was no provision in the CPR or any other statutory provision which would enable this Court to award costs on appeal proceedings under the Protection Orders Act. That position has been redressed by the amendments to the CPR set out above at [22] with effect from 1 July 2011 but that power was not available to the Court at the time of this application.

25. Although in her further written submission on costs the appellant sought to invoke the Court's inherent jurisdiction over legal practitioners and sought costs on the basis of the respondent's legal practitioners acting unreasonably in defending the proceedings. In the circumstances of this case I have no cause to consider the exercise of that jurisdiction and I do not propose to entertain any such application.

26. Regrettably, it also follows that I had no power to make the order for costs that I made on 8 November 2011. I agree with the respondent, that, having made the order, I have no power to set it aside. That would seem to me to be only able to be done by appeal from that order. It may be that leave to appeal is required. I make these remarks so that the matter of those costs can be considered in that context.

27. If the parties wished to avoid the inevitable costs of such an appeal I make the suggestion that the matter could be resolved by the respondent undertaking not to pursue the matter. That is solely a matter for the parties.

28. The respondent referred to s 117 of the Protection Orders Act. That section provides:

(1) This section applies if the Magistrates Court is satisfied that -

(a) an application is frivolous, vexatious or has not been made honestly; and

(b) someone (the person put to expense) other than the applicant has reasonably incurred expenses in relation to the proceeding on the application.

(2) The Magistrates Court may order the appellant to pay to the person to put to expense an amount, not more than the expenses incurred, that the court considers reasonable.

(3) The amount stated in the order -

(a) is a debt owed by the applicant to the person put to expense; and

(b) is a judgment debt enforceable in accordance with the rules under the Court Procedures Act 2004 applying in relation to the civil jurisdiction of the Magistrates Court.

(4) For this section:

expenses incurred, by someone in a proceeding, include fees payable by the person to a lawyer in relation to the proceeding.

29. That is not a provision relating to costs and is confined to applications under the Protection Orders Act that are frivolous, vexatious or not made honestly. I do not consider it of any assistance.

30. The respondent also referred to s 93 of the Domestic Violence and Protection Orders Regulation 2009 (Protection Orders Regulation) which provides:

(1) Each party to a proceeding on an application must bear the party's own costs;

(2) However, the Magistrates Court may order the payment of costs in a proceeding and, if it does, the court must fix the amount of the costs.

(3) Also, the Magistrates Court must not order the payment of costs on an application if section 19 (2) (Procedure if neither party appears) applies to the proceeding on the application.

(4) Costs under subsection (2) are recoverable as if they were costs awarded by the Magistrates Court in a civil proceeding.

31. The provision is specifically directed to the power of the Magistrates Court in respect of a proceeding in the Magistrates Court. I do not consider that it applies to this Court on a proceeding that is an appeal from a proceeding in the Magistrates Court under the Protection Orders Act.

32. Section 93(1) of the Protection Orders Regulation demonstrates an intent and purpose that each party to a proceeding on an application should bear their own costs. That is a significant factor in the exercise of the general discretion conferred on the Magistrates Court by s 93(2) of the Protection Orders Regulation. Even if it were open to me to do so, in the particular circumstances of this matter I would not exercise my discretion in the appellant's favour.

33. That being the case it is not necessary to consider whether the appellant as a legal practitioner admitted to practice but not the holder of a practising certificate would be entitled to costs.

34. I dismiss the appellants application for costs.

I certify that the preceding thirty four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the Respondent: Reardon and Associates Lawyers

Date of hearing: 8, 23 November 2010 and 7 March 2011

Violence and Protection Orders Act 2008

Procedures Rules 2006

Justice and Community Safety Legislation Amendment Act 2005

Court Procedures Amendment Rules 2011

Violence and Protection Orders Act 2001

(Commercial and Retail) Act 2001

Crime (Financial Assistance) Act 1983

Violence and Protection Orders Regulation 2009

(Commercial and Retail) Act 2001

Crime (Financial Assistance) Act 1983

Violence and Protection Orders Regulation 2009

Violence and Protection Orders Act 2008

Procedures Rules 2006

Justice and Community Safety Legislation Amendment Act 2005

Court Procedures Amendment Rules 2011

Violence and Protection Orders Act 2001

At a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties

Legislation Cited (22)