Rizza v Rizza [2026] VCC 113

HIS HONOUR: No, look, I accept that. Look, another magistrate of this court considered that it was appropriate to issue an interim order. I might take - so, I've taken a slightly different view in terms of whether or not any such order should continue. And in those circumstances, I've struck the matter out. I mean, the magistrate was obviously satisfied on the basis of sworn evidence that your client had been acting erratically, if I can put it that way, around the time of the death of their mother in, I believe, about September of last year.

It could be said that, really, the wrong people were - or the wrong person was making the application, but in the circumstances, I don't consider that it's appropriate to order costs in this particular case on the basis, really, that, again, it's a discretion that I have. I may do it, notwithstanding I've found that it was - the application was frivolous or vexatious, but at the same time, your client's behaviour couldn't be described as completely blameless, if I can put it that way. And in those circumstances, I decline to order costs.[6]

1. The appellant's grounds of appeal are threefold. First, the appellant says his Honour's reasons for refusing to order costs were inadequate. Second, the appellant contends he was denied procedural fairness because, in declining to order the respondent pay costs, his Honour reasoned that the appellant was not "completely blameless"[7], which necessarily involved accepting some aspect of the conduct alleged without giving the appellant an opportunity to respond to the allegation. Third, the appellant says that the refusal to award costs was "unreasonable", presumably in the House v The King[8] sense, where:

. . . It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[9]

1. A party to a proceeding under the Act may appeal against an order of the Magistrates' Court in the proceeding, or a refusal of that court to make an order.[10] Such an appeal is by way of a re-hearing[11] but the appellate jurisdiction is engaged only if some legal, factual or discretionary error is shown in the decision against which the appeal is brought.[12]
2. Relevantly here, an affected family member may apply for a family violence intervention order.[13] The Magistrates' Court may make an interim order if a person has applied for a family violence intervention order and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application, relevantly, to ensure the safety of the affected family member.[14] However in determining whether to make a final order, the court must be satisfied, on the balance of probabilities, that the appellant committed family violence against the affected family member and is likely to continue to do so or do so again.[15]
3. This last condition was the flaw in the respondent's application, because as his counsel correctly informed the presiding Magistrate, there was no conduct constituting family violence which was directed by the appellant towards the respondent, and on that basis, following advice to the respondent from his counsel, the respondent understood that it was unlikely a family violence intervention order would be granted.[16] Notwithstanding the advice, the respondent instructed his counsel to proceed with the application.[17]
4. Turning then to the appeal grounds, beginning with the adequacy of the presiding Magistrate's reasons for refusing to make a costs order. It is uncontroversial that his Honour was under a duty to give adequate reasons for the decision. Reasons for a decision must be sufficient to allow a party to decide whether to exercise a right of appeal and to enable an appellate court to properly consider any appeal. The reasons given must articulate the essential grounds for reaching the decision and must address material questions of fact and law in a manner which discloses the steps which lead to a particular result. But the reasons for decision need not be lengthy nor elaborate and need not spell out every detail in the reasoning process or deal with every matter of fact or law which was raised in the proceedings. The content and detail of reasons will vary depending on the jurisdiction being exercised and the subject matter being considered. However, in assessing the adequacy of reasons given, although allowance can be made for busy courts delivering decisions and reasons ex tempore, the reasons must be intelligible in the sense that they disclose the reasoning path taken to arrive at the conclusion reached.
5. Here the appellant complains that although the presiding Magistrate found the respondent's application to be "frivolous or vexatious"[18], in dismissing the costs application, this was balanced against the fact that the appellant's "behaviour couldn't be described as completely blameless"[19]. The appellant contends that it is not clear what the presiding Magistrate meant or how the conduct for which he was held to blame was weighed against the frivolous nature of the application found by the presiding Magistrate. The appellant also contends that he advanced submissions to the primary Magistrate to the effect that he had engaged a solicitor at cost and did so immediately, not having sat on his hands, but the most that can be said about the reasons is that they leave him to speculate as to whether and if so how these matters were considered.
6. There can be little doubt that the reasons articulated by the presiding Magistrate for refusing a costs order are economical and perhaps imprecisely expressed, but I do not accept that the reasons are inadequate as the appellant alleges. Dealing with the last contention first, his Honour not only understood the submission made but accepted it.[20] But the presiding Magistrate also considered other matters including that an interim order directed to the appellant had been made by another Magistrate. The presiding Magistrate noted that another Magistrate considered that it was appropriate to issue an interim order.[21] In other words, the other Magistrate made an interim order because that Magistrate was satisfied the order was necessary pending the final decision about the application to ensure the safety of the affected family member.[22] The presiding Magistrate noted that the other Magistrate was obviously satisfied by the affidavit material that the appellant had been acting "erratically".[23]
7. As to the other matters raised under this ground of appeal, it seems clear the presiding Magistrate's reference in his reasons to the appellant's "behaviour" was to the appellant "acting erratically" around the time of death of his mother in around September 2024, as being described in the respondent's affidavit material to which his Honour had earlier referred. His Honour also noted that the wrong person or people were making the application, which is clearly a reference to the fact that the respondent's affidavit made allegations of conduct by the appellant directed to another person or persons who could properly bring the application as affected family members. Understood in that context, the presiding Magistrate reasoned that the appellant's behaviour directed to another person or other people as described in the affidavit material was not blameless in the sense that it was the catalyst moving the respondent to make the application.
8. The presiding Magistrate's power to order costs is derived from s 154(3) of the Act. The general rule as to costs, as s 154(1) makes clear, is that each party to a proceeding for a family violence intervention order must bear their own costs of the proceeding. Section 154(3) sets out two exceptions to the general rule. First, the court may order costs if it decides that exceptional circumstances warrant such an order in a particular case. Second, the court may award costs if the court is satisfied in a particular case that the making of an application under the Act was vexatious, frivolous or in bad faith. The discretion to order or award costs is enlivened only after the court is satisfied of the requisite precondition, relevantly here that the making of the application was frivolous.
9. Once the presiding Magistrate found that the making of the application was frivolous, his Honour still had a discretion to exercise. There are no express considerations set out in the Act about the matters that might be relevant to the exercise of that discretion and so the discretion might properly be described as at large. But the discretion is confined by the subject matter, scope and purpose of the statute and of the discretionary power to be exercised.
10. Against this legislative background the presiding Magistrate's chain of reasoning as disclosed from the reasons articulated is clear: although his Honour had concluded that the application was frivolous that did not automatically mandate a costs order. The reasons disclose that the presiding Magistrate considered the following matters as relevant to his discretion:

(a) That the application was frivolous or vexatious;[24]

(b) That the appellant acted quickly to obtain lawyers and defend the application;[25]

(c) That an interim order had been made;[26]

(d) That in making the interim order another magistrate was satisfied on sworn evidence that the respondent had been "acting erratically, if I can put it that way, around the time of the death of their mother in I believe, about September of last year" - this was clearly His Honour's euphemism for the alleged conduct of the respondent described in the affidavit material as founding the basis of the allegation that the respondent had engaged in acts of family violence;[27]

(e) that the wrong people were or wrong person was making the application;[28] and

(f) that the respondent's behaviour "couldn't be described as completely blameless, if I can put it that way".

1. There is no suggestion that any of these considerations were not relevant for the purposes of deciding the costs application. Weighing these considerations the presiding Magistrate declined to order costs. The weight ascribed to these considerations was a matter for his Honour, and although there is no indication as to the particular weight ascribed to each consideration it is clear from the result that collectively his Honour ascribed greater weight to the matters weighing against the exercise of his discretion to order costs (the matters in (c)-((f) above) than to those which pointed in the other direction (the matters in (a) and (b) above). In the circumstances of the application under consideration, the presiding Magistrate set out reasons which are sufficiently intelligible and disclose the reasoning path taken to arrive at the conclusion to decline to award costs. The first ground therefore fails.
2. By his second ground of appeal, the appellant contends that he was denied procedural fairness because the presiding Magistrate considered that the appellant's "behaviour couldn't be described as completely blameless" without the appellant being given an opportunity to respond. As should be evident from my analysis of the previous appeal ground, I agree with the appellant that his Honour's reference to "behaviour" must be understood to be a reference to some of the conduct alleged in the respondent's affidavit material.
3. On this ground of appeal, the appellant is on a much firmer footing. It should be clear from the earlier discussion, although the application for a final order was listed for 30 April 2025, the matter was determined because the presiding Magistrate acceded to the appellant's oral strike out application. The transcript of the proceeding does not disclose that the deponent of the affidavit material was called to give evidence or cross-examined. The presiding Magistrate had obviously read the affidavit material but made no factual findings about the conduct alleged. The appellant was not put on notice that allegations in the affidavit material would be a material consideration in his Honour's assessment of the costs application, nor was the appellant given any opportunity to cross-examine the deponent or to lead any evidence to contradict the allegations contained in the affidavit material.
4. It is uncontroversial that the Court must give a party a fair opportunity to respond to an adverse finding that a court may make affecting that party. Here the prejudicial finding was that the appellant was not "blameless". In circumstances where the court was already satisfied that the application against the appellant could not succeed and was frivolous, it cannot have been reasonably anticipated that a finding of the appellant as not being blameless was inherent in the costs issue which the presiding Magistrate was called upon to determine. It is clear from the reasoning of the presiding Magistrate that the fact that he considered the appellant as not being blameless was a matter of significance in the overall assessment whether to award costs. The appellant should clearly have been given an opportunity to address the issue and he was not. It cannot be said that the result would have been the same, even if the error had not been made. And in the circumstances, I am persuaded that the appellant was denied procedural fairness which was material. In the result the second appeal ground is made good, and it is unnecessary to consider the third ground.
5. I have considered the appropriate orders that should follow.
6. Section 119(2) of the Act relevantly provides that on the appeal the Court may confirm the relevant decision; or set aside the relevant decision; or vary the relevant decision and make any other order the Magistrates' Court could have made and exercise any other powers that the Magistrates' Court may have exercised.
7. I consider the most appropriate course would be to set aside the presiding Magistrate's decision refusing to award costs. I do not consider that this Court can properly exercise the power to award costs under s 154(3) of the Act because that would require satisfaction by this Court that the making of the application for a family violence intervention order was "frivolous" and there is no material before the Court upon which such a conclusion can be reached. Neither the application nor the supporting affidavit material has been filed, much less tendered on a rehearing. All that is before the Court is the appeal notice, the transcript of the proceeding below and the appellant's written submissions in support of the appeal. The effect of setting aside the presiding Magistrate's decision refusing to award costs is that there is extant an oral application for costs before the Magistrates Court.
8. Accordingly, in addition to the orders below, I direct that the Registrar of the County Court of Victoria to notify the Registrar of the Magistrates' Court of Victoria of the outcome of this appeal. I also direct that a copy of these reasons be provided to the Registrar of the Magistrates' Court of Victoria.
9. I order:

(a) The appeal is upheld;

(b) The decision made by his Honour Magistrate Langton refusing to award costs is set aside;

(c) The respondent pay the appellant's costs of the appeal as agreed and in default of agreement as assessed by the Costs Court.

[1] Magistrates' Court of Victoria Transcript of the hearing appears to be erroneously dated 24 June 2025

[8] [1936] HCA 40; 55 CLR 499

[9] House v The King [1936] HCA 40; 55 CLR 499 at 505

[10] Section 114(1) of the Family Violence Protection Act 2008

[12] AAA (Pseudonym) v County Court of Victoria A Ors [2023] VSC 13 at [67]