Frivolous intervention orders
In Victoria, the Family Violence Protection Act 2008 (FVPA) and the Personal Safety Intervention Orders Act 2010 (PSIOA) provide the court power to award costs in intervention order cases that are frivolous, vexatious, or made in bad faith or where there are exceptional circumstances.
In practice, the intervention order jurisdiction is the busiest, and it is always wise to engage specialist intervention order lawyers, as thousands of cases are being processed into the court system daily. As you might imagine, there are often cases we would describe cases as ‘frivolous’ applications, that is, applications that have no basis and are essentially wasting the court’s time and expenses. We have clients who come to us who are incredibly frustrated (with good reason) that an application has been brought against them with no basis and blatantly false allegations.
In these cases, it is incredibly unfair that the respondent must attend court numerous times to contest the application (meaning multiple days off work) and finance a lawyer. What can be done in cases like this? Well, there are a few options. The first option would be striking out the application at an early stage of proceedings, and the second option would be putting the applicant on notice of a cost application and, if there are grounds to do so, seeking a cost order from the court.
What is a frivolous intervention order application?
An example of a frivolous application might be a neighbour dispute where one neighbour has brought a Personal Safety Intervention Order Application against another. In the application, the party has referred to things that the neighbour has done – perhaps throwing rubbish over the fence, damaging a motor vehicle, etc, over a period of time. The other party, being the respondent, completely denies all the allegations and has strong evidence that none of the alleged events have occurred (for example, there is CCTV footage of every allegation proving that the events never took place).
In practice, an application like this probably wouldn’t make it far in court, particularly if one of our lawyers were handling the case. What would likely happen is an application would be made to strike out proceedings before the matter ever reached a contested hearing. The relevant legislation in relation to striking out proceedings for a Personal Safety Intervention Order is under s 6.02 of the Magistrates’ Court (Personal Safety Intervention Order) Rules.
We would then assess whether a cost application should be made against the applicant to recover some or all of the respondent’s legal fees.
Can I seek costs for a frivolous intervention order application?
Yes, you can seek costs if the court is of the view that the application is frivolous. It may also be possible to argue that ‘exceptional circumstances’ are present or that the intervention order application was ‘vexatious’ or made in ‘bad faith’ to warrant a departure from the court’s general position that each party must bear their own costs.
This test applies to Family Violence Intervention Orders and Personal Safety Intervention Orders (FVIOA s 154; PSIOA s 111).
Will my legal fees be covered if a cost application is granted?
If the court considers a cost application, the party seeking costs will be able to provide evidence of the cost of the proceedings (that is, the cost of a lawyer and a barrister, etc). It is usually the case in cost applications that an applicant will not have all of their legal fees covered; however, there are cases where our clients have actually been awarded full costs following a successful cost application.
If you are a respondent in what you believe is a frivolous intervention order application, please contact our office today to arrange an appointment so we can assist you.
What is a vexatious intervention order application?
A vexatious intervention order application is made by a vexatious litigant who is a person who persistently brings legal proceedings without sufficient grounds to do so. A vexatious litigant can act in numerous ways, including abusing the process of a court, harassing, annoying or unnecessarily causing delay to proceedings.
In Victoria, the Vexatious Proceedings Act 2014 has introduced more effective ways to manage and prevent vexatious litigation. This act allows the court to make a range of orders restricting a person’s ability to bring vexatious litigation.
What is an application made in bad faith?
An application made in bad faith is when the applicant acts unethically or deceptively in bringing an application before the court. See the case of Jarrod v Santamaria and Anor [2005] SASC 196 (discussed below).
Case examples of cost applications
Application made in bad faith
In Jarrod v Santamaria and Anor, the respondents Antonio and Susan Santamaria applied ex parte for a restraining order against their neighbour Andre Jarrad. Mr and Mrs Santamaria alleged many incidents of inappropriate conduct by Mr Jarrad against them, their children and others.
A Magistrate made an ex parte order relying on the supporting affidavits of Mr and Mrs Santamaria, and the order restrained Mr Jarrad from contacting, communicating or approaching directly or indirectly, whether in person by telephone, in writing or otherwise, with Antonio Santamaria, Susan Maria Santamaria, Vincent Santamaria, Jack Santamaria and Tom Santamaria. The order remained in place until the trial.
At trial, the restraining order was not confirmed. The Magistrate considered Mr and Mrs Santamaria to be unimpressive witnesses. In contrast, Mr Jarrad and his partner were found to be impressive and clear witnesses. Many of the incidents alleged in the supporting affidavits were not proven to have taken place. The Magistrate concluded that it was inappropriate to confirm the restraining order. Following the outcome of the trial, Mr Jarrad made an application for costs. The Magistrate declined to make an order for costs.
Mr Jarrad appealed the decision by the Magistrate not to award costs. Counsel for the appellant submitted that the Santamarias acted in bad faith and unreasonably in bringing the ex parte proceedings. It was said that Mr Jarrad was entitled to an order for costs pursuant to section 189(2a) of the Summary Procedure Act 1921 (SA). Counsel drew attention to the fact that the evidence in support of the ex parte application, the Santamarias’ affidavits, alleged that Mr Jarrad was involved in a number of incidents that were not subsequently established at the trial. Witnesses gave evidence at trial that did not support the assertions in the affidavits. Counsel contended that the Santamarias’ affidavits contained false allegations. In addition, it was submitted that the affidavits contained significant hearsay.
The Honourable Justice Grey held that the appeal was allowed, and the Santamarias were to pay the costs of Mr Jarrad for the proceedings in the Magistrates’ Court. His Honour held that the unsatisfactory and misleading nature of the affidavit evidence led to the conclusion that the proceedings were brought unreasonably and in bad faith. In these circumstances, Mr Jarrad was entitled to an order for the costs of the proceedings.
His Honour stated in his reasons that ‘the affidavit evidence of Mr and Mrs Santamaria contained material and prejudicial assertions based on hearsay. This appears to have given rise to material inconsistencies between the affidavits and the evidence at trial. Numerous assertions in the affidavits were not supported by the evidence at trial. Mrs Santamaria’s affidavit makes a number of references to incidents she claimed to have witnessed but were then not proven at trial. The Magistrate overlooked these relevant considerations. For this reason, the Magistrate’s refusal to order costs must be reconsidered.’
Exceptional circumstances case – costs not granted.
In Huang v Fitzgerald (Ruling) [2021] VCC 1280, at [49]-[52], Judge Lauritsen refused to order costs against the unsuccessful respondent as the application was not vexatious, frivolous or in bad faith. The judge held that the applicant, Mr Huang, presented as a ‘genuine litigant, concerned to protect himself and his family from the perceived actions of Mr Fitzgerald’ and that it was ‘not an application that was bound to fail.’ In this case, His Honour did not consider there were ‘exceptional circumstances’ justifying a departure from the primary position of each party bearing their own costs.
