Written by Youssef Maksisi, Associate

There has been a marked increase in the use of AVO’s in order to protect victims of domestic violence and/or other non-domestic related personal violence.

AVO Applications are generally divided into the following two categories:

  •  ADVO — an apprehended domestic violence order
  • APVO — an apprehended personal violence order

With the increased use of APVOs and ADVOs, there is also the possibility that some applications made be made in circumstances where there is no proper basis for them. The law recognises that this may be the case, and has accordingly set out rules relating to when costs may be awarded against the applicant of an ADVO or APVO.

The Relevant Legislation: AVO Costs

The relevant section setting out the basis for a costs order in relation to AVO proceedings is found in section 99 of the Crimes (Domestic And Personal Violence) Act 2007 (extracted below)

Section 99 – Costs

A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section.

Costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 .

A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious.

A court is not to award costs against a police officer who makes an application unless satisfied that the police officer made the application knowing it contained matter that was false or misleading in a material particular.

Subsections (3) and (4) have effect despite any other Act or law.

Explanation of the Relevant Legislation: AVO Costs

The following is a summary of the relevant section:

  • Section 99 creates a number of different considerations regarding applications for costs that are dependent on whether the application was for an ADVO or APVO and/or issued by a police officer;
  • Section 99(1) provides power to award costs against either the applicant or defendant;
  • Section 99(2) states that costs are to be determined in accordance with Div 4 Pt 2 Ch 4 (ss 211–219) Criminal Procedure Act (this is explained further below); and
  • Importantly, section 99(4) prohibits a costs award against an applicant police officer, unless the police officer made the application “knowing it contained matter that was false or misleading in a material particular.

What does Div 4 Pt 2 Ch 4 (ss 211–219) Criminal Procedure Act say?

Section 99 sets out an explanation of the procedure of costs applications in AVO matter, but it leaves the real explanation of how and when costs are to be awarded to another piece of legislation. That legislation is the Criminal Procedure Act, in particular Div 4 Pt 2 Ch 4 (ss 211–219) of that Act.

There are three main bases under Div 4 Pt 2 Ch 4 (ss 211–219) that are generally relied upon in costs applications. They are:-

  1. That the investigation of the matter was conducted in an unreasonable manner (s 214 (1)(a)); and/or
  2. That the proceedings were initiated without reasonable cause (s214 (1)(b)); and/ or
  3. That the prosecution unreasonably failed to investigate (or to investigate properly) relevant matters of which it was aware or ought reasonably to have been aware and which suggested that the accused person might not be guilty or that the proceedings should not have been brought (s214 (1)(c)).

The following is a summary of the operation of Div 4 Pt 2 Ch 4 (ss 211–219) of the Criminal Procedure Act:

  • Costs do not follow the event. This means that there is no automatic right to costs and there is no onus on the informant to justify the refusal of costs: Barton v Berman [1980] 1 NSWLR 63;
  • A magistrate must be of the opinion that costs are “just and reasonable”. This “requires that it be just in the outcome and reasonable in its terms”: per Kiefel J in Ly v Jenkins (2001) 114 FCR 237 at 281 [161]; Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552 at 561;
  • “Professional costs” are defined in s 211. This reflects the meaning of “costs” at common law, that is, “confined to moneys paid or liabilities incurred for professional legal services”: Cachia v Hanes (1994) 179 CLR 403. It includes amounts for disbursements and expenses reasonably incurred in the preparation of the case: Ly v Jenkins per Moore J at [13], [27]; and
  • A Magistrate is both entitled and bound to receive any relevant evidence presented in admissible form as to any party wishing to be heard as to the terms of the final costs order.

Basis of Dismissal of Proceedings

There is nothing in the scope or purpose of the legislation that suggests that there needs to be a relationship between the basis for discharge/dismissal and the basis for an order for costs.

Therefore, the manner in which the proceedings are withdrawn and/or dismissed (namely, if that occurs after representations were successfully made to the Local Area Commander or after a full hearing) is not, in and of itself, determinative of whether or not a costs order ought to be made.

The Conflict Between Section 99 and the Criminal Procedure Act

A careful reading of the sections of the legislation referred to above reveals that there exists a real conflict between ss 99(2), (4) and the Criminal Procedure Act. The conflict exists because of the operation of section 99(4), which prohibits a costs award against an applicant police officer, unless the police officer made the application “knowing it contained matter that was false or misleading in a material particular. Whereas, there is no such restriction placed on the awarding of costs under Div 4 Pt 2 Ch 4 (ss 211–219).

Resolving the Conflict

The conflict between the two sections of the two differed legislation was considered (indirectly) in the case of Constable Redman v Willcocks (2010) 79 NSWLR 226.

The below is a summary of the findings of His Honour Justice Davies in that case.

His Honour stated at [21]–[22]:  “In my opinion, the proper operation of s 99 in harmony with Division 4 is as follows:

  1. The Court may not award costs against a police officer making an application in relation to the application generally and its determination unless the Court is satisfied that the police officer made the application knowing that it contained matter that was false and misleading in a material particular;
  2. That restriction does not prevent the Court being able to make a costs order against a police officer in relation to procedural misconduct such as occurred in the present case, such power being found in s 214(3)(b) and s 214(1)(d); and
  3. Section 213 and its predecessor s41A confer an absolute and unfettered but judicial discretion on a magistrate to award costs such as are just and reasonable: Acuthan and Ors v Coates and Ors (1986) 6 NSWLR 472; Barton v Berman [1980] 1 NSWLR 63. The discretion must be exercised for “reasons connected with the case” and not reasons extraneous or foreign to the case: Acuthan and Ors v Coates and Ors Barton v Berman [1980] 1 NSWLR 63.

The Practical Side of Things

In order to be successful in an application for costs in an AVO matter, it is vital to put before the court some evidence (or other material that can give rise to an inference) that the applicant police office:-

  1. Made the application knowing it contained information that was false;
  2. Made the application knowing it contained information that was misleading;
  3. The information that was false or misleading, must also have been false; or misleading in a material way to have an impact on the application.

This evidence may be contained in the statements that you were served with in the mini-brief, or in any statement of the police officers in support of the application.

However, this information may only come to light if, and when, the police officer (being the applicant in the AVO) is cross examined.

Cross examination of the applicant police officer is usually part of the actual hearing that takes place. However, even if the applicant police officer is not cross examined during the hearing, he can be called or subpoenaed to give evidence on the costs application. If the applicant police officer has already given evidence,

Before making any application, you may wish to obtain some advice from the court registry and/or a lawyer.