Tosson MAHMOUD v Vincent SUTHERLAND [2013] NSWDC 140

Tosson MAHMOUD v Vincent SUTHERLAND [2013] NSWDC 140

Although the Court considered that s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007 did not apply on its terms to an apprehended personal violence order, the District Court was bound by the Court of Appeal's decision requiring the remitted costs issue to be determined by applying that provision. On the Local Court material, including Mr Mahmoud's application and evidence, and despite his conduct in cross-examination, the Court was not satisfied that the application was frivolous or vexatious. The magistrate's costs order therefore had to be set aside.

Jurisdiction
Australia
Judgment Date
07 June 2013
Procedural Posture
Appeal Concerning Costs Order in Apprehended Personal Violence Order Proceedings / Remitted to the District Court by the Court of Appeal for Determination According to Law
Outcome
Appeal upheld. Costs order set aside.
Legal Topics
['costs in Apprehended Violence Order Proceedings' 'frivolous or Vexatious Applications' 'binding Effect of Court of Appeal Decisions' 'amicus Curiae Assistance' 'costs of Litigants in Person' 'special Leave Application to the High Court']
['criminal Procedure' 'apprehended Violence Orders' 'costs' 'judicial Bias and Disqualification' 'civil Procedure'] ['costs in Apprehended Violence Order Proceedings' 'frivolous or Vexatious Applications' 'binding Effect of Court of Appeal Decisions' 'amicus Curiae Assistance' 'costs of Litigants in Person' 'special Leave Application to the High Court']

Case Brief

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Procedural Posture

Appeal Concerning Costs Order in Apprehended Personal Violence Order Proceedings / Remitted to the District Court by the Court of Appeal for Determination According to Law

Legal Issues

  1. 1 ['Whether the District Court was bound to apply s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007 as identified by the Court of Appeal despite the proceedings involving an apprehended personal violence order rather than an apprehended domestic violence order.' "Whether Mr Mahmoud's original application was frivolous or vexatious so as to permit a costs order against him under the law stated by the Court of Appeal." 'Whether communications and documents provided by strangers to the litigation compromised the proceedings or required disqualification.' "Whether Mr Mahmoud could obtain costs against strangers to the litigation for the first day's proceedings." "Whether Mr Mahmoud's application for special leave to appeal to the High Court impeded the District Court determining the remitted costs issue."]

Ratio Decidendi

Although the Court considered that s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007 did not apply on its terms to an apprehended personal violence order, the District Court was bound by the Court of Appeal's decision requiring the remitted costs issue to be determined by applying that provision. On the Local Court material, including Mr Mahmoud's application and evidence, and despite his conduct in cross-examination, the Court was not satisfied that the application was frivolous or vexatious. The magistrate's costs order therefore had to be set aside.

Court Disposition

Appeal upheld. Costs order set aside.

Orders

  • ['The appeal against costs is determined by setting aside the costs order of the magistrate under s 20 of the Crimes (Appeal and Review) Act 2001.' 'A transcript of the judgment is to be taken and made available to the judge for revision.']