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Court awards costs for ‘vexatious and malicious’ DFV order application

A judge has upheld a magistrate’s decision ordering a woman pay the legal costs for a “vexatious and malicious” application for a domestic and family violence protection order against her estranged spouse.

Maroochydore District Court Judge Glen Cash on Friday dismissed an appeal by the woman – identified as JSA – against a Caloundra magistrate’s order she pay $9362.30 in legal costs to her former partner, MPR, over a failed DFV protection order application.

 Judge Cash, in a 10-page written decision, said that in November last year a magistrate dismissed JSA’s application for a protection order under the Domestic and Family Violence Protection Act 2012 (Qld) on the basis that the woman “embellished her evidence on several significant issues”.

The magistrate found that – on all of the evidence presented during the application – JSA’s application for the order was “motivated by malice and desire for revenge” against MPR.

On 4 January 2022, JSA filed an appeal against the magistrate’s costs order in the District Court, citing “seven descrete grounds” including that it was “unreasonable or plainly unjust” not to grant the order and the decision to award costs.

Judge Cash dismissed the applications, saying: “Having considered the grounds of appeal that were pressed, I have concluded none are made out.”

In summarising the magistrate’s findings, Judge Cash said: “On 19 November 2021, the Magistrate gave reasons about why she did not intend to make a protection order.

“The Magistrate concluded that (JSA) had embellished her claims and brought the application with malice and to vex (MPR).

“The Magistrate was aware that an award of costs was discretionary and did not follow automatically upon her finding that the application was malicious and vexatious.

“In giving reasons for the decision to award costs the Magistrate referred to her earlier findings … (JSA) had no grounds for bringing the application and that she had misled the court in her evidence. These were significant findings.

“(MPR) had been required to defend the application in circumstances where the Magistrate found it should not have been commenced. While this was not specifically identified by the Magistrate, it was a powerful factor in favour of awarding costs to the respondent.

“In my view, the findings of the Magistrate about the (JSA’s) motivation were sufficient to justify an award of costs to (MPR) so that he might be indemnified for the expense of defending a malicious and vexatious proceeding.

“The amount of costs was agreed between the parties and there is no warrant for this court to interfere with the decision of the Magistrate. (Therefore) the decision … to dismiss the application and to award costs fixed in the sum of $9362.30 to (MPR) is confirmed.”

Read Judge Cash’s decision.

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