LKF v MRR[2012] QDC 355

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This appeal relates to proceedings brought under the Domestic and Family Violence Protection Act 1989 (“DFVPA”).  By a notice of appeal filed in this Court on 1 July 2011, the appellant identifies that she is aggrieved by the order or decision made at the Noosa Magistrates Court on 3 June 2011.  She identifies the details of that order or decision as:

“The Magistrate ordered costs against myself of $24,550 after not hearing the case and dismissing the case on 15 April 2011.”

In fact the order formally made by the Magistrate on 3 June 2011, was that the appellant’s application for orders pursuant to s 20 of the DFVPA, was dismissed and the appellant was ordered to pay the respondent’s costs in the sum of $24,550, on or before 3 August 2011.

2. [2]
   She further sets out her grounds of appeal as:

“All grounds appeal.  Denied natural justice, the Magistrate appeared to be biased.  Denied procedural fairness.  I had to obey the orders from superior Court being the Family Court, on same day of 15/4/2011, which the Magistrate was aware of (given two months notice of this).  All my filed affidavits, with attached evidence go against the decision made.  I also gave the Court 2 month notice that I couldn’t be present on 15/4/2011.”

3. [3]
   Some sense of this can be made by reference to the transcript of the reasons given by the Magistrate for the orders made in the Noosa Magistrates Court on 3 June 2011, when the appellant’s application, which had been filed on 23 March 2010, was formally dismissed.

4. [4]
   That application had been first before the Magistrates Court at Noosa on 25 March 2010 and in dismissing it on 3 June 2011, the Magistrate outlined a protracted and fractured history of hearing of the matter over many allocated mention and hearing dates, which history was complicated by what the Magistrate described as the “copious” and “confusing” nature of the material filed by the appellant in support of her application and by reference to what were set out as failures of the applicant to be ready to proceed at listed times for the hearing of her application, including the failure of the applicant to appear on 15 April 2011, when the hearing was rescheduled for the continuation of her cross-examination of the respondent.

5. [5]
   The learned Magistrate took a dim view of this failure to appear and the appellant’s suggestion that she was unable to attend Court on that date, due to a commitment to a Federal Magistrate’s Court Order in respect of her child. The reasons include reference to the length of notice that had been given of the Court’s intention that the hearing proceed on 15 April 2011 and the apparent alternatives that were open to the appellant in order to avoid the conflict of which she complained.

6. [6]
   Although the Magistrate had decided to dismiss the application on 15 April 2011, when the appellant did not appear to continue her cross-examination of the respondent and to otherwise pursue her application, it is clear from the record that the matter was adjourned to 3 June 2011, for the purpose of and when the formal orders were made, dismissing the application and awarding costs to the respondent. The Magistrate had specifically set a timetable on 15 April 2011 for the provision of written submission in respect of the respondent’s costs application.^[1]

7. [7]
   Early in her reasons, the Magistrate set out the history of the proceedings in the Magistrates Court, in some detail and also explained some context to these proceedings. Because of the importance of these findings and observations, to the decision of the Magistrate which is the subject of this appeal, it is desirable to set out a lengthy extract from those reasons (as it is transcribed):

“It is clear that there has been a high degree of angst between the parties in respect to the respondent’s applications to the Court^[2] to have the mother return to the Doonan area and, of course, his application that the child live with him.  As noted, none of this is relevant other than to the extent that it might impact on whether there has been an act of domestic violence and whether the claims in the application might be considered malicious or deliberately false, frivolous or vexatious as required by the legislation.

It is alleged by the respondent that the mother has filed a number of applications prior to this application and the matters have been withdrawn.  This was conceded by [LKF] under cross‑examination and that is sufficient for me to accept the circumstances of those.  It is not necessary for me to investigate.

This application that is currently before the Court was filed on the 23rd of March 2010 and first came before the Court on the 8th of April 2010.  On this day, a temporary domestic violence order was made and the matter was set for hearing immediately on the 18th of June 2010.  At this stage, I will say that the placing of a temporary domestic violence order reflects that, on the face of the application, there may be an act of domestic violence.

I point out that, at that point, it is untested and, in fact, the order reads, “It, having appeared to the Court that a domestic relationship exists between the two parties and that an act of domestic violence has been committed against the aggrieved by the respondent, it is ordered that” - that is, it only appears.  On the affidavit and application it would appear that there’s some degree of violence and thus the domestic violence is put in place until the matter can be fully litigated and a proper decision made.

I will say this, however, that in that application filed in March of 2010, [LKF] sought orders that [MRR] was not to enter any place where she was living, was not to come within a hundred metres of any place she was living, was not to come within a hundred metres of [LKF], was not to go anywhere near her son’s work or her daughter’s school, was not to contact her or have anybody else contact her, either directly or indirectly, was to return battery and car parts, was only to come to her house for contact and was to remain in the car while she strapped the baby in the car.  Of course, two other persons were named, that is, her other children, [H] and [S].

I point out that none of these conditions were granted on the temporary order which was simply that the respondent be of good behaviour and not commit domestic violence.  That is the mandatory conditions only.

As I have indicated, the matter was set for hearing on the 18th of June. On this day, the matter came before the Court, in fact, it came before me and the applicant had indicated that she’d subpoenaed records from Telstra.  I refer to her submissions filed on the 25th of May 2011 in regard to costs at paragraph 5 where she concedes this.  As [LKF] was a self-represented litigant, it was explained to her on that day the circumstances of the subpoena.  [LKF] then agreed to obtain some legal advice and to sort out the subpoena issues so the matter could in all fairness proceed with all of her evidence, so that she was accorded every opportunity to bring all the evidence before the Court and have as much natural justice accorded to her as a self-represented litigant.

The hearing was then adjourned until the 17th of September but listed for review on the 3rd of September to ensure that all matters had been attended to and that the trial was ready to proceed on the 17th of September 2010.  Just prior to this date, [LKF] corresponded regularly with the registry staff indicating that she intended to seek an adjournment due to ill health and of not being able to prepare her documents.  She did forward a medical certificate which certified her ill health and, accordingly, the adjournment was granted.

On this date, however, a submission was received from the respondent’s solicitors that the temporary order should not be enlarged, given [LKF] lack of commitment to prosecuting the matter, and those submissions were accepted. 

The matter was then again listed for mention on the 1st of October to enable [LKF] to have input into the hearing date and to ensure that all matters had been attended to so that the trial could again proceed without further delay.

On that date, being the 1st of October, a new hearing date was set for the 17th of December 2010, there was also a direction that no further material be filed without leave and that all material to be relied upon should be listed.  A chronology was to be filed by [LKF] and also a list of witnesses because her evidence had become so copious and confusing it was difficult for the respondent to know the accounts that he had to meet.  Effectively, she was to not file further material without leave and give the Court and the respondents a list of all evidence that she intended to rely upon, all witnesses she was going to call, and prepare a chronology of events so that her material could be put into context.

On the 17th of September, [LKF], having yet filed, despite the directions, further copious amounts of material, on the 17th of December indicated that she intended to withdraw her application.  She indicated to the Court that she’d given conditions to [MRR] and if he agreed, she would withdraw them.  Most notably in the area of dispute was her demand to have a battery purchased by [MRR] returned to her son and secondly that he write a letter of apology.  This is referred to in paragraph 9 of her submissions filed in the Magistrates Court on the 25th of May 2011.

However, when [LKF] appeared at Court there was some discussion in relation to her intending to withdraw, but as she sets out in paragraph 12 of her submissions, there was an indication that the legal representatives for the respondent indicated that they intended to make an application for costs.  Of course, [LKF] had continually been put on notice about costs which arose several times in the course of the hearings, the mention dates and between the parties.

[LKF]'s claims in relation to the date of the 17th of December are not particularly plausible, especially because she was directed to file material together with a chronology of events by the 4 p.m. on the 28th of October 2010, but failed to do so.  On the 29th of October 2010 she wrote to the Court a document purporting to be a case outline, indicating she was still not sure which witnesses would be available for hearing on the 17th of December, as it was school holidays and just before Christmas.

Despite being directed to provide a full list of witnesses who would be appearing at the trial on the 17th, she did not comply with this direction, but simply arrived on that date, at Court, indicating she was still thinking of withdrawing.

She indicated that she'd made the offer, but as it had not been complied with ‑ sorry, as [MRR] had not complied with the conditions she'd set, she had not yet withdrawn, but was still thinking about it.  The issue of costs arose and, consequently, she decided not to withdraw and pursued her application. 

The fact that on the third date set for hearing, [LKF] had still not organised her witnesses was not sufficient basis for the matter to be adjourned yet again, especially when counsel had appeared with instructing solicitors on all three occasions to proceed to trial.

The trial proceeded with [LKF] giving evidence and being cross-examined.  Her son, [H], also gave evidence and was cross-examined, and a number of evidence was received - Ms Alison Muir and other affidavits - which were accepted without the need for cross-examination; they being of witnesses Rendell, Keo and Brews.^[3] 

Whilst there are aspects which were objected to as being inadmissible or irrelevant, nonetheless, the respondent's solicitors conceded the affidavits could be admitted without any need for cross-examination.

[MRR] was the sole witness for the respondent, as it turned out, and his evidence was heard and a significant amount of cross-examination.  The matter was then adjourned part heard, and adjourned until the 18th of February 2011, which was the next earliest date.  Unfortunately on that date, the Magistrate hearing the matter was unavailable and the hearing was adjourned until the next available date, being the 15th of April 2011.

Prior to this date, [LKF] had again began contacting the registry seeking an adjournment of the 18th of February 2011, indicating that she could not appear.  However, the date was adjourned due to the Magistrate's availability and the matter was set for the 15th of April 2011.

Prior to the 15th of April date, [LKF] began contacting the Noosa Registry seeking an adjournment of that date, indicating that she had a commitment to comply with Federal Magistrate Court orders. 

In yet another voluminous and unnecessary affidavit filed in the Noosa Court on the 25th of May, at annexure A9, [LKF] indicates that she wrote to the Court on the 31st of January 2011 seeking an adjournment of the 18th of February until the next available date.  The adjournment was not granted on the basis of [LKF]'s application, however the date was vacated due to the unavailability of the Magistrate to circuit to Noosa on that day. 

In her letter dated the 31st of January 2011, set out at annexure A9, [LKF] sought for the date to be changed to the next available date.  Indeed, the next available date would have been March, visiting date, but he had no availability and so the matter was adjourned until the earliest possible date, being the 15th of April; there being only one circuit day a month for hearings.

[LKF] was subsequently informed of this date on the 1st of February 2011, and the 18th of February date was vacated and the trial listed for final hearing on the 15th of April. 

On the 1st of March, [LKF], as set out in annexure A6, indicated that she could not attend Court that day as she had obligations to the Brisbane Federal Court regarding orders of that Court.  [LKF] subsequently provided a copy of the Federal Magistrates Court, in particular in paragraph 4D, which provides for [LKF]'s other child to spend half of the gazetted school holidays with the child's father, being the first half in 2011.  It was pointed out to [LKF] by the Court staff that the gazetted school holidays commenced on the 16th of April and that the Family Court order provided for this in paragraph 4G, where day 1 was to be regarded as the day after the break‑up of school, in this case being the 16th of April.

In any case, the matter could not be adjourned until a date because of the unavailability of the Magistrate until late September 2011 due to circuit arrangements and leave of the Magistrate.

Also attached in A6 was the letter from the Court to [LKF] indicating that the trial would continue on that day and warning her that an order may be made or struck out in her absence.  [LKF] had, therefore, over two months’ notice over the Court hearing when she was booking flights for her daughter or arranging to have her daughter’s flights booked to attend contact with her father.  She could well have borne this in mind when making arrangements for her to fly to Melbourne…. 

In any event, that there was only one possible flight to Melbourne, then she had plenty of time to organise either for her son, who was an adult and gave evidence in these proceedings, or other friends to transport the child to the airport, as said, she had two months notice.

Despite being advised of this, [LKF] did not attend the Court on the 15^th of April.  She did not attend either prior to travelling to the airport to place her daughter on the plane, nor upon her return.  Subsequently, the application by the respondent to have the application dismissed was granted.  The application was granted as [LKF] had failed to properly prosecute her case, and also on the basis that her case had been presented in its entirety and she had undertaken a significant amount of cross-examination of the respondent.”

8. [8]
   Subsequently and before turning her attention to the issue of costs (an issue which is also a subject of this appeal and to which separate consideration is given below), the Magistrate reviewed, in some detail, the evidence which she had heard in respect of the application before her.

9. [9]
   In doing so, the Magistrate also effectively decided that the appellant had not made out any entitlement to an order pursuant to s 20 of the DFVPA, on the evidence that she had heard up to that point.  In this regard, it can be noted that the appellant had in the course of the hearing conducted on 17 December 2010, effectively presented her case and the respondent was in the process of being cross-examined by her, when the failure to attend on 15 April 2011 occurred.^[4]

The Appeal

10. [10]
    The appeal in this matter is brought pursuant to s 63 of the DFVPA, which relevantly provides:

11. [11]
    Pursuant to s 65(1) of the DFVPA:

 “An appeal under section 63(1) is by way of rehearing on the record and under the rules of court applying to the District Court or, in so far as those rules can not be applied to such appeals, in accordance with directions given by a District Court judge.”

12. [12]
    The powers exercisable by this court are set out in s 66 of the DFVPA, which provides:

13. [13]
    In Bell v Bay-Jespersen^[6]it was observed that the appeal provided by these provisions “is equivalent in procedure and effect” to that provided under s 222 of the Justices Act 1886 and in respect of appeals brought under the Justices Actprovision, the Court of Appeal has endorsed an approach which requires this Court to undertake a review of the record of proceedings and to form an independent conclusion as to the orders made, having due regard to the decision that was made and any advantage that the Magistrate had in making that decision^[7].

14. [14]
    Of particular significance in this case was the position of the Magistrate is seeing and hearing the witnesses and dealing with the parties, as the proceeding developed. This gave the Magistrate a considerable advantage in respect of deciding the credibility issues that arose. In that regard and having heard evidence, including cross-examination of both the appellant and the respondent, the Magistrate expressed preference for the evidence of the respondent.

15. [15]
    “[T]he constraints marked out by the nature of the appellate process” are the subject of observation in Fox v Percy^[8], and include observations to the effect that:

1. (a)
   An appeal by way of rehearing is generally to be distinguished from a rehearing de novoor “a completely fresh hearing by the appellate court of all the evidence”;

2. (b)
   Rather and subject to particular statutory provisions, an appeal court generally proceeds “on the basis of the record and any additional evidence exceptionally admitted and that an appeal process involves ‘natural limitations’, including ‘the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share”;

3. (c)
   That, in part, appeals were introduced to prevent and cure miscarriages of justice that may occur due to mistakes “including serious mistakes [that] can occur at trial in the comprehension, recollection and evaluation of evidence” and that the reasons for decision required of judicial officers enhance the utility of such a process; and

4. (d)
   An “appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance”.

16. [16]
    More recently and in Merrin v Commissioner of Police; Merrin and Anor v Commissioner of Police^[9], the earlier observations made in Teelow v Commissioner of Police^[10]were cited with approval.  This included the following:

Review of the dismissal of the application for protection order

17. [17]
    Ultimately and on the evidence that she had heard (which had included written materials in the form of affidavits and other documents), the Magistrate concluded that there was no act of domestic violence established, on the balance of probability.

18. [18]
    In proceeding on this examination of the evidence, the Magistrate correctly identified that in order to make out any entitlement for relief under s 20 of the DFVPA and in addition to proof of at least an act of domestic violence by a person who is a domestic relationship with another person, there must be proof that:

19. [19]
    If made pursuant to s 20(1) of the DFVPA, such relief is called a “protection order” in the Act and the Magistrate specifically noted the protective nature of this legislative remedy and the potential need to have to consider the likelihood of future  behaviour, if a past history of any domestic violence was established. 

20. [20]
    There was no issue raised before the Magistrate as to the parties being in a domestic relationship. The Magistrate specifically noted:

“[LKF] and [MRR] had known each other, as indicated, for a relatively short time, but are the parents of a child who was then just over two years old, now almost three.  The parties, in fact, separated prior to her birth but have had ongoing contact with each other as a result of shared parenting.”^[11]

 Earlier, the Magistrate had recorded a view that:

“Since the child’s birth, the relationship has been fractious, to say the least and arrangements for the child’s parenting still remains before the Federal Magistrates Court.”^[12]

21. [21]
    Presumably the matter proceeded on the basis that the domestic relationship was an “intimate relationship” within the meaning of s 12A(2) of the DFVPA.

22. [22]
    However, the main focus of the Magistrates attention was upon the fundamental requirement of proof of past domestic violence. In this regard, the Magistrate noted what she described as the wide ambit of the definition of domestic violence in s 11 of the DFVPA and correctly noted that apart from one allegation, the appellant’s contentions were as to intimidation or harassment of her, in the context of her ongoing relationship with the respondent, as the estranged parents of the child.

23. [23]
    In respect of the allegations of domestic violence in the nature of intimidation or harassment, the Magistrate referred to the examination of these concepts in this legislative context, by McGill DCJ in Bottoms v Rogers^[13]and specifically the conclusions that:

24. [24]
    However and in my view, the Magistrate correctly identified in her review of the incidents relied upon by the appellant as instances of intimidation or harassment of her, that either the appellant had not produced evidence to confirm her suspicion that the alleged conduct was done by or at the behest of the respondent, including by any undermining of his denials of any such involvement^[15], or where there were admitted incidents of engagement between the parties, that any intimidatory or harassing conduct had occurred.  By way of example, are the following extracts from the Magistrate’s reasons:

“The next incident complained upon by [LKF] is the intimidation she felt when she relocated to Townsville.  [LKF] appears to be of the view that any assertion of legal rights, which may not conform with her wishes, is an act of harassment and intimidation.  Upon her relocation [MRR] contacted her to establish where she was, as he was clearly within his rights to know where his daughter was in order to avail the child of her rights under the Act.  That is, to have contact with him as well. 

There is no way that any of the behaviour complained upon by [LKF] in her relocation to Townsville could be construed as intimidation.  If every person who sought to ensure that their child had their contact with them pursuant to agreements or orders of the Court were held to be harassing the former partner, there would be many children who would be denied their rights to have contact with their parents. 

… She fails to differentiate between the pursuit of legitimate legal avenues and acts of domestic violence.”^[16]; and “[LKF] also sought to rely on her alleged texting [MRR] to stop texting her when she was in Adelaide.  However, again, she fails to understand her obligation in relation to her child’s rights to contact with her father, and the fact that she initiated texting and then cries foul that she wishes to allege domestic violence is not lost on the Court.  She fails to again differentiate between a person taking a different opinion to her and domestic violence.”^[17]

25. [25]
    Further and as noted by the Magistrate and in instances where the evidence of another witness was called by the appellant to support her case, on analysis it did not do so. That was particularly so in respect of the one allegation of “wilful injury” as an act of domestic violence, which was dealt with by the Magistrate as follows:

“…. The one incident, in relation to which [MRR] allegedly ran into [LKF] with his car was also relied upon. 

Allegedly, [LKF] was placing the child in the car when [MRR] drove off, knocking her.  In relation to this, of course, if she was injured this would be an act of domestic violence.  However, again I accepted the evidence of [MRR], that this was an accident, as I found him a credible and honest witness, though obviously extremely frustrated with [LKF] and her behaviour.

More importantly, however, in relation to this evidence I accepted the evidence of [H], [LKF]’s own son who gave evidence on her behalf, who confirmed it indeed was an accident, and that [MRR] immediately apologised, which was accepted.

I find that Mr – as [MRR] was beginning to move off, [LKF] was still in range of the car, and that the car door knocked her slightly.  I accepted that at the time [LKF] accepted the apology and also accepted it was an accident.  I cannot find, therefore, that this was an act of domestic violence on the evidence presented.”^[18]

26. [26]
    Another example was summarised by the Magistrate as follows:

“The next issue is in regard to the failure to return a battery.  [LKF] complained and I know that her application sought that he return it, that she complained that [MRR] removed a battery which he had purchased for her son for the renovation of a motor vehicle and that this was an act of intimidation and harassment.

She claims that the battery was removed and that [MRR] refused to return it.  The evidence of her son [H] was insightful in this regard, in that he admitted that the battery had been purchased by [MRR] to help him restore an old jeep motor vehicle. 

He accepted that the battery was flat and being unused and he said that he and [MRR] had in fact removed the battery together for [MRR] to take it and charge it.  I accepted the evidence of [H] who tried to give straightforward answers, who unfortunately and sadly, had been drawn into this affair by his mother and forced to participate in proceedings for which a young man of 18 was not, in my view, entirely appropriate. 

[H] gave evidence that he – the car had been going to be restored, but he had not been able to restore it and the battery had been removed, but the engine was not.  The battery had been removed. 

[MRR] gave evidence that he had purchased the battery in an attempt to get the vehicle going, as it had intended to be a bonding project between he the son of [LKF].  He said that after separation the vehicle remained sitting and the battery went flat and as the vehicle had not been restored there was no way the engine could even be started to use the battery.

As it was an expensive battery paid for by him, he removed the battery to charge it, but then upon separation knew there was little purpose in returning it to the vehicle, as it would only go flat again as the motor vehicle could not be turned on and thus the battery could not be used.

I accepted the evidence of [MRR] in this regard, largely as it was corroborated and supported by the evidence of [H] himself and cannot find such an act to be intimatary [sic] or one of harassment.”^[19]

27. [27]
    Unfortunately for the appellant and notwithstanding the copious materials presented by her in support of her application, a review of these materials and the evidence called in the hearing, demonstrates that the application and the pursuit of it was both misconceived and misguided.

28. [28]
    While sight should not be lost that in proceedings of this kind, the Magistrate was “not bound by the rules or practice as to evidence”,^[20]the inescapable conclusion is that the Magistrate was correct in concluding that not only had the appellant demonstrated a want of prosecution of her application but also that it was fundamentally flawed and doomed to fail.

29. [29]
    In particular, much of the appellant’s application depended upon proof of intimidation or harassment of her. Whilst those concepts are to be judged by a criterion of the impact of behaviours upon the person to whom they are directed, the essential enquiry is an objective one. Accordingly, there is no requirement of proof of any particular intent or state of mind or other subjective requirement in relation to a respondent’s actions.^[21]Similarly and without the fact of intimidation or harassment being objectively established, it will usually not be enough that an applicant subjectively regards particular conduct as intimidation or harassment.  Although in some circumstances, particular characteristics of the parties or their relationship may be relevant to a conclusion as to whether domestic violence in the nature of intimidation or harassment has occurred.^[22]

30. [30]
    In this instance and whilst it may be discerned that the appellant holds and has strongly expressed views that she is intimidated and harassed by various behaviours of the respondent, as the Magistrate found, she failed to establish either that he was in any way responsible for conduct of which she suspected him or, where his conduct was established, that it did involve intimidation or harassment. In the latter respect, her views, no matter how genuinely she may hold them or how stridently she may express them, are insufficient. By way of example, even on the hearing of this appeal, she maintained such views, partly expressed as follows:

“I also believe [MRR] should have the Domestic Violence Order on him, because of his further harassment through texts and falsely worded letters, and to stop him and his father from entering our property while we are not home....  He has become more of an emotion or psychological abuser, through his letter writing, as his statements in his letters are false, and misleading to anyone that reads them.  I believe he needs help to overcome, using our child to control the lives of myself and my children, and would prefer that he get help, or an order that restrains him from writing letters, or false misleading comments, that put me down as a mother and person, and a restraint that he not send falsely worded texts, in fact he should be restrained from texting me at all, because of their misleading content.”^[23]

31. [31]
    Although such conduct may, to an extent, be subject to regulation in the course of family law proceedings, such as stood as context to the issues arising in this case, that would not necessarily prevent a protection order being made under the DFVPA, if the circumstances warranted such an order.

32. [32]
    As has been noted, from the material produced in relation to these proceedings, it is possible to discern a high level of disputation between the parties over many issues relating to their child and their direct and indirect contact in that respect and in the correspondence to which the appellant points, some abusive and degrading references to the appellant may be found. Whilst such conduct is unacceptable and not to be in any way condoned, it simply does not necessarily follow that such conduct amounts to intimidation or harassment of the appellant for the purposes of applying the DFPVA.

33. [33]
    Also and to the extent that the appellant relied upon evidence confirming her distressed reaction to her ongoing battles with the respondent, that obviously occurs in a wider context of the ongoing litigation in the Federal Magistrates Court and the drama of the subject matters of that litigation. It is, at the very least, difficult to discern how particular reactions may in this context be teased out in respect of any particular incidents. Also and as an example of an aspect relied upon by the appellant, the fact that she may have been in tears after the incident involving the car door, does not point to a finding of any act of domestic violence. Such an occurrence is equally consistent with the circumstances found by the Magistrate.^[24]

34. [34]
    Further and in the course of these proceedings, the appellant has demonstrated that she is not a person who is particularly timid or likely to be easily cowed by assertive or even overbearing behaviour by the respondent and that she is capable of being combative towards him. Each of the parties could be seen, in the context of these proceedings, as particularly focussed on the righteousness of their own position and generally lacking preparedness to yield any ground to the position or point of view of the other.

35. [35]
    In the circumstances, it was appropriate for the Magistrate to dismiss the application and not apparent that any different decision should have been reached.

Further evidence

36. [36]
    In the material provided for the hearing of this appeal, the appellant identified that she wished to rely on further evidence and therefore sought leave to adduce such evidence pursuant to UCPR 766(1)(c).^[25]

37. [37]
    At the hearing of this appeal, the appellant conceded that the Magistrate had before her all of the evidence of the respondent’s alleged domestic violence up to 17 December 2010.^[26]However, she pressed that this court allow her to adduce and consider in support of her application, what she contended as recurring intimidation and harassment of her by way of correspondence to her from the respondent, which contained false assertions and derogatory and/or abusive references to her.  She also sought to support her contentions as to the falsity of assertions made in correspondence (largely relating to ongoing tensions and disputations and complaints in respect of arrangements for contact with their child and interactions of the parties in respect of this) by reference to the audio recordings, which she contended related to particular occasions which were the subject of particular assertions in the correspondence.^[27]

38. [38]
    Such leave was refused on 16 November 2011.

39. [39]
    Whilst it is possible to consider facts occurring after a decision which is the subject of an appeal by way of rehearing on the record,^[28]in this case what was sought was to bolster a case which had been considered and rejected by the Magistrate by reference to what was asserted to be repeated examples of similar conduct, as that found not to be instances of domestic violence by the Magistrate. 

40. [40]
    Although and in the first instance, the correspondence was in written form and easily assembled, the proof of the suggested falsity of assertions in the correspondence was obviously likely to be contentious and otherwise an effect was to attempt to run a new case based on what were asserted to be more recent instances of domestic violence in the nature of intimidation or harassment of the appellant, where correspondence of similar nature had been considered in the hearing below.

41. [41]
    In these circumstances no special grounds for receipt of further evidence were established.^[29]

Procedural fairness/bias

42. [42]
    Further, the appellant was not denied any procedural fairness. Despite the relisting for 15 April 2011 being ultimately at the instance of the Court, it occurred in circumstances where the appellant had first applied for and been refused an adjournment of the continued hearing which had been listed for 18 February 2011. The appellant had ample notice that the hearing was to continue on 15 April 2011 and her protestations that she was prevented from leaving there by her personal commitment to compliance with her daughter’s travel pursuant to an order of the Federal Magistrates Court, are not convincing. If she was motivated to do so, she could clearly have arranged her affairs so as to be at the Court on that day. It is therefore beside the point that, as the appellant claims, she had also provided a similar period of “notice” that she would not be able to attend on 15 April 2011. The Court was aware of the grounds for her application for a different listing date and the appellant had been amply advised that her request had been denied.

43. [43]
    Further it is apparent that the appellant had by 15 April 2011 already been given a considerable opportunity to cross-examine the respondent and the Magistrate was justified in effectively concluding that a further opportunity to do so or to make further submissions to the Court was not likely to affect the outcome of this case, having regard to the fundamental difficulties underpinning the application and the evidence presented in support of it.

44. [44]
    Apart from these considerations, the appellant also came to the hearing on 17 December 2010 purportedly in an unprepared state. This occurred despite the Magistrate having made it clear to her on 1 October 2010 that she would be then required to present her case and have all witnesses available for cross-examination. She was not so prepared because, in the days immediately prior to 17 December 2010, she had expressed a desire (which she also expressed to the Court on 17 December 2010) to withdraw her application, if the respondent would agree to some conditions stipulated by her.^[30]

45. [45]
    However and because those demands were not acceptable to the respondent, the appellant was then faced with the need to proceed with her case.^[31]

46. [46]
    As has already been noted above, the appellant was not able, on her application for the introduction of new evidence on this appeal, to identify any substantial evidence that she was thereby deprived of having the Magistrate consider and on a review of the evidence before her, the Magistrate appropriately came to a decision about the lack of substance in the appellant’s case.

47. [47]
    There is also no merit in the appellant’s claim that the Magistrate was or exhibited bias towards her. The Magistrate who determined this matter had dealt with it on each occasion it was before the Court at Noosa, except for 8 April 2010 when the respondent first appeared after service of the application.^[32]Whilst it is true that during the hearing on 17 December 2010, the Magistrate, at times, addressed the appellant in direct and unsympathetic terms, particularly when pressed with some of the difficulties then confronting the appellant as that hearing proceeded, it is obvious that by that time the Magistrate was familiar with the case and the written materials which had been filed and the issues which arose.  As the Magistrate pointed out, much of the appellant’s predicament was due to her own conduct of the case, in circumstances where she had already been given significant latitude as an unrepresented litigant.  The firm approach in proceeding to hear this matter on 17 December 2010 (and for that matter, in the face of the appellant’s effective decision to not attend the Court on 15 April 2011) was not inappropriate. 

48. [48]
    Moreover on a review of the record, it is not apparent that the Magistrate did not or may not have brought an impartial mind to the determination of this matter.^[33]For example one indicia of this, as pressed by the appellant as indicative of this bias and the unfairness of the hearing in the Magistrates Court, was a complaint that “the magistrate stated that she couldn’t hear [the respondent] name calling on her ipod”, but when the appellant was provided with an opportunity to play this recording at the hearing of this appeal, it was apparent and the appellant conceded that the assertions she sought to prove were not clearly discernable from replaying the recording.^[34]

Costs

49. [49]
    Of more concern is the appellant’s complaint that she was, upon dismissal of her application, ordered to pay the respondent’s costs on “an indemnity basis”^[35]and in the amount of $24,550.

50. [50]
    Such an order was expressly sought by the legal representatives of the respondent, who, unlike the appellant, had been legally represented throughout the proceedings. The appellant had been unrepresented throughout and had pursued these proceedings herself.

51. [51]
    The Magistrate determined that:

“The Domestic Violence Family Protection Act [sic] gives the court power to order costs where the court dismisses the applications as malicious, deliberately false, frivolous, or vexatious, as set out in section 61.”^[36]

52. [52]
    In the context of the lengthy outline and findings made by the Magistrate as to the conduct of the proceedings, up to and including 15 April 2011,^[37]the Magistrate made findings that the appellant had been dilatory in her conduct of her case, had “consistently sought to adjourn matters for her own purposes”, with adjournments being granted and costs thrown away when medical certificates were produced (with evidence subsequently emerging of her attending her daughter’s birthday party at Aussie World in one period covered by such a certificate and also in respect of claims of hospitalisation being proffered on the basis of attendance at hospital emergency departments, with complaint of pain).^[38]

53. [53]
    Further, it was noted that the appellant had failed to establish any acts of domestic violence by the respondent and had failed to comply with directions, particularly in producing “voluminous amounts of material”^[39], with the observation:

“She consistently files repetitive and voluminous affidavits which are confusing and lack any order, or in some cases, substance going to the allegations.  No doubt this has caused enormous expense to the respondent in relation to defending this matter.”^[40]

54. [54]
    However, the Magistrate expressly recognised that she had “to decide whether the application can be considered malicious, deliberately false, frivolous or vexatious”.^[41]The Magistrate then proceeded to make findings that:

1. (a)
   There was “an intricate link” between the bringing of this application and an attempt to enhance the appellant’s position in the Federal Magistrates Court;^[42]

2. (b)
   “Some of the claims by [LKF] could be described as nothing other than frivolous”;^[43]and

3. (c)
   “She concedes that she previously brought applications against the respondent, who is then forced to incur legal fees to defend them, and then withdrew them is, of course, indicative of that.  That, of course, is not my concern in relation to this matter, but it is reflective of [LKF]’s inability to show any concern for her behaviour and action. ‘Malicious’ refers to any course of conduct taken with malice.  The conduct of [LKF]’s submissions continue to show the malice with which she reviews and treats [MRR].  Her allegations, which are baseless and bordering on paranoia, can only be grounded in malice according to the respondent for the purposes of the Federal Magistrate proceedings.”^[44]

55. [55]
    Accordingly the Magistrate found:

“I am of the view, therefore, that the application should be dismissed on the basis that it was frivolous and malicious and thus a costs order may well be appropriate.”^[45]

56. [56]
    Having done so, the Magistrate then proceeded to examine some authorities dealing with the principles upon which indemnity costs might be ordered, before doing so.

57. [57]
    However there is nothing in the DFVPA which provides any warrant for ordering costs on an indemnity or any other basis.  As has already been noted, the provisions of the Uniform Civil Procedure Rules (which do make such provision) are not applicable. 

58. [58]
    In this regard, I am not satisfied that the approach of the Magistrate in identifying s 61 of the DFVPA as a source of power to make a costs order (subject to the expressed fetter or pre-condition to making such an order) was correct and this potentially has significant implication for the order that was made, assuming for the moment that the finding of a frivolous and malicious application (which is challenged by the appellant and considered separately later in these reasons), was appropriate.

59. [59]
    The first thing to note is that s 61 is expressed in terms of limitation of rather than provision of, a power to award costs and the implication appears to be an assumption that the court otherwise has power to make such an order. Secondly, it can be noted that, relevantly to the present issue, s 38 of the DFVPA provides:

60. [60]
    Reference to Division 8 of the Justices Act reveals provisions empowering courts dealing with complaints made under that Act, to make costs orders^[46]and provisions that regulate the making of such orders, including as to how much may be awarded^[47], the inclusion of the amount awarded in the final order^[48]and as to how such an award may be recovered^[49].

61. [61]
    In making these observations, I am conscious of the decision of Dorney QC, DCJ, in HMG v BRC^[50], where His Honour touched upon similar issues.  However His Honour, it can be noted, did not have to consider the wider issues that arise here and whilst his reasoning may to an extent proceed upon an understanding that the source of the power to order costs was s 61, the decision turned only on the conclusion that there was “a strict limitation on the power…. and the conditions for the application of that power [had] not been met.”^[51]

62. [62]
    Otherwise Dorney QC, DCJ noted the effect of the decision in Tamawood Limited v Paans^[52]in underlining the need to identify an express statutory power for the court to make a costs order.  His Honour provided the following useful summary (which is applicable to the present situation):

“[58] The power given to a court such as the Magistrates Court to order costs does not reside “inherently”. As demonstrated by Keane JA in Tamawood Limited v Paans [2005] 2 Qd R 101, it is clear that the power of a court or tribunal to award costs to a party is “now the creature of statute”, citing, among authorities, Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 193: at 110 [23]. As further expressed, the nature and extent of that power can only be discerned by a close consideration of the terms of the statute which creates the power and prescribes the occasions for, and the conditions of, its exercise: also at 110 [23]. Lastly, he noted that, in the performance of this task, observations of the courts in relation to the operation of other statutory regimes relating to the costs may afford general assistance “but they cannot be allowed to distract attention from the terms of the particular statute in question”: also at 110 [23].

[59] It is also relevant to note that s 38(2)(a) – referred to earlier – states that, to remove doubt, it is declared that for proceedings under the Protection Act for a Magistrates Court, or magistrate, the provisions of the Justice Act 1886 apply to the proceeding “unless” the application of that Act is inconsistent with the Protection Act. Thus, if any other statutory power is to be identified as the possible source of the power to award costs (prior to an appeal), it must be the Justices Act 1886 rather than the Uniform Civil Procedure Rules 1999.”^[53]

63. [63]
    If the source of power to make costs orders is to be found, relevantly to the circumstances of this case, in s 158 of the Justices Act, it can be noted that the power is there expressed to be exercisable “when justices instead of…. making an order dismiss the complaint”.  As the record in this case demonstrates, proceedings under the DFVPA are commenced by lodgement of an application form.  Although there are provisions in the DFVPA that are premised on there being such a document^[54], there is no expressly stated requirement as to the lodgement of such a document or as to how proceedings under this Act are commenced.

64. [64]
    Having regard to s 38(2) of the DFVPA, it is necessary to consider the provisions of the Justices Act, which, by s 42 of that Act (and in the absence of other express provision or where an arrest without warrant has occurred) requires the commencement of proceedings by written complaint.  Further and in order to understand the references to “complaint” in that Act, it is necessary to have regard to the definition in s 4:

“complaint includes the terms ‘information’, ‘information and complaint’, and ‘charge’ when used in any Act, and means an information, complaint or charge before a Magistrates Court.”

65. [65]
    It can be seen that the application form utilised here serves a similar purpose to a complaint, in setting out and particularising and informing as to the allegations made for the purposes of enliving the court’s power to make a protection order^[55]and such a document may properly be regarded as within that defined term in the Justices Act.

66. [66]
    Consequently and by that line of reasoning, s 158 of the Justices Act may be identified as the source of power for making a costs order, when the pre-condition to making such an order, as set out in s 61 of the DFVPA, is satisfied.  No inconsistency arises and except for s 158A (which will be inapplicable having regard to its own terms), the succeeding provisions in Division 8 also apply, without inconsistency, to provide the mechanisms by which the costs are assessed, ordered and recovered, which features would be absent if s 61 of the DFVPA was considered the source of the power, to the exclusion of the Justices Act provisions.^[56]

67. [67]
    It is necessary to also observe that the conclusion as to the applicability of ss 158 and 159 of the Justices Act and which require any order for costs to be made or specified as part of the order of dismissal, assists in removing any concern that this appeal against the costs order is competent. 

68. [68]
    Otherwise and on the face of s 63 of the DFVPA, there may be a concern that the right of appeal is limited to the refusal or dismissal of the application for the protection order.  Similar issues that have arisen in respect of appeals brought against costs orders pursuant to s 222 of the Justices Acthave been resolved in favour of recognising the right, particularly in recognition of the final nature of such an order made as part of an order finalising a proceeding on a complaint.^[57]

69. [69]
    Accordingly and before returning to the implications of this for the order made by the Magistrate in this case, it is necessary to consider whether the Magistrate’s conclusion that the pre-condition for making any such costs order, was satisfied, was a correct and appropriate one.

70. [70]
    At the outset it must be observed that in this regard the Magistrate had a considerable advantage of seeing and hearing the witnesses and dealing with this matter over a considerable period. That advantage lies in being able to assess this evidence and the circumstances of the application in a way which may not be apparent, on a more sterile and after the event perusal of the written record.

71. [71]
    The essential findings of the Magistrate for her conclusion, have been set out above.^[58]Appropriately, there was no finding that the application was deliberately false and the Magistrate did not express her finding in terms of vexation but rather that “it was frivolous and malicious”. 

72. [72]
    It is unnecessary to here consider whether the pre-condition in s 61 must be satisfied as to the entirety of the application, because the Magistrate purported to consider and deal with the whole application. It may have been insufficient for the order that was made to have simply identified, as the Magistrate did, that some parts of the application were frivolous. However the Magistrate’s consideration of the matter was not so limited and for the reasons to follow, it is not necessary to consider whether any partial order for costs may be made, having regard to s 61, for instance where upon dismissal of an application, it is only identified as being partially within the parameters of the pre-condition.^[59]

73. [73]
    In Mudie v Gainriver Pty Ltd & Anor No 2^[60]the Court of Appeal considered the meaning of a pre-condition to making a costs order in an otherwise no-costs jurisdiction, expressed in s 7.61(A)(a) of the Local Government (P & E) Act 1990, as follows:

74. [74]
    In the joint judgment of McMurdo P and Atkinson J, it is observed:

“[35] The words "frivolous or vexatious" are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process. By the time an application for costs is made, the court knows the issues which have been litigated whilst a interlocutory applications, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action. The Macquarie Dictionary defines ‘frivolous’ as ‘of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection. 2. characterised by lack of seriousness or sense: frivolous conduct …’ and ‘vexatious’ as ‘1. causing vexation; vexing; annoying …’.

[36] Unquestionably, something much more than lack of success needs to be shown before a party's proceedings are frivolous or vexatious. Although in a different context, some assistance can be gained from the discussion of the meaning of these words in Oceanic Sun Line Special Shipping Company Inc v Fay where Deane J states that ‘oppressive’ means seriously and unfairly burdensome, prejudicial or damaging and ‘vexatious’ means productive of serious and unjustified trouble and harassment, meanings apparently approved by Mason CJ. Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd. Those meanings are apposite here.

[37] Whether proceedings are vexatious or oppressive will turn on the circumstances of the case and will include public policy considerations and the interests of justice.”  (Citations omitted)

75. [75]
    In a separate judgment Williams JA wrote:

76. [76]
    Similarly an ordinary meaning of the word “malicious” is to be adopted. The Macquarie Dictionary (5^thEdition) provides the following definitions:

“malicious… 1.  full of, characterised by, or showing malice; malevolent.  2.  law motivated by vicious, wanton, or mischievous purposes, as in malicious arrest, malicious injuries to persons or property, malicious prosecution, etc.”; and

“malice… 1.  desire to inflict injury or suffering on another.”

77. [77]
    It is obviously of some relevance to the issue of costs, to note that, on 3 September and 17 December 2010, the appellant expressed a desire to withdraw her application, on the conditions stipulated by her. That situation was obviously complicated by the understandable concern of the respondent as to the considerable costs which had already been incurred and his desire to seek recompense for that. However and notwithstanding what may have been a misapprehension on the part of the defendant as to the extent to which he could recover those costs, it was the appellant who chose to proceed and thereby ensured that further costs would be incurred by the respondent and that she may become liable to pay costs, if s 61 of the DFVPA was satisfied, as the Magistrate subsequently found it was.

78. [78]
    On a review of this aspect, I would also find that precondition satisfied. Although I do not necessarily share the Magistrates conclusion that the circumstances warranted a finding that the application was malicious, the Magistrate correctly found that the application was, in part, frivolous and otherwise, having due regard to the underlying lack of merit in the application and the way it was pursued (including on and after 17 December 2011, when the applicant had apparently an option of withdrawing the application) and the conduct of the appellant in not pursuing her application on 15 April 2011, I would find that the application should have been dismissed as vexatious.

79. [79]
    It can be added that such a conclusion flows from the identified considerations and as a feature of the appellant’s conduct of this case, which extends beyond what might be expected as to the usual difficulties encountered by a litigant in person in dealing with the demands of conducting litigation.

80. [80]
    However and for the reasons expressed above, the assessment of the costs that may be allowed consequently to that finding, is regulated by s 158B of the Justices Act, which provides:

81. [81]
    Reference to the scale provided in the Justices Regulation 2004^[61]discloses that the only items for which costs may be allowed and “the amount up to which costs may be allowed for each item”^[62]are relevantly set out in Pt 2, as follows:

82. [82]
    Otherwise it is necessary to note that an item in Part 2 “covers all legal professional work, even if done by more than one lawyer”^[63]and that it is provided that:

83. [83]
    In addition and pursuant to item 5 in Schedule 2 of the Justices Regulations 2004:

“travelling, and other expenses of a lawyer acting as advocate, may be allowed to the extent they have been reasonably incurred and are paid or payable.”

84. [84]
    Accordingly, the following events involving Court attendances may be identified for the purpose of applying the prescribed scale of costs:

• On 8 April 2010, the respondent was legally represented, on the return date of the application, after it had been served on him and he unsuccessfully resisted the making of a Temporary Protection Order and the application was adjourned to 18 June 2010, for hearing.
• On 18 June 2010, the respondent appeared with counsel and instructing solicitor but the hearing did not proceed, primarily because of complications leading to the unavailability of records which had been subpoenaed by the appellant.  It was the appellant’s application for adjournment which was opposed by the respondent but indulged by the Magistrate with an adjournment for hearing on 17 September 2010, with a review listed for 3 September 2010.  Directions were given as to the filing of separate affidavits of the witnesses relied upon by the appellant.
• On 3 September 2010, the respondent’s solicitor appeared by telephone.  The hearing for 17 September 2010 was confirmed, despite the appellant’s application to postpone it and her having only just and belatedly complied with a direction to have earlier prepared and served her material.  It can be noted that the appellant provided an indication of wanting to withdraw her application, if the respondent agreed to some specified conditions.^[65]
• On 17 September 2010, the respondent appeared with counsel and instructing solicitor but the appellant did not and the hearing was adjourned (over the respondent’s objections) to 1 October, for review.  This was due to the appellant’s purported illness as evidenced by a medical certificate which had been forwarded to the Court.  A prospective hearing date of 17 December 2010 was noted and the Temporary Protection Order was not enlarged on this occasion.
• On 1 October 2010 the respondent appeared, with his solicitor appearing by telephone and despite the appellant’s request for another date, the matter was adjourned to 17 December 2010 for hearing, with a direction that no further material was to be filed. 
• On 17 December 2010 and as has already been noted, the hearing proceeded, despite the appellant initially presenting to the Court that she had proposed the withdrawal of her application if the respondent agreed to specified conditions (which were not accepted by the respondent) and not being prepared by having all of her witnesses immediately available for cross-examination.  The Magistrate correctly pointed out that she had made it expressly clear to the appellant, on 1 October 2010, that apart from some witnesses who were to be allowed to give telephone evidence, the appellant was required to have her witnesses available on this date.  Eventually the hearing proceeded on the respondent’s concession that some affidavits could be relied upon without cross-examination.
• On 15 April 2011 and as discussed in some detail above, the appellant failed to appear when the hearing of this matter was listed to continue;
• On 3 June 2011 the Magistrate delivered her judgment in this matter and made the formal orders dismissing the application and awarding costs to the respondent.

85. [85]
    At all times in the Magistrates Court (and in this Court) the appellant has not been legally represented.

86. [86]
    All proceedings before the Magistrate were conducted at Noosa and apart from 3 September 2010, 1 October 2010 and 3 June 2011, when the lawyers were permitted to appear by telephone, the respondent’s Brisbane based lawyers were required to travel to the Court at Noosa.  However, the material placed before the Magistrate on the respondent’s costs application only evidenced professional costs incurred by the respondent, which whilst including costs at professional rate for travelling time did not include any reference to any travelling or accommodation expenses of any lawyer acting as advocate for the respondent.

87. [87]
    Accordingly and pursuant to the scale of costs under the Justices Regulation 2004 and subject to considering s 158B(2) of the Justices Act, the following may be allowed under the scale for each of the identified costs events:

88. [88]
    In each instance (apart from 1/10/10) the amount evidenced as actually incurred exceeds the applicable scale maximum and it is therefore appropriate to allow the scale amount. In respect of 1 October 2010 and because it is a lesser amount, the actually incurred amount of $150 may be allowed.

89. [89]
    A conclusion that the precondition in s 61 of the DFVPA is satisfied, does not necessarily mean that it is just and reasonable to allow a higher amount pursuant to s 158B(2) of the Justices Act.  However and in this case, it is apparent that the complexity of the matter was necessarily exacerbated by the appellant’s approach to the matter and particularly by her reliance on voluminous and unorganised written materials.

90. [90]
    In my view, the correct approach in these circumstances is that identified by McGill DCJ in Durrant v Gardner^[66]. Even where, as here, there is a discretion to award an amount exceeding the scale amount, the proper exercise of that discretion requires regard to be had to the scale as a guide.

91. [91]
    In all of the circumstances, I would allow twice the scale amount for the events where actual hearing of the application was involved or envisaged (but not for the more straightforward events to be regarded as mentions). Accordingly, this involves the allowance of the following additional amounts:

The total amount is then:  $9,150.

Conclusion

92. [92]
    Accordingly the appeal is allowed, to the limited extent of varying the order of the Magistrate as to the amount of costs to be paid by the appellant, from an amount of $24,550 to an amount of $9,150.

93. [93]
    The order made by the Magistrate on 3 June 2011 had required payment of the amount ordered for costs, on or before 3 August 2011. When this matter first came before this Court on 9 September 2011 a sum of $24,550 had previously been paid to and was being held by the Registrar of the Magistrates Court at Noosa.  Interlocutory applications were respectively made by the appellant and the respondent.  The appellant applied for a stay of execution of the Magistrate’s order and the return of the money paid into court.  The respondent applied for security for costs so that the appeal might be allowed to proceed.  The orders made in those circumstances were for a stay of the execution of the Magistrate’s costs order and that the Registrar of the Magistrates Court at Noosa continued to hold the paid in sum of $24,550, pending the hearing and determination of this appeal, with the costs of those applications being reserved.

94. [94]
    Accordingly the orders of the court are:   

95. [95]
    As recently confirmed in Merrin v Commissioner of Police^[68], a litigant who is not legally represented is unable to recover costs or expenses except for court fees.  In this court, only the respondent has been legally represented and that only occurred in respect of the interlocutory applications which came before the court on 9 September 2011.  The results of those applications were, just as was the result of this appeal, mixed as far as relative success is concerned.  However and as indicated at the conclusion of the hearing of this appeal, I will give the parties an opportunity to be heard as to the costs of the appeal, which and unlike the position before the Magistrate, is governed by the UCPR^[69].