Grace v Peter

The noteworthy point from this decision was whether a magistrate had erred in refusing to allow an application for a domestic violence order to be orally withdrawn, instead proceeding to purportedly hear, decide, and ultimately dismiss the proceeding, awarding costs against the applicant.

Henry J

30 April 2024

The applicant, who had previously filed an application for a domestic violence protection order against her former de facto husband, attended a summary hearing at which its summary dismissal was foreshadowed. [1]. Concluding that the application had been brought for a “dominant improper purpose”, the magistrate specifically refused to allow the applicant’s counsel to orally withdraw the matter. [3], [57]. Instead she dismissed the application without determining it on the merits and adjourned the consideration of the applicant’s former de facto husband’s foreshadowed application for costs. [3], [4].

Did the magistrate have the jurisdiction to refuse the applicant’s withdrawal of her application and instead continue to hear and dismiss the DVO application?

Justice Henry observed that ending a proceeding by allowing its withdrawal, or dismissing it, are two very distinct prospects. Essential to the latter is a process of substantive judicial decision-making, whereas the withdrawal of a domestic violence order application does not need to be decided to any degree. [34]. Further, the Court simply does not have the capacity to accelerate the hearing of an application by dismissing an application without deciding it, (save for where an applicant does not appear): see s 38 Domestic and Family Violence Protection Act 2012. [39]. In the current matter, in circumstances where the applicant’s solicitor had indicated to the Court at the commencement of proceedings that her instructions were to orally withdraw the application, the complainant had an unfettered right to do so. [79].

His Honour clarified that it was certainly not a core part of his task to determine whether a withdrawal could be rejected by the Court as an abuse of process since, even in the event that was the case, the specific act of withdrawal in this instance did not amount to an abuse of process. That was because the possibility that the application was commenced with a vindictive motive could not, as a matter of logic, render its withdrawal an abuse of process. Here, the applicant had given notice of the oral withdrawal the day before the listed hearing, with a view to having it dealt with at the outset of the appearance, prior to the Court embarking upon any form of substantive hearing. [63]. That could be contrasted to more “extreme scenarios” where withdrawal might constitute an abuse of process, such as discontinuing after a judge announces their decision to grant summary judgment but before an order was made: see Frigger v Holbrook [2015] WASC 469, [48]. [61].

Importantly, his Honour pointed out that whilst it was apparent that the timing of the proposed withdrawal might have caused frustration, the reality was that did not mean that it was an abuse of process. [80]. What had occurred in the present instance was an irregular refusal of an oral withdrawal of an appropriately conceived application:

“It was an improper exercise of power to do so and to instead proceed to decide the application by dismissing it. The withdrawal had the effect that the application was no longer before the court. What followed was in effect a nullity because her Honour had no jurisdiction to proceed to purportedly hear and dismiss an application which had been withdrawn”. [81].

His Honour acknowledged the frustration to practitioners which inevitably results from respondent clients incurring costs whilst preparing to defend domestic violence order applications which are ultimately withdrawn, further noting that this is compounded because the power to award costs derives solely from statute and there is no power in the Act to award costs if an application is withdrawn. He observed that that was by design of the legislature, in an attempt to avoid discouraging “emotionally conflicted applicants” from bringing applications due to the fear of costs liability in the event they subsequently reconsider and withdraw. [64].

Nonetheless, the fact remains that lack of a power to award costs if an application is withdrawn could not of itself provide a possible basis for rejecting or refusing to hear an oral withdrawal:

“Deploying a right of withdrawal of an application before it is substantively heard could not conceivably constitute an abuse of process merely on the basis it deprives a respondent of a chance to argue for a costs order which could only occur in the event of a completed hearing and ensuing dismissal”. [65].

Disposition

The Court declared the application was withdrawn and the orders which had been made after the withdrawal were set aside. [82].

A Jarro