Arsenin v George [2003] ACTSC 33 (12 May 2003)

Last Updated: 13 May 2003

PETER ARSENIN v JACINTA GEORGE (UNIVERSITY OF CANBERRA)

[2003] ACTSC 33 (12 May 2003)

APPEAL - Protection Orders Act 2001 - appellant subject to ex parte interim order which is subsequently withdrawn - appellant seeks to obtain costs by showing application frivolous, vexatious and not honest - failure to consider appellant's application pursuant to s 95 of the Protection Orders Act.

Protection Orders Act 2001, s 95

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 56 of 2002

Judge: Connolly J

Supreme Court of the ACT

Date: 12 May 2003

IN THE SUPREME COURT OF THE )

) No SCA 56 of 2002

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: PETER ARSENIN

Appellant

AND: JACINTA GEORGE

(UNIVERSITY OF CANBERRA)

Respondent

ORDER

Judge: Connolly J

Date: 12 May 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The matter be remitted to the Magistrates Court to be dealt with pursuant to s 95 of the Protection Orders Act 2001.

3. The respondent pay the appellant's costs of the appeal as agreed or taxed.

1. This is an appeal from a decision of Magistrate Dingwall on 27 August 2002 dismissing a notice of motion of the appellant which, on its face, sought to "reinstate" an apprehended violence order matter that had been obtained against him on an ex parte basis on 21 June 2002 on behalf of staff of the University of Canberra (the respondent). Mr Arsenin has been enrolled as a student at that University, and has a complex series of grievances with the University, some of which are presently before the ACT Discrimination Tribunal.

4. The Interim Personal Protection (Workplace) Order was obtained on 21 June 2002 and again, on an interim basis, on 28 June 2002. The matter was listed in the Magistrates Court on 22 August 2002 for a hearing to make permanent the order, but on that occasion counsel appearing for the respondent advised the Magistrates Court that the order was not sought, and so the application was dismissed. The bench sheet records that on that occasion only the respondent was represented, but Mr Arsenin is firmly of the view that he was in fact present on that occasion and sought to be heard, but was not called into the hearing.

5. It is his view that the order should never have been made, and that the making of the order has put him to considerable expense.

6. Following the order, apparently made by a Deputy Registrar on 22 August 2002, that the interim protection order be discharged and the application for a permanent order be withdrawn and otherwise dismissed, Mr Arsenin lodged a notice of motion on that day in which he moved the Court for orders that "I am making application to have the matter (WO 02/007) reinstated". The stated grounds in the notice of motion were (Appeal Book at 6):

"that I have suffered damage and that the plaintiffs action (claim) against me was

1. Vexatious and oppressive.

2. Abuse of process.

3. Bad in Faith.

4. Fraudulent and

5. Abuse of power (and other).

6. Frivolous and Vexatious.

7. When the matter came before the Magistrate on 27 August the transcript (Appeal Book at 17) indicates that the following exchange occurred between the Magistrate and Mr Arsenin after taking appearances:

Well Mr Arsenin, I've read your application and I'm afraid that there's no order I can make on your application.

Your Worship, if I can just have a few brief words to explain myself ---

There's nothing to say. There is no application before the court. The applicant has withdrawn her application, it's been dismissed. That is the end of the matter, it cannot be revived by you.

8. Generally speaking, this would be the case, in that following the withdrawal of an application, the matter is ended. There is, however, a clear power under the Protection Orders Act 2001 (the Protection Orders Act) for the Magistrate to make certain costs orders if the Magistrate is satisfied that an application has been made that is frivolous, vexatious or has not been made honestly, and as a consequence another person has been put to expense.

9. Section 95 of the Protection Orders Act provides:

95 Recovery of certain expenses

(1) This section applies if the Magistrates Court is satisfied that-

(a) an application is frivolous, vexations or has not been made honestly; and

(b) someone (the person put to expense) other than the applicant has reasonably incurred expenses in relation to the proceeding on the application.

(2) The Magistrates Court may order the applicant to pay to the person put to expense an amount, not more than the expenses incurred, that the court considers reasonable.

10. The need for such a provision is clearly apparent. The scheme of the Act, and the public policy underlying it, is that an interim order is relatively easy to obtain. Indeed, the appeal papers in this matter illustrate the sensible administrative procedures that have been put in place within the Magistrates Court to make it easy for an individual to obtain an order. At Appeal Book page 13 is the Application for a Personal Protection (Workplace) Order form, which has been filled out by hand, and which provides a box for an applicant to tick to indicate conduct that can amount to a justification for an order. There is also an affidavit which appears to be in a standard form (Appeal Book at 15) wherein the applicant swears that the statements contained in the application form (the date of which is hand written in the affidavit) is true and correct to the best of the deponent's knowledge and belief.

11. The making of an interim order can have quite severe consequences on the person the subject of the order. It is made on an ex parte basis, without the person the subject of the order having any opportunity to contest the truth of the serious allegations made against them. This opportunity will normally arise at the substantive hearing to make the order permanent, but in this case, as I understand is not infrequently the case, the application was withdrawn. One can well understand that this may be an entirely appropriate process, whereby an order is obtained when there is a degree of conduct that causes concern, and when tensions have eased, the interim order is allowed to lapse, and no permanent order is sought. But in these circumstances, unless the person the subject of the order is heard on the question of whether the order should be withdrawn, they are denied the opportunity of testing the truth of the allegations that formed the basis of the interim order.

12. By making a s 95 application for expenses, such a person can have the opportunity to show that the application was frivolous, vexatious or dishonest. This is, no doubt, a high threshold, and will provide no protection for a person against whom an order was honestly, but perhaps mistakenly, taken out. It is, however, a clear power to consider an application for expenses, which involves, to a degree, the reopening of the merits of the order, at least insofar as it is sought to be shown that the original application was frivolous vexatious, or dishonest. To this extent, a s 95 application can be said to "reinstate" the matter, as the Magistrates Court must consider whether an application previously made, and which must now have lapsed, was made frivolously, vexatiously or dishonestly.

13. It seems to me that this was what Mr Arsenin was seeking to do in his notice of motion, and insofar as the Magistrate opened the proceedings by stating that there was no order he could make, he was clearly in error. It is true that Mr Arsenin, who was not legally represented, did not identify in his notice of motion that he was seeking to invoke the discretion provided in s 95 of the Protection Orders Act in relation to costs and expenses. But he did identify that he was asserting that he had suffered damage, and that the action brought against him was frivolous and vexatious, and that he asserted that it was bad in faith and fraudulent. He has, in effect, identified the test that he must make out in an application under s 95.

14. It is clear from the transcript (Appeal Book at 20, lines 1-15) that Mr Arsenin sought to agitate before the Magistrate his belief that he was entitled to pursue costs and expenses. Indeed, he said (line 11):

Well I have costs as well, I have costs more than just monetary terms. Why can't I seek those costs?

15. Later in the transcript the Magistrate considered the question of costs in relation to his dismissal of Mr Arsenin's notice of motion, and in the exercise of his discretion he decided not to award costs. I do not take from this that he had, without identifying it in truth considered Mr Arsenin's application pursuant to s 95, applied the appropriate test, and formed the view that Mr Arsenin was not entitled to any costs.

16. It seems to me that the Magistrate had before him on 27 August 2002 a notice of motion that, while drafted by a non-legally qualified person, sought to invoke the discretion provided for in s 95 of the Protection Orders Act. Although the notice of motion does not speak of "expenses", the term used in s 95, it did assert that he had suffered damage, and that this was due to the original application being "vexatious and oppressive", "bad in faith" and "fraudulent". At the hearing, Mr Arsenin clearly asked for his costs as a consequence of the original order.

17. In stating that there was no order he could make on Mr Arsenin's application, the learned Magistrate has, it seems to me, clearly erred in law in that he did not apply his mind to the test in s 95 of the Protection Orders Act that provides for the possibility of awarding expenses to a person who has been put to expense by the bringing of an application for a protection order that is shown to have been frivolous, vexatious, or dishonest. This is a substantial hurdle to overcome, but Mr Arsenin was not given the opportunity to make out his case.

18. Mr Flynn, for the respondent, acknowledged, properly, that Mr Arsenin had an entitlement to seek relief pursuant to s 95, while maintaining, quite properly, that such an application would be strongly contested by the respondent. He submitted that the Magistrate had not in fact had this matter before him, and that it was not for the Magistrate to identify with precision the form of relief that Mr Arsenin was seeking.

25. It is true that a busy Magistrate cannot be criticised for failing to properly identify in any litigant in person's potentially voluminous submissions what may be a proper legal point. But in this case Mr Arsenin did identify with what seems to me to have been an appropriate degree of precision for an unrepresented litigant that he wished to claim his "damages" in respect of an order that had been made which he claimed was "frivolous and vexatious". During the hearing, he clearly asked for his costs and expenses. It should have been clear that this was an attempt to invoke the discretion in s 95 of the Protection Orders Act, and in stating that there was no power to deal with his application, the learned Magistrate, it seems to me, has erred.

26. The appeal is upheld. The matter should be remitted to the Magistrates Court to be dealt with pursuant to s 95 of the Protection Orders Act. Mr Arsenin will have the opportunity to put on evidence to seek to show that the application brought against him was, in the terms of the section, "frivolous, vexatious or has not been made honestly". The respondent will have the opportunity to put on evidence to the contrary. The Magistrate will then be able to rule on whether Mr Arsenin has established on the evidence an entitlement to any expenses, and, if so, the extent of any such expense.

27. The respondent should pay the appellant's costs of the appeal as agreed or taxed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 12 May 2003

Counsel for the appellant: Appellant in person

Counsel for the respondent: Mr MS Flynn

Solicitor for the respondent: Mr MS Flynn

Date of hearing: 2 May 2003

Date of judgment: 12 May 2003