Even if it isn’t an immediate priority, at some point an applicant (the person protected) and the respondent (the person bound) by a restraining order, whether a violence restraining order (VRO) or a misconduct restraining order (MRO), will likely want to know what their position is with respect to orders made by the court as to legal costs.
Restraining orders in Perth & Western Australia are treated as though they are civil matters, not criminal (although breaching a restraining order is a criminal offence). Accordingly, the party who gets an order of the court in their favour usually can make an application for some of their legal fees to be paid by the other party. This is known as a ‘costs order’.
If the person protected has an order for a violence or restraining order made in their favour, they can make an application for payment of at least some of their legal fees. Usually the court will assess the complexity of the case, and how long it has been going for, before deciding on what is reasonable.
However, the situation is not quite the same for person’s bound by an order. Under the Restraining Orders Act, there are limits on when the court can award costs in favour of a respondent or person ‘bound’. The court can only award costs if it believes that the applicant was ‘frivolous’ or ‘vexatious’. That means that even if a VRO or MRO made against you is dismissed, you may not be able to have costs awarded in your favour at all. The idea is to not cause people to be afraid of getting the protection of a VRO or MRO because they fear a costs order if they are unsuccessful.
The meaning and interpretation of ‘frivolous’ and ‘vexatious’ has been subject to a number of court cases and it is not always clear what a court will hold to be frivolous or vexatious. Broadly however, a frivolous claim is one that has virtually no prospect of success, while a vexatious claim is one brought to annoy or harass the other party.
Stevenson Legal is aware of the costs implications of going to a trial on a Violence Restraining Order or Misconduct Restraining Order matter which is why, if appropriate, we always try to get a negotiated resolution of the matter without the need for a court hearing. However, if the matter does ‘box on’ to trial, we are well placed to advise our client’s on their likely position with respect to costs, and argue the same in court.
While every effort is made to ensure the accuracy of its contents, this article does not constitute, and is not intended to be, legal advice. All cases differ in their circumstances and the only way to obtain reliable legal advice applicable to your circumstances is to arrange a consultation with Stevenson Legal.