If you are seeking a restraining order under the Restraining Orders Act 1997 (WA) in Western Australia, one important consideration is whether the court has the power to order the payment of costs in relation to the application or proceedings. The Magistrates Court is the jurisdictional authority responsible for issuing these orders, but understanding when and how costs may be awarded can be a crucial part of the process.
Jurisdiction of the Magistrates Court Under the Restraining Orders Act
The Act allows the Magistrates Court to make various types of restraining orders, including:
- Violence Restraining Orders (VROs)
- Misconduct Restraining Orders (MROs)
- Family Violence Restraining Orders (FVROs)
These orders aim to protect individuals from threats, harassment, or violence, and can be made after an application has been filed with the court. However, many people involved in these proceedings wonder whether they might be ordered to pay the other party’s legal costs or whether they can recover their own costs.
Does the Court Have Jurisdiction to Award Costs?
In general, the Magistrates Court under the Act operates on the principle that each party bears their own costs unless the court specifically orders otherwise. This means that, in most cases, there is no automatic entitlement to recover costs for either party.
However, the court does have the discretion to make a costs order in certain situations, and these orders can be made based on the conduct of the parties during the proceedings.
When Can the Court Make a Costs Order?
The court may make a costs order in the following circumstances:
- Where an Application is Frivolous or Vexatious: If the court determines that an application for a restraining order was made in bad faith or was without merit (i.e., frivolous or vexatious), it may order the applicant to pay the respondent’s costs.
- Failure to Comply with Court Orders: If either party fails to comply with the procedural rules or court directions during the proceedings, the court may impose costs as a penalty or to ensure that justice is served.
- Unreasonable Conduct: If a party behaves unreasonably or prolongs the proceedings unnecessarily (such as by making spurious claims or opposing a reasonable application), the court may award costs against that party.
- Withdrawal of an Application: If an applicant withdraws the application for a restraining order before the hearing or after the respondent has already incurred costs, the court may decide to order the applicant to pay the respondent’s costs.
How Are Costs Determined?
If a costs order is made, the court will typically order the losing party to pay a portion or all of the legal costs incurred by the other party. The exact amount will depend on the complexity of the case and the conduct of the parties. Costs may include:
- Legal fees: Charges for legal representation in court.
- Court fees: Any incidental costs incurred due to attending hearings.
- Other expenses: Travel costs or other reasonable expenses associated with the proceedings.
Costs orders are not automatically granted in restraining order applications, but parties should be aware of the potential for costs if they are unsuccessful or if their conduct is deemed inappropriate.
How to Minimise the Risk of a Costs Order
While it is difficult to predict whether a costs order will be made in any particular case, there are steps you can take to minimise the risk:
- Make Sure Your Application is Genuine: Ensure that the application for a restraining order is based on reasonable grounds and is not made maliciously or without cause.
- Comply with Court Procedures: Always follow the directions of the court and meet any deadlines set.
- Be Reasonable: Try to resolve the matter through negotiation or mediation, where possible, before the matter proceeds to a hearing.
Conclusion: Seek Legal Guidance for Restraining Order Proceedings
If you are considering applying for a restraining order or are involved in restraining order proceedings, it’s essential to understand the potential for costs orders and how they may affect you. While the general rule is that each party bears their own costs, the court can exercise discretion to make costs orders, especially if one party’s conduct warrants it.
At Fraser & Associates Lawyers, we have experience in guiding clients through the complexities of restraining order applications and proceedings under the Restraining Orders Act. We can help you understand your rights and responsibilities and offer strategic advice to ensure your best interests are protected.
If you need advice or assistance with a restraining order application, or if you’re concerned about potential costs, contact us today.