When a magistrate makes a decision in a case, the party who was successful can ask the magistrate to make an order that the other party pay their legal costs. This usually includes the costs they have incurred in coming to court – for example, solicitor’s fees or money paid for filing court documents.
Under section 99(3) of the Crimes (Domestic and Personal Violence) Act 2007, costs are not ordered in a private application for an ADVO unless the court is satisfied that the application was ‘frivolous or vexatious’. Frivolous means lacking in substance or with no reasonable prospects of success. Vexatious means to cause annoyance.
Under section 99(4), if an AVO application is made by a police officer, a court will not award costs against a police officer unless satisfied that the police officer made the application knowing it contained matter that was false or misleading.
Some different laws apply to costs orders made in relation to some procedural aspects of ADVO applications such as the exchanging of statements by parties before an AVO hearing. It is important for private applicants and defendants to get legal advice on this issue.
Costs are determined according to the Criminal Procedure Act 1986 (NSW):
- a court may award costs to a defendant if the AVO is dismissed or withdrawn
- the amount of costs to be paid is the amount the magistrate considers ‘just and reasonable’
- if an AVO is made against a defendant after a contested hearing, the magistrate may order the defendant to pay the applicant’s or prosecutor’s costs, if such costs are considered ‘just and reasonable’.