SUPREME COURT OF QUEENSLAND CITATION: KAV v Magistrate Bentley & Anor [2016] QSC 46 PARTIES: KAV (Applicant) v MAGISTRATE BENTLEY (First Respondent) and ALV (Second Respondent) FILE NO/S: SC No 513 of 2015 DIVISION: PROCEEDING: ORIGINATING COURT: Trial Application Supreme Court at Cairns DELIVERED ON: 11 March 2016 DELIVERED AT: Cairns HEARING DATE: 26 February 2016 JUDGE: Henry J ORDERS: 1. It is declared the applicant s application for a protection order was withdrawn on 15 October 2015. 2. All orders of the Magistrates Court made in this matter on 15 October 2015 and subsequently are set aside. 3. Failing notice in writing by 4 pm on 29 March 2016 to the Registrar by the parties to the effect they have agreed as to costs, I will hear the parties as to costs at 10 am on 1 April 2016. CATCHWORDS: MAGISTRATES - APPEAL AND REVIEW - QUEENSLAND - ORDERS TO REVIEW - THE ORDER TO REVIEW - APPLICATION where the applicant seeks a statutory order of review of a decision to prevent the withdrawal of her application for a protection order and the decision to order costs against her where the reviewable matter was the decision to prevent the withdrawal of the application whether the applicant is entitled to seek a review
2 under another law so that the application ought to be dismissed pursuant to s 13 Judicial Review Act 1991 (Qld) PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DISCONTINUANCE AND WITHDRAWAL where the applicant sought to orally withdraw her application for a protection order prior to hearing where the applicant s withdrawal was voluntary and not made under duress whether Rule 50(a) of the Domestic and Family Violence Protection Rules confers an unqualified right upon an applicant for a protection order to withdraw the application orally during proceedings in the Domestic and Family Violence Protection Court before the court decides the application whether the Magistrate erred in refusing to allow the applicant to withdraw her application before the hearing Domestic and Family Violence Protection Act 2012 (Qld) s 8(1)(a), s 8(1)(a)(2), s 12, s 142, s 157, s 164 Domestic and Family Violence Protection Rules (Qld) r 50 Judicial Review Act 1991 (Qld) s 13 Boal Quay v Kings Lynn Conservancy Board [1971] 1 WLR 1558; [1971] 3 All ER 597, cited Fuller v Toms & Ors [2010] QCA 283, cited Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, cited R v Jell, ex parte Attorney-General [1991] 1 Qd R 48, cited Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412, cited COUNSEL: SOLICITORS: G Lynham for the Applicant R Griffith for the Second Respondent O Reilly Stevens Lawyers for the Applicant Miller Harris for the Second Respondent 1 [1] The applicant applied for a domestic violence protection order against her estranged husband, the second respondent. She attempted to withdraw her application at a review mention of the matter 12 days prior to the listed hearing. [2] After hearing further argument at a later date the presiding Magistrate did not permit the application to be withdrawn. Her Honour instead proceeded to hear the application on the papers, dismiss the application and ordered the applicant to pay the second respondent s costs. 1 No appearance was entered for the first respondent (there was evidence of service). The court was advised by an email from Crown Law after my decision was reserved advising, as had in any event been inferred at the hearing, that Crown Law, acting on the first respondent s behalf, took the conventional position of abiding the order of the court.
3 [3] The applicant seeks a statutory order of review of the decisions to prevent the withdrawal of the application and the decision to order costs. As will become apparent it is the decision to prevent the withdrawal of the application which is the substantive target of the application, for if that decision was wrong then the subsequent orders, including the costs order, were beyond jurisdiction. [4] The key issues for determination are: 1. whether the applicant is entitled to seek review under another law so that the application ought be dismissed pursuant to s 13 Judicial Review Act 1991 (Qld) ( Decision reviewable? ); and 2. whether the Magistrate could or should have prevented the applicant s withdrawal of her application for a protection order ( An applicant s right to withdraw an application for a protection order ). [5] To understand those issues it will be necessary by way of background to explain the course this matter took below. That course is more readily understood if the erroneous motivation which drove it is identified at the outset. The erroneous motivation driving events below [6] The Domestic and Family Violence Protection Act 2012 (Qld) ( the DFVP Act ) only confers a limited power to award costs. Section 157 provides: 157 Costs (1) Each party to a proceeding for an application under this Act must bear the party s own costs for the proceeding. (2) However, the court may award costs against a party who makes an application that the court hears and decides to dismiss on the grounds that the application is malicious, deliberately false, frivolous or vexatious. (3) In this section party includes an aggrieved. [7] The effect of s 157 is that three elements must be satisfied before a court s discretion to award costs in an application for a protection order is enlivened: (1) the court must hear the application; and (2) the court must dismiss the application; and (3) the grounds for dismissal must be that the application is malicious, deliberately false, frivolous or vexatious. [8] If any of those elements are not met, then the court has no power to award costs at all. Thus the discretion to award costs will not be enlivened simply because an application is malicious, deliberately false, frivolous or vexatious. If such an application is withdrawn or is dismissed without hearing then each party must bear their own costs. [9] That may seem unjust to parties who have been wrongly put to the expense of seeking legal advice and of preparing to contest the application. On the other hand s 157 may at least deter the pursuit of unmeritorious applications all the way to hearing. But whether or not the players in court regard s 157 as just, or as striking the right balance, is hardly
4 to the point. Costs are a creature of statute and can only be awarded in the circumstances stipulated by the legislature. 2 [10] In this case the applicant was wrongly prevented from withdrawing her application and compelled by the court to continue the application to hearing. The rationale for that course, urged robustly and erroneously upon the presiding Magistrate by the second respondent, was it was unjust that s 157 would otherwise deprive the second respondent of the opportunity to seek a costs order against the applicant. Background [11] The applicant and her husband, the second respondent, separated acrimoniously on 22 June 2015. [12] Then, on 9 July 2015, during an argument about financial matters, the second respondent allegedly pushed the applicant twice, first onto a lounge and second onto the floor. She called the police who suggested she seek a protection order under the DFVP Act. She did not do so at that stage, although the second respondent soon did. [13] On 14 July 2014 the second respondent made an application for a protection order, including a temporary protection order. His application complained in the main of his estranged wife or her agent stalking him and his new female companion. His application was withdrawn on 20 July 2015. [14] Then on 5 August 2015 the applicant made an application for a protection order, including a temporary protection order. Her application complained of the pushing episode of 9 July 2015 and an array of emotional and economic problems caused and being caused to her by her estranged husband s conduct. If the pushing episode occurred it was clearly behaviour within the meaning of domestic violence under s 8(1)(a) of the DFVP Act. Some of the other behaviour complained of arguably came within the wide meaning of economic abuse under s 12 of the DFVP Act and thus within the meaning of domestic violence under s 8(1)(a)(2). It is readily apparent from the application s content that it was not drafted by a lawyer and was drafted at a time of high emotion. [15] On 20 August 2015, the first return date for the application, counsel appearing on behalf of the second respondent indicated the application was opposed and a hearing date was required. The applicant informed the court that she was no longer seeking a temporary protection order. The presiding Magistrate listed the application for hearing on 27 October 2015. She directed the applicant file and serve affidavits or statements of all witnesses to be called by her before 10 September 2015 and that the second respondent do likewise by 24 September 2015. The matter was adjourned for review mention on 15 October 2015. 3 2 Knight v FP Special Assets Ltd (1992) 178 CLR 178, 182; Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304, 314. 3 The transcript records the presiding Magistrate identified the review mention date as being 13 October 2015 but a document provided to the parties listing the directions given on the day the directions were given recorded that date as being 15 October 2015.
5 [16] On 28 August 2015 the second respondent s solicitor wrote to the applicant, in a letter endorsed without prejudice, save as to costs, stating he was prepared to forego seeking to recover his current costs if she withdrew her application prior to 10 September 2015. The letter urged the applicant to seek legal advice. [17] The applicant did not file any further materials, although her application, already filed, was in the form of a statutory declaration and thus a statement within the meaning of the directions given on 20 August 2015. On 24 September 2015 the second respondent s lawyers filed an affidavit by him in which he denied the applicant s allegations. [18] An open letter by the applicant s solicitor to the second respondent s solicitor dated 14 October 2015 indicated, inter alia, that the applicant had prepared her application without the benefit of having legal advice. It is apparent from the letter s content that the applicant s solicitor had contacted the second respondent s solicitor soon after her consultation with the applicant, advising that the applicant would withdraw the application, and that the second respondent s solicitor must have pressed for the applicant to pay some of the second respondent s costs of meeting the application. The letter said on the applicant s behalf: She is withdrawing her Application. Each party should bear their own costs. [19] Such a position as to costs was unremarkable given the matter was not at the hearing stage and the court therefore had no power to award costs. [20] The parties appeared for the listed review mention on 15 October 2015, each represented by counsel. [21] Prior to the review mention the second respondent s counsel had arranged for his written outline of argument to be communicated to the Magistrate. The applicant s counsel had not received a copy of that outline prior to the mention. 4 The outline commenced: It is understood that the Applicant will seek to withdraw her application in Court this morning. The Respondent seeks costs. [22] The outline cited s 157 of the DFVP Act and then continued: To the extent that the wording of sub-s (2) requires that the application be dismissed (as opposed to withdrawn) before the costs jurisdiction can be engaged, the withdrawal is opposed. The application should be dismissed for want of prosecution, and for the reasons expressed hereunder. [23] The outline went on to mount an argument that the proceeding had been brought for the collateral purpose of obtaining material for use in reporting the second respondent to government agencies and for use in family law proceedings. 4 It was said by the second respondent s counsel that a copy of his outline was emailed to opposing counsel s instructing solicitor (who it transpires was away) at the same time as he had emailed it to her Honour. It is unclear whether the applicant s representatives had consented to this ex parte communication with the court on a matter of substance without first seeing it.
6 [24] The outline drew support from reference to correspondence which was not filed or exhibited before or at the mention. This included reference to letters, touching upon costs between the legal representatives, of 8 October and 13 October, each of which had been endorsed without prejudice. 5 [25] At the outset of the review mention the applicant s counsel informed the court: Your Honour, the applicant intends to withdraw her application today. [26] The second respondent s counsel responded: Your Honour, that s in light of the interpretation that my learned friend is placing on section 157 with regard to costs, that application is opposed. As in, the application to withdraw. for the obvious reason that it s a blatant attempt to circumvent a costs application. [27] The learned Magistrate said in the course of the review: I mean, I suppose one issue that did occur to me and I haven t looked at it in any detail is whether I can refuse an application to withdraw. I suppose it is an application. So--- [28] The second respondent s counsel indicated he was not then in a position to argue that issue. It is not apparent why. The second respondent s representatives were on notice the applicant was withdrawing and his counsel s outline shows it was understood that was to occur at the review mention. Her Honour considered the issue needed to be argued and directed the second respondent s counsel to submit further written submissions on the point by 16 October 2015 and the applicant to file submissions in response by 23 October 2015. The matter was listed for argument on 11 November 2015. The fact the hearing date was set for 27 October was not expressly addressed but it is implicit in the argument being listed for 11 November that the forthcoming hearing date was treated as vacated. [29] When the review mention resumed for argument on 11 November 2015 there were no further oral submissions in respect of the exercise of the court s power to prevent the withdrawal of an application for a protection order. Her Honour proceeded to dismiss what she characterised as the application to withdraw, giving reasons. In doing so she expressed the view that the pushing allegation was the only allegation capable of amounting to domestic violence. [30] Further argument then ensued, in the course of which her Honour indicated she did not agree that she could strike out the application, as had been sought by the second respondent s counsel, because if she did so she could not award costs. She pointed out that if the second respondent wanted her to award costs the application had to be heard and determined. [31] The applicant s counsel indicated, consistently with the applicant s desire to withdraw the application, that she did not wish the matter to be heard. Her Honour indicated she was happy to hear and determine the matter on the material before her that day, intimating, 5 In contrast to some other correspondence that was endorsed without prejudice, save as to costs.
7 in effect, that she would either proceed to hear the matter that day or hear an application for an adjournment by the applicant for the matter to be heard on some subsequent day. [32] A short adjournment occurred to allow instructions to be taken and on resumption the applicant s counsel said: Your Honour, my instructions are that given your Honour s earlier ruling about the application to withdraw, the aggrieved wishes, if your Honour is minded to hear the matter, despite her earlier attempts to withdraw it, she wishes your Honour to hear that on the papers. [33] It is obvious that course was taken because the presiding Magistrate had by this stage made plain her intention, come what may, to press on and hear and decide the matter. [34] Her Honour proceeded to indicate she had read the material and invited submissions as to whether she should make a domestic violence order. In light of the applicant s desire not to pursue the application, the applicant s counsel submitted there was no need to make the protection order. [35] Her Honour found that the applicant s claim was frivolous, that the grounds contained in it were insufficient on which to base an application for a domestic violence order and that the application was made in order to assist the applicant in her property settlement proceedings. Her Honour ruled: I dismiss the application having heard it on the basis that it was frivolous. [36] Such a ruling meant the three elements of s 157 were met. Her Honour proceeded to order the applicant to pay the respondent s costs to be assessed, certifying that both solicitor and counsel were justified in the matter. Decision reviewable? [37] The applicant seeks a declaration that her application for a protection order is withdrawn and an order quashing the decision dismissing her application to withdraw and awarding costs against her. [38] That relief is sought pursuant to pt 5 of the Judicial Review Act 1991 (Qld) which in effect continues the court s power to grant a relief or remedy of the kind previously provided by way of a writ of mandamus, prohibition or certiorari and confers the right to make application for a declaration even if a prerogative order is not sought. [39] The second respondent relies upon s 13 of the Judicial Review Act to argue at the threshold that the application ought be dismissed. Section 13 provides: 13. When application for statutory order of review must be dismissed Despite section 10, but without limiting section 48, if (a) an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter; and
8 (b) provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person; the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so. [40] Counsel for the second respondent submitted the applicant could seek a review of the matter by an appeal to the District Court and that it was not in the interests of justice for this judicial review application to proceed. [41] It was submitted that s 164 of the DFVP Act affords an aggrieved spouse that right of appeal. Section 164 provides: 164 Who may appeal A person who is aggrieved by any of the following decisions of a court may appeal against the decision (a) a decision to make a domestic violence order; (b) a decision to vary, or refuse to vary, a domestic violence order; (c) (d) a decision to refuse to make a protection order; if the person sought a temporary protection order in a proceeding under this Act a decision to refuse to make the order. [42] The decision prompting the present application is the decision to not permit the applicant s withdrawal of her application. If that decision was wrong and the application should have been regarded as withdrawn, then the presiding Magistrate had no jurisdiction to proceed to hear the matter and decide to make the ensuing orders. [43] The reviewable matter 6 here is the decision to prevent the withdrawal of the application. That is not a decision referred to in s 164 of the DFVP Act. However the second respondent contends it was an interlocutory step which was, in effect, part of the decision to refuse to make a protection order. The second respondent is in effect contending for the curious position that the applicant has the right to appeal against the refusal of an order she was not seeking. [44] In the High Court, in Gerlach v Clifton Bricks Pty Ltd 7 the plurality affirmed the general principle that on appeal from a final order an appellate court may correct any interlocutory order that affected the final order: In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about what evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings. It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. 6 A term defined in s 3 as meaning, inter alia, a decision. 7 (2002) 209 CLR 478.
9 The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that On an appeal from the final order an appellate court can correct any interlocutory order which affected the final result (emphasis added). 8 [45] The decision not to permit the withdrawal of the application was not an interlocutory decision falling within the principle discussed in Gerlach s Case. [46] It was quite different than the example, cited in Gerlach s Case, of evidentiary rulings. Evidentiary rulings affect the final result because they affect the substance or merits of what is before the court in deciding whether to make or refuse an order. The only sense in which the decision here affected the final result is that the matter remained before the court. Of itself that fact had no bearing upon whether or not an order should be made. [47] Even if the above conclusion is incorrect, the obligation to dismiss the application pursuant to s 13 only arises if I am satisfied, having regard to the interests of justice that I should do so. I would not in any event be so satisfied, because the merits of the application have been fully argued in this forum without disadvantage to either party. 9 An applicant s right to withdraw an application for a protection order [48] The DFVP Act does not make express provision for the withdrawal of a complaint. However, pursuant to s 142 of the DFVP Act, the Domestic and Family Violence Protection Rules apply for a proceeding in a court under the DFVP Act. Those rules do make provision for the withdrawal of an application. Rule 50 provides: 50 Withdrawal of DFVP application (1) An applicant may withdraw a DFVP application before a DFVP court decides the application in 1 of the following ways (a) orally during a proceeding in a DFVP court; (b) in writing to the clerk of the DFVP court (an application to withdraw). (2) An application to withdraw must state the following (a) the name of the person withdrawing the DFVP application; (b) the role of the person in the proceeding that is to be withdrawn, including whether the person is, represents or is acting on behalf of, a party to the proceeding; (c) the proceeding in which the application is to be withdrawn, including the name of the parties and the file number; (d) the date of the next court appearance for the proceeding, if the person knows the date. 8 Ibid 482, 483 (citations omitted). 9 Cf Stubberfield v Webster [1996] 2 Qd R 211 where the merits had not been fully argued.
10 (3) If the clerk of the DFVP court receives an application to withdraw, the clerk must send a copy to the nearby police officer for service on the other parties in the proceeding. (4) The nearby police officer must personally serve a copy on the other parties in the proceeding. (5) A DFVP court may decide an application to withdraw without the parties appearing, unless a DFVP court orders otherwise. [49] Rule 50(1)(a) confers an apparently unqualified right upon an applicant for a protection order to withdraw the application orally during a proceeding in a Domestic and Family Violence Protection Court before the court decides the application. The balance of the rule is concerned with what the rule describes in short form in r 50(1)(b) as an application to withdraw. That is, where an applicant withdraws the protection application in writing to the Clerk of the Court. The use of that short form description in r 50 appears to have resulted in the parties in the court below referring to the applicant s attempt to withdraw the application for a protection order on 15 October 2015 as an application to withdraw, notwithstanding that it occurred orally during the proceeding rather than in writing to the Clerk of the Court. [50] The second respondent submitted that the reference in r 50(5) to the fact that the court may decide an application to withdraw carries with it the implication generally that a court must have the power to refuse the withdrawal of an application regardless of whether the purported withdrawal occurs in writing or orally in court. However the reference to decide in r 50(5) is only to a court deciding an application to withdraw which, in the context of r 50, only relates to a purported withdrawal in writing to the Clerk of the Court. The notion that a court may decide a purported withdrawal in writing to the Clerk of the Court but has no particular decision to make in the event of a withdrawal made orally during a proceeding is consistent with the structure of r 50 s machinery provisions regarding written applications. Those provisions herald a need for care in ensuring all parties are made aware of the written application and the potential need to require the appearance of the parties, neither of which needs are likely to be present when an application is made orally during the proceeding in court. [51] It might be that a power to prevent a withdrawal of an application for a protection order can be implied, from the court s power to control and prevent an abuse of its own process, 10 for the narrow purpose of preventing a withdrawal which is not genuinely made because the applicant is acting under duress. However that does not fall for determination here because that was not the basis for refusing the withdrawal. [52] The power to refuse a withdrawal was regarded as akin to an unfettered discretion below. It was there argued and accepted that the power fell to be exercised in the same way as the discretion to grant or refuse an application for leave to discontinue. Of that discretion Fraser JA observed in Fuller v Toms & Ors, 11 citing Graham J in Covell Matthews & Partners v French Wools Ltd: 12 10 R v Jell, ex parte Attorney-General [1991] 1 Qd R 48. 11 [2010] QCA 283, [25]. 12 [1977] 1 WLR 876, 879.
11 The discretion to grant or refuse leave to discontinue is not fettered, but the court ordinarily grants leave if that will not cause injustice to the opponent, since it is ordinarily not desirable to compel a claimant to litigate. [53] However r 50 is not couched in terms requiring the applicant to seek leave to withdraw an application for a protection order. Even if a court had a narrow implied power to prevent a withdrawal, which is not genuinely made, that would not provide a basis to imply a power so broad as to equate to an unfettered discretion whether or not to grant leave. The latter discretion only arises by reason of a legislative requirement, not present here, to seek leave. In Boal Quay v Kings Lynn Conservancy Board [1971] 1 WLR 1558; [1971] 3 All ER 597 it was relevantly observed by Salmon LJ: Whenever an application is made to a tribunal or to the courts for that matter, as a rule, there is nothing to compel you to go on with it. You are entitled to withdraw your application at any stage. It is quite true that the legislature sometimes, for policy reasons, lays down that an application made under a statute cannot be withdrawn in specified circumstances. But quite independently of authority it seems to me to follow on principle that in the absence of a statutory prohibition, once you have made an application you can always withdraw it; and once you have withdrawn the application, it ceases to exist. 13 [54] In Schipp v Herfords Pty Ltd 14 Samuels JA, with whom Reynolds JA agreed, said of the above reference by Salmon LJ that, while obiter, it correctly sets out the true position. 15 In Schipp Mahoney JA observed: I must myself confess to feeling, uninstructed by authority, that in many cases injustice may well be done if a person in the position of a plaintiff can proceed to the point of judgment and then, having decided that he may fail, or having been told that he is about to fail, withdraw his proceeding as of right. However, intuitive feelings for justice have been said to be a poor substitute for a rule antecedently known, more particularly where all do not have the same intuitions ; and the right of a person in the position of a plaintiff so to withdraw is, it has been said, based upon authorities dating back to the time of Coke. 16 [55] In dismissing what her Honour incorrectly characterised as an application to withdraw her Honour held: [A] court may dismiss an application to withdraw and should do so where to do otherwise would result in injustice to the respondent. In the circumstances of this case, I find that to allow the applicant to withdraw her application at this stage of the proceedings would be unjust to the respondent, and I dismiss the application to withdraw. [56] For the above reasons r 50 did not confer an unfettered discretion upon the presiding Magistrate to permit or prevent the applicant to withdraw her application. There was no cause for concern here that the applicant s withdrawal was anything other than voluntary. 13 Ibid 1569; 604, 605. 14 [1975] 1 NSWLR 412. 15 Ibid 422 (citations omitted). 16 Ibid 429 (citations omitted).
12 It was the court s response which wrongly turned the attempted oral withdrawal into an application. The proper construction of the applicant s counsel s oral submission on 15 October 2015 is to regard it as an oral withdrawal during a proceeding in a DFVP court within the meaning of r 50. What followed ought be regarded as a nullity because the application, having been withdrawn, should have been regarded as no longer being before the court. [57] Even if I am wrong and if the learned presiding Magistrate did have an unfettered discretion whether to permit or prevent the withdrawal by reference to whether injustice would be caused to the respondent, her Honour nonetheless erred in not permitting the withdrawal. The only basis advanced for there being any injustice to the respondent was that the respondent would, in consequence of the withdrawal being allowed, be deprived of a then non-existent right to seek costs. What was urged on and accepted by the court as a means of preventing injustice was really just a construct designed to avoid the orthodox application of s 157. [58] It is unnecessary to consider whether the position might be different in the extreme example posited in submissions, of a withdrawal being attempted during a hearing, prior to the Magistrate s decision. That was not the situation below. The listed hearing was still 12 days away when the applicant attempted to withdraw her application. [59] What followed after the refusal of the withdrawal only serves to confirm the nature of the error. On an occasion when the hearing was not listed to proceed the applicant was given no practical choice other than to acquiesce to a hearing on the papers of an application which she no longer sought the granting of. That contorted course was undertaken solely to afford the second respondent an opportunity to pursue a costs order against the applicant. The taking of such a course demonstrates that in truth the injustice which the refusal of the withdrawal served to prevent was the correct application of s 157(1) and its requirement that the second respondent would have to bear his own costs. Conclusion [60] For the above reasons the application for a declaration must succeed. [61] The appropriate and simplest course is to declare the application was withdrawn on 15 October 2015 and set aside the orders made then and subsequently. [62] As to costs, s 49(4) of the Judicial Review Act provides the rules of court apply to this proceeding. The general rule, in r 681(1) Uniform Civil Procedure Rules, is that costs are in the discretion of the court but follow the event unless the court orders otherwise. It is difficult to imagine, particularly given the course urged by the second respondent below, that costs should not follow the event. However the parties should be heard on the issue, unless they agree as to costs. Orders [63] My orders are:
13 1. It is declared the applicant s application for a protection order was withdrawn on 15 October 2015. 2. All orders of the Magistrates Court made in this matter on 15 October 2015 and subsequently are set aside. 3. Failing notice in writing by 4 pm on 29 March 2016 to the Registrar by the parties to the effect they have agreed as to costs, I will hear the parties as to costs at 10 am on 1 April 2016.