Costs – Frivolous or Vexatious:  s 69 Restraining Orders Act 1997 (WA)

Section 69 of the Restraining Orders Act 1997 (WA) prevents a costs order being made against an Applicant, unless the application is “Frivolous or vexatious”.

 

In Lovelady v Griffiths [2018] WADC 180, Staude DCJ [pars 40-45] discussed some of the leading cases on the issue of “frivolous and vexatious” cases as follows:

 

  • Whether a VRO application had ‘no reasonable prospect of success’ is not the test for whether an application for costs should be awarded in a VRO/FVRO/MRO. The correct test is whether the application was frivolous or vexatious.
  • The terms ‘frivolous’ or ‘vexatious’ should be given their ordinary meaning
  • Something more than a lack of success had to be shown before proceedings could be said to be frivolous or vexatious
  • A claim could be described as frivolous or vexatious when it was groundless and had been an abuse of process in that the court’s time and resources had been employed in exposing a groundless basis.