Can I Recover Legal Costs in an Intervention Order Matter?

If you have successfully defended an Intervention Order application, one of the first questions you may ask is whether you can recover the legal costs you have spent on your lawyer.

Unlike many other types of court proceedings, legal costs are not automatically awarded in Intervention Order matters. Even if the application is withdrawn or dismissed, each party will usually be responsible for paying their own legal costs unless there are exceptional circumstances.

That does not mean costs are never awarded. Victorian courts have the power to order one party to pay another party’s legal costs in certain situations, particularly where the application was frivolous, vexatious, an abuse of process, or where there are other special circumstances that justify a costs order.

At Wilkinson Lawyers, we regularly advise clients throughout Ballarat, Melbourne and regional Victoria about their prospects of recovering legal costs in Intervention Order proceedings and whether it is worthwhile seeking a costs order.

Is the Successful Party Automatically Awarded Costs?

No.

Unlike many civil court proceedings, there is no general rule that the successful party receives their legal costs.

This means that even if:

• the application is withdrawn;

• the Magistrate dismisses the application; or

• you successfully defend the allegations at a contested hearing,

you will usually still be responsible for paying your own legal costs.

This often comes as a surprise to respondents who have spent considerable time and money defending allegations that were ultimately unsuccessful.

When Can the Court Award Costs?

The Magistrates’ Court does have the power to award legal costs in Intervention Order proceedings, but only in limited circumstances.

A costs order may be appropriate where:

• the application was frivolous or vexatious;

• the application was an abuse of the court process;

• a party acted unreasonably during the proceedings;

• the application had no reasonable prospects of success; or

• there are other exceptional circumstances that justify awarding costs.

The Court has a broad discretion, and every case depends on its own facts.

What Does “Frivolous or Vexatious” Mean?

Generally speaking, an application may be considered frivolous or vexatious where it should never have been brought in the first place.

Examples might include where:

• allegations were knowingly false;

• proceedings were commenced to harass or punish another person;

• the application was used as leverage in unrelated disputes, such as family law or property matters;

• there was no evidence capable of supporting the application; or

• the proceedings were clearly an abuse of the court’s processes.

Merely losing an Intervention Order application does not automatically make it frivolous or vexatious.

Can I Recover Costs if the Applicant Withdraws the Application?

Sometimes.

If an applicant withdraws their application shortly before a contested hearing after you have incurred significant legal costs, you may ask the Court to consider making a costs order.

Whether costs are awarded will depend on why the application was withdrawn and whether the Court considers the circumstances justify departing from the usual rule that each party pays their own costs.

Each case will turn on its own facts.

What if Victoria Police Brought the Application?

Many Family Violence Intervention Order applications are brought by Victoria Police on behalf of the affected family member.

Although costs orders against Victoria Police are possible, they are relatively uncommon and will generally require exceptional circumstances.

The fact that police were unsuccessful does not, by itself, entitle a respondent to recover their legal costs.

How Does the Court Decide?

When considering whether to award costs, the Magistrate may take into account matters such as:

• the strength of the evidence;

• the conduct of each party during the proceedings;

• whether either party acted unreasonably;

• whether the application should have been brought; and

• the overall interests of justice.

The Court retains a broad discretion, meaning no two cases are exactly alike.

Is It Worth Asking for Costs?

In some cases, yes.

Where there is evidence that an application was brought for an improper purpose or had no reasonable basis, seeking a costs order may be appropriate.

However, because costs are awarded only in limited circumstances, it is important to receive realistic legal advice about the prospects of success before making the application.

Why Early Legal Advice Matters

The possibility of recovering legal costs often depends on how the case has been conducted from the beginning.

Preserving evidence, identifying weaknesses in the application and documenting unreasonable conduct can all become important if a costs application is later made.

An experienced Intervention Order lawyer can advise whether a costs application is available, whether it is likely to succeed, and the most effective way to present the application to the Court.

Speak to an Intervention Order Lawyer

If you have successfully defended an Intervention Order application or believe proceedings have been brought unfairly against you, Wilkinson Lawyers can advise whether you may be entitled to seek a costs order.

We regularly represent applicants and respondents in Family Violence Intervention Orders and Personal Safety Intervention Orders throughout Ballarat, Melbourne and regional Victoria. We can assess your prospects of recovering legal costs and represent you throughout the proceedings.

If you would like advice about recovering legal costs in an Intervention Order matter, contact Wilkinson Lawyers today to arrange a confidential consultation.

Contact Jess Wilkinson on 0468 364 121 or jess@wilkinsonlawyers.com.au to discuss your matter and obtain advice about the best way forward.