Beware of what you tell to the Judge
The Court has the power to award costs for false statement against a party who deliberately misleads the Court
A vengeful spouse in Family Law Matters may seek revenge against a former partner by making a false statement and misleading allegations against his/her former partner, allegations that have no substance or truth.
Be careful what you say.
Section 157 of the Domestic and Violence Protection Act (DFVPA) confers discretion to award costs for a false statement. The section provides:
- (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 for a false statement 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
This provision fully expresses the power of a court to award costs for a false statement upon the dismissal of an application.
The principles for administering the Act, for example in domestic violence proceedings, seek to balance the need for the absence of discouragement to persons “who fear or experience domestic violence” in approaching the Court but also not leaving the door open to manifestly groundless or mischievous proceedings.
An award of costs Is discretionary and does not follow automatically upon a finding that the application was malicious and vexatious. For example, in a recent decision in giving reasons for the decision to award costs, the Magistrate found that the appellant had no grounds for bringing the application and that she had misled the court in her evidence. These were significant findings. The respondent had been required to defend the application in circumstances where the Magistrate found it should not have been commenced. While this was not specifically identified by the Magistrate, it was a powerful factor in favor of awarding costs to the respondent.
However, a cautious approach should be taken to any determination that the power provided in s 157(2) should be applied.
A party seeking the exercise of such power should expect to have to justify the conclusion as a clear one and from an objective point of view, rather than as a subjective and potentially contentious point of view
The making of an order for costs about a party’s motivation for making misleading or false allegations must be sufficient to justify an award of costs to a party so that such party might be indemnified for the expense of defending a malicious and vexatious proceeding.
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