ACJ v Ad (No. 2)

[2023] QDC 238

DISTRICT COURT OF QUEENSLAND

CITATION:

ACJ v AD (No. 2) [2023] QDC 238

PARTIES:

ACJ

(appellant)

v

AD

(respondent)

FILENO:

6/23

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Maroochydore

DELIVEREDON:

15 December 2023

DELIVEREDAT:

Maroochydore

HEARINGDATE:

Decided on the papers without oral hearing

HEARDAT:

Maroochydore

JUDGE:

Cash DCJ

ORDER:

1.          The respondent is to pay the appellant’s costs of the appeal fixed in the amount of $6,600; and

2.          The respondent is granted an indemnity certificate in respect of the appeal.

CATCHWORDS

PROCEDURE – COSTS – GENERAL RULE: COSTS

FOLLOW EVENT – where appellant was the respondent to an application for a protection order – where the allegations were contested – where the respondent and appellant filed affidavit material – where the matter was listed for hearing but unable to proceed – where the parties agreed to the application being decided ‘on the papers’ without oral evidence – where the Magistrate’s findings were not supported by evidence – whether costs should be awarded in favour of the appellant – where appellant seeks an order that the respondent pay his costs fixed in the amount of $6,600 – where respondent seeks no order as to costs or if costs are awarded that an indemnity certificate issue – whether a costs order should be made – whether an indemnity certificate should issue.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), s 8, 11, 12, 37, 159, 164, 165, 166, 168, 169

CASES:

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, [175]
HBY v WBI & Anor [2020] QDC 81, [16]-[18]
Mechanical and General Inventions Co Ltd v Austin [1935] AC 346, 349

APPEARANCES:

B Taylor instructed by Karsas Lawyers for the appellant

B McKenzie instructed by KLM Solicitors for the respondent

1. The appellant succeeded in an appeal against the making of a protection order.¹ The appeal succeeded largely because of errors in factual findings made by the Magistrate, precipitated by a decision to determine the application ‘on the papers’ without hearing testimony from witnesses. The remaining issue is what order should be made as to the costs of the appeal.

1. The appellant seeks an order that the respondent pay his costs fixed in the amount of

   $6,600. This represents 75% of his legal fees. The respondent submits there should be no order as to costs, with an alternative position that if a costs order is made there should be a further order indemnifying the respondent pursuant to the Appeals Costs Fund Act 1973 (Qld).

1. The starting point is that an award of costs in an appeal of this kind is governed by the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’).² The ‘ordinary rule’ is that costs follow the event.³ Here the appellant was wholly successful in the appeal. There would have to be some reason or justification before the appellant would be denied a favourable order as to costs. It is correct that I found the…