DISTRICT COURT OF QUEENSLAND
CITATION:
AVI v SLA (No. 2) [2019] QDC 207
PARTIES:
AVI
(appellant)v
SLA
(respondent)FILE NO/S:
1951/19
DIVISION:
Civil
PROCEEDING:
Appeal pursuant to s 169 of the Domestic and Family Violence Protection Act 2012 (Qld)
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
18 October 2019
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers. Appellant’s submissions dated 10 October 2019. Respondent’s submissions dated 15 October 2019.
JUDGE:
Smith DCJA
ORDER:
1. I order the appellant pay the respondent’s costs fixed in the sum of $5,000.00.
2. I dismiss the appellant’s application for an indemnity certificate.
CATCHWORDS:
FAMILY LAW – DOMESTIC VIOLENCE – COSTS- where appeal unsuccessful- who should pay the costs (if any)- whether appeal costs fund certificate should be granted
Appeal Costs Fund Act 1973 (Q) s15
Domestic and Family Violence Protection Act2012 (Qld) ss 142, 157
Domestic and Family Violence Protection Rules 2014 (Qld) r 3
Uniform Civil Procedure Rules 1999 (Q) rr 681, 766, 785
AVI v SLA [2019] QDC 192 cited
BAK v Gallagher (No2) [2018] QDC 132 cited
HZA v ZHA [2018] QDC 125 applied
Lachlan v Hartley [1980] Qd R 149 cited
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 cited
Nerinda Pty Ltd v Redcliffe City Council [2018] QCA 196 cited
Northern Territory v Sangare (2019) 93 ALJR 959; [2019] HCA 25
Urquhart v Partington [2016] QCA 199 appliedCOUNSEL:
Mr Lake for the appellant
Solicitors for the respondent
SOLICITORS:
Murdoch Lawyers for the appellant
Bouchier Khan Lawyers for the respondentIntroduction
This is the costs decision consequent on the decision given in AVI v SLA.[1] On 2 October 2019 I ordered that the appeal be dismissed and the decision made in the Magistrates Court be confirmed.
[1][2019] QDC 192.
Appellant’s submissions
The appellant submits that the Uniform Civil Procedure Rules (“UCPR”) apply to an appeal under the Domestic and Family Violence Protection Act2012 (“the Act”) by reason of s 142 of the Act. It is submitted the court “may make the order as to the whole or part of the costs of an appeal it considers appropriate”.
The appellant submits that in this matter each party should bear its own costs because of the public interest character of the matter and the respondent’s conduct of the appeal. It is submitted the Act is protective in nature and the sui generis character and public interest nature of the Act are relevant considerations. It is submitted that the respondent’s conduct in the appeal is relevant. For example, the respondent submitted to the court that the respondent was not cross-examined on the Zimbabwe incident which was not correct. Further the respondent ought to have conceded that the appellant’s reference to “beyond reasonable doubt” was an error of law. The respondent also re-agitated the “dismissal” claim in the appeal.
In the circumstances, it is submitted each party should bear its own costs. It is relevant that the appeal was not…
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- AGLC
- Avi v SLA (No. 2) [2019] QDC 207
- Case
- [2019] QDC 207
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the determination of the appropriate party to bear the costs of the appeal, given the unsuccessful nature of the appeal. The court was also tasked with deciding whether an indemnity certificate should be issued to the respondent, SLA, to cover the costs incurred during the appeal. These decisions were grounded in the principles of costs in family law matters, specifically those pertaining to domestic violence, and the court's discretion in allocating costs.
In its judgment, the court found that the appeal was without merit and did not meet the threshold for a successful appeal. Consequently, the court ordered the appellant, AVI, to pay the respondent's costs, which were fixed at $5,000. The court further dismissed the appellant's application for an indemnity certificate, concluding that the circumstances did not warrant such a measure. The court's reasoning was based on the unsuccessful nature of the appeal and the principles of family law which aim to protect the respondent in domestic violence cases.
The court's final orders were that the appellant, AVI, would pay the respondent's costs amounting to $5,000, and the application for an indemnity certificate was dismissed. This outcome underscores the court's approach to cost allocation in family law matters, particularly where appeals are unsuccessful, and the need to protect the respondent in domestic violence cases.
Orders
Orders of the court
1. I order the appellant pay the respondent’s costs fixed in the sum of $5,000.00.
2. I dismiss the appellant’s application for an indemnity certificate.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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