AVI v SLA (No 2)

[2019] QDC 207

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 applied

COUNSEL:

Mr Lake for the appellant
Solicitors for the respondent

SOLICITORS:

Murdoch Lawyers for the appellant
Bouchier Khan Lawyers for the respondent

Introduction

1. 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

1. 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”.

1. 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.

1. In the circumstances, it is submitted each party should bear its own costs.  It is relevant that the appeal was not…