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BAK v Gallagher & Anor (No 2)

BAK v Gallagher & Anor (No 2)

Case [2018] QDC 132 17 July 2018

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DISTRICT COURT OF QUEENSLAND

CITATION:

BAK v Gallagher & Anor (No 2) [2018] QDC 132

PARTIES:

BAK

(appellant)

v

DEAN WILLIAM GALLAGHER

(first respondent)

and

LTM

(second respondent)

FILE NO/S:

D201 of 2017

DIVISION:

Appellate

PROCEEDING:

Application for costs

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

17 July 2018

DELIVERED AT:

Southport

HEARING DATE:

On the papers; appellant’s written submissions filed on 30 March 2018 and first respondent’s submissions filed on 30 April 2018.

JUDGE:

Muir DCJ

ORDER:

The first respondent pay the appellant’s costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT – COSTS – where domestic violence – where a protection order was set aside – where the successful appellant seeks costs – whether s 142 of the Domestic and Family Violence Protection Act 2012 (Qld) applies to costs on appeals under that Act – whether s 157 of the Domestic and Family Violence Protection 2012 (Qld) is relevant to the discretion to order costs on appeals under that Act – where the Uniform Civil Procedure Rules 1999 (Qld) applies such that costs follow the event unless court orders otherwise – whether court should order otherwise in matters of “public interest litigation”

LEGISLATION:

Appeal Costs Fund Act 1973 (Qld), s 21
Civil Proceedings Act 2011 (Qld)
Domestic and Family Violence Protection Act 1989 (Qld)
Domestic and Family Violence Protection Act 2012 (Qld), ss 3, 4, 6, 37, 142, 157, 164
Domestic and Family Violence Protection Bill 2011 (Qld)
Domestic and Family Violence Protection Rules 2014 (Qld)
Environmental Planning and Assessment Act 1979 (NSW)
Justice and Other Legislation Amendment Act 2013 (Qld), s 142,
Land and Environment Court Act 1979 (NSW), s 69
Magistrates Court Act 1921 (Qld)
Police Powers and Responsibilities Act 1990 (Qld), s 10.5
Uniform Civil Procedure Rules 1999 (Qld), Chapter 17A, r 681

CASES:

Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304
BAK v Gallagher & Ors [2018] QDC 32
BLJ v QLD & Anor [2018] QDC 14
Briginshaw v Briginshaw (1938) 60 CLR 336
Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55
Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34
GKE v EUT [2014] QDC 248
HZA v ZHA [2018] QDC 125
KAV v Magistrate Bentley & Anor [2016] QSC 46
Kilvington v Grigg & Ors(No.2) [2011] QDC 37
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271
Oshlack v Richmond River Council (1998) 193 CLR 72
Roe v Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57
S v T [2018] QDC 49
West & Ors v Blackgrove & Anor [2012] QCA 321
Z v Z [2016] QDC 328

COUNSEL:

C O’Meara for the appellant

SOLICITORS:

M O’Brien (sol) instructed by Queensland Police Service Legal Unit for the first respondent

No appearance for the second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BAK v Gallagher & Anor (No 2)

Details

AGLC: BAK v Gallagher & Anor (No 2) [2018] QDC 132
Case: [2018] QDC 132
Decision Date: 17 July 2018

CaseChat Overview and Summary

The appeal in BAK v Gallagher & Anor (No 2) involved the appellant, BAK, and two respondents, Gallagher and another party. The central issue was the setting aside of a protection order and the subsequent request for costs by the appellant. The Queensland Court of Appeal was tasked with determining the appropriate legal framework for awarding costs in this context.

The primary legal issues centred around the applicability of sections 142 and 157 of the Domestic and Family Violence Protection Act 2012 (Qld) to the costs on appeals under that Act. Additionally, the court considered whether the Uniform Civil Procedure Rules 1999 (Qld), which generally provide that costs follow the event unless the court orders otherwise, should be applied in a manner that deviates from this rule in cases deemed to be of public interest litigation.

The court found that section 142 of the Domestic and Family Violence Protection Act 2012 (Qld) did not provide a basis for awarding costs in appeals under that Act. However, section 157 was relevant to the court's discretion to order costs on appeals. The court held that in matters of public interest litigation, it may be appropriate for the court to order costs in a manner that deviates from the general rule provided by the Uniform Civil Procedure Rules 1999 (Qld). Consequently, the court ordered that the first respondent, Gallagher, pay the appellant’s costs of the appeal.

Orders

Orders of the court

The first respondent pay the appellant’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

BAK v Gallagher & Anor (No 2) [2018] QDC 132

Most Recent Citation

CPD v Ivamy [2018] QDC 244

Cases citing this decision · 17 of 17 shown

SGB v STG; WTS v STG (No 2)
[2024] QDC 137

…023 (Qld) s 33 Uniform Civil Procedure Rules 1999 (Qld) r 681 CASES: AVI v SLA (No 2) [2019] QDC 207 BAK v Gallagher (No 2) [2018] QDC 132 Conversation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34 HZA v ZHA [2018] QDC 125 John Urquhart t/as Hart Renovations v Partington & Anor [2…
DW v KM
[2024] QDC 27 Para 1

…In BAK v Gallagher & Anor (No 2) [2018] QDC 132, Muir DCJ, as she then was, made the following observations about appeals to the District Court of Queensland under the DVA: “[17] Section 142(2) expressly provides that the UCPR apply to an appeal under the DV Act. If parliament had intended that the costs provisio…
Xaz v Obq
[2023] QDC 98 Para 46

…ffect of that amendment is to make ch 17A (the costs provisions) of the UCPR apply to appeals under the DV Act.[10] [9] BAK v Gallagher & Anor (No 2) [2018] QDC 132, [16], [49]. [10] BAK v Gallagher & Anor (No 2) [2018] QDC 132, [18].…
Kiq v Bat & Anor (No 2)
[2023] QDC 15 Para 2

…ngs for an application under the Act, do not apply to an appeal under the Act.[3] [3] HZA v ZHA [2018] QDC 125 at [5] and [9]; BAK v Gallagher (No 2) [2018] QDC 132 at [15]-[16]; AVI v SLA (No 2) [2019] QDC 207; LAF v AP (No 2) [2022] QDC 104.…
KAL v DJL (No 2)
[2022] QDC 275 Para 7

…if there are “sufficient special circumstances to justify a departure from the ordinary rule as to costs”.[7] [7] BAK v Gallagher and Anor (No 2) [2018] QDC 132 ( BAK ) at [31] per Muir DCJ citing Oshlack at [20].…
JKL v Dba (No. 3)
[2022] QDC 163 Para 8

…ict Court under the DFVPA, proceed in accordance with the provisions of UCPR rr 766(1)(d), 771 and chapter 17A.[3] [3] BAK v Gallagher & Anor (No. 2) [2018] QDC 132 [17]-[18].…
LAF v AP (No 2)
[2022] QDC 104 Para 8

…by reason of rule 3. His Honour’s decision was followed in BAK v Gallagher (No2)[3] and by me in AVI v SLA (No 2).[4] [2][2018] QDC 125 at [4]. [3][2018] QDC 132 at [15]-[16]. [4][2019] QDC 207.…
CJG v TG
[2022] QDC 48 Para 1

…Act have not been satisfied. He relies upon AKM v CJM [1] at [79] and BAK v Gallagher & Anor (No. 2)[2] at [9] in this respect. [1][2021] QDC 199. [2][2018] QDC 132.…
AKM v CJM
[2021] QDC 199 Para 31

…of that amendment is to make Chapter 17A (the costs provisions) of the UCPR apply to appeals under the DV Act.[10] [9] BAK v Gallagher & Anor (No 2) [2018] QDC 132 at [16] and [49]. [10] BAK v Gallagher & Anor (No 2) [2018] QDC 132 at [18].…
EVE v ETT
[2021] QDC 161 Para 5

…r. In this case, ETT was wholly successful and put to the expense of responding to the appeal. [75] HZA v ZHA [2018] QDC 125; BAK v Gallagher (No. 2) [2018] QDC 132.…
Ris v Dol (No. 2)
[2021] QDC 157 Para 3

…In BAK v Gallagher & Anor (No. 2) [2018] QDC 132, [31] Muir DCJ (on the issue of costs in appellate proceedings under the DFVPA), stated: [31] The court has an absolute and unfettered discretion as to costs which must be exercised judicially without caprice, bearing in mind relevant considerations [ West & Ors v…
GRP v Abq
[2020] QDC 272 Para 1

…of appealing the Magistrate’s decision. I order the respondent pay the appellant’s costs. [31] HZA v ZHA [2018] QDC 125; BAK v Gallagher (No. 2) [2018] QDC 132.…
Atd v Tbc
[2020] QDC 236 Para 24

…e short written submissions of no more than 2 pages which should be emailed to my Associate. [90] HZA v ZHA [2018] QDC 125; BAK v Gallagher (No. 2) [2018] QDC 132.…
STO v Queensland Police Service
[2020] QDC 139

…[13] [2018] QDC 132.…
HDI v HJQ
[2020] QDC 83 Para 1

…my Associate. Otherwise the order will be that there is no order as to costs. [48]s 157 of the DFPV Act as discussed in BAK v Gallagher & Anor (no 2) [2018] QDC 132 at [8]-[18].…
AVI v SLA (No 2)
[2019] QDC 207 Para 1

…do not apply to an appeal under the Act by reason of rule 3. His Honour’s decision was followed in BAK v Gallagher (No2)[3]. [2][2018] QDC 125. [3][2018] QDC 132 at [15]-[16].…
CPD v Ivamy
[2018] QDC 244 Para 1

…will allow the parties until 4.00pm Wednesday, 12 December 2018 to either provide submissions or an agreed order. [43] BAK v Gallagher & Anor (No 2) [2018] QDC 132 at [5] – [24].…

View all 17 citing cases →

Cases cited in this decision · 18 of 18 shown

HZA v ZHA
[2018] QDC 125 Para 1

…efit of “proper legal argument” on the issue of costs.[36] [35]This view is consistent with the approach taken by the Court recently in HZA v ZHA [2018] QDC 125 at [5]-[10]. [36] GKE v EUT [2014] QDC 248 at [68].…
S v T
[2018] QDC 49 Para 1

…It follows that any reliance on these observations is wrong.[37] [37] HZA v ZHA [2018] QDC 125. Cf S v T [2018] QDC 49; Z v Z [2016] QDC 328; BLJ v QLB & Anor [2018] QDC 14. In S v T , the court determined there should be no orders as to costs on appeal based upon a finding that an application at first instance…
BLJ v QLB
[2018] QDC 14 Para 1

…s that any reliance on these observations is wrong.[37] [37] HZA v ZHA [2018] QDC 125. Cf S v T [2018] QDC 49; Z v Z [2016] QDC 328; BLJ v QLB & Anor [2018] QDC 14. In S v T , the court determined there should be no orders as to costs on appeal based upon a finding that an application at first instance had not b…
BAK v Gallagher
[2018] QDC 32 Para 1

…re the Magistrate, I set aside the Protection Order and remitted the matter back to the Southport Magistrates Court.[1] [1] BAK v Gallagher & Ors [2018] QDC 32.…
Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC
[2018] WASC 34 Para 1

…ll vary depending the circumstances of the case. See Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34 at 6.…
KBE v Queensland Police Service
[2017] QDC 326 Para 1

…s not ordinarily entitled to recover costs unless, for example, it is a disbursement/outlay such as a filing fee: see KBE v Queensland Police Service [2017] QDC 326.…
Z v Z
[2016] QDC 328 Para 1

…It follows that any reliance on these observations is wrong.[37] [37] HZA v ZHA [2018] QDC 125. Cf S v T [2018] QDC 49; Z v Z [2016] QDC 328; BLJ v QLB & Anor [2018] QDC 14. In S v T , the court determined there should be no orders as to costs on appeal based upon a finding that an application at first instance h…
Kav v Magistrate Bentley
[2016] QSC 46 Para 1

…imply because an application is malicious, deliberately false, frivolous or vexatious. As Henry J observed in KAV v Magistrate Bentley & Anor :[8] [8][2016] QSC 46 at [7].…
GKE v EUT
[2014] QDC 248 Para 1

…The effect of this section was that the costs provisions of the UCPR (Chapter 17A) did not apply to appeals under the DV Act.[10] [10] GKE v EUT [2014] QDC 248 at [68]-[69].…
Mio Art Pty Ltd v Macequest Pty Ltd (No 2)
[2013] QSC 271 Para 1

…er party’s costs. In other words, it is not necessary to seek an order that costs be assessed: see Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271 at [11] per Jackson J. Further, r 702(1) expressly provides that “[u]nless these rules or an order of the court provides otherwise, a cost assessor mus…
West v Blackgrove
[2012] QCA 321 Para 1

…The occasions justifying a departure from the ordinary rule have been described as rare and exceptional.[24] [20] West & Ors v Blackgrove & Anor [2012] QCA 321 at [51]. [21] Oshlack v Richmond River Council (1998) 193 CLR 72. [22]Ibid at [20]. [23] Kilvington v Grigg & Ors (No.2) [2011] QDC 37 at [37]. [24] Roe…
Kilvington v Grigg & Ors (No. 2)
[2011] QDC 37 Para 1

…the UCPR expressly states that costs follow the event unless the court orders otherwise. As McGill SC DCJ observed in Kilvington v Grigg & Ors (No.2) [2011] QDC 37, this distinction is relevant and must be kept in mind, as the provision under r 681 UCPR reflects the traditional approach. This means that the star…
Roe v The Director General, Department of Environment and Conservation for the State of Western Australia
[2011] WASCA 57 Para 1

…gg & Ors (No.2) [2011] QDC 37 at [37]. [24] Roe v Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 at [13].…
Oshlack v Richmond River Council
[1998] HCA 11 Para 1

…The first respondent relied on the principles espoused by the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 ( “Oshlack”) and the characterisation of the present appeal proceedings as “public interest litigation” submitting there are special circumstances warranting departure from the usual rule that cost orders favour…
Oshlack v Richmond River Council
[1994] NSWLEC 20 Para 1

…number of factors constituted special circumstances warranting a departure from the usual rule [in that case] including:[17] [16] Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236 at 243-4. [17]These factors will vary depending the circumstances of the case. See Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson…
Knight v FP Special Assets Ltd
[1992] HCA 28 Para 1

…s instructive to briefly reflect on the introduction of the DV Act and the relevant provisions dealing with costs. [5] Knight v FP Special Assets Ltd (1992) 174 CLR 178, 182; Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304, 314.…
Briginshaw v Briginshaw
[1938] HCA 36 Para 1

…f proof; and a failure to properly consider whether there was any cogent evidence that the Protection Order was either necessary or desirable.[3] [2] Briginshaw v Briginshaw (1938) 60 CLR 336. [3] BAK v Gallagher & Ors [2018] QDC 32 at [40]: I observed that there was no basis apart from speculation to support a protection order…
Briginshaw v Briginshaw
[1938] HCA 34 Para 1

…o properly consider whether there was any cogent evidence that the Protection Order was either necessary or desirable.[3] [2] Briginshaw v Briginshaw (1938) 60 CLR 336. [3] BAK v Gallagher & Ors [2018] QDC 32 at [40]: I observed that there was no basis apart from speculation to support a protection order being neces…

Legislation cited in this decision · 13

Domestic and Family Violence Protection Act 2012 (Qld)
142, 157, 164, 3, 37, 4, 6 8 mentions (from Para 1)
Appeal Costs Fund Act 1973 (Qld)
21 2 mentions (from Para 1)
Justice and Other Legislation Amendment Act 2013 (Qld)
142 2 mentions (from Para 1)
Land and Environment Court Act 1979 (NSW)
69 2 mentions (from Para 1)
Appeal Cost Fund Act 1973 (Qld)
1 mention (from Para 1)
Childrens Court Rules 1997 (QLD)
1 mention
Civil Proceedings Act 2011 (Qld)
1 mention
Domestic and Family Violence Protection Act 1989 (Qld)
1 mention (from Para 1)
Domestic and Family Violence Protection Rules 2014 (Qld)
1 mention (from Para 1)
Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 1)
Magistrates Court Act 1921 (Qld)
1 mention
Magistrates Courts Act 1921 (Qld)
1 mention (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 1)

CITATION:	BAK v Gallagher & Anor (No 2) [2018] QDC 132
PARTIES:	BAK (appellant) v DEAN WILLIAM GALLAGHER (first respondent) and LTM (second respondent)
FILE NO/S:	D201 of 2017
DIVISION:	Appellate
PROCEEDING:	Application for costs
ORIGINATING COURT:	Southport Magistrates Court
DELIVERED ON:	17 July 2018
DELIVERED AT:	Southport
HEARING DATE:	On the papers; appellant’s written submissions filed on 30 March 2018 and first respondent’s submissions filed on 30 April 2018.
JUDGE:	Muir DCJ
ORDER:	The first respondent pay the appellant’s costs of the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT – COSTS – where domestic violence – where a protection order was set aside – where the successful appellant seeks costs – whether s 142 of the Domestic and Family Violence Protection Act 2012 (Qld) applies to costs on appeals under that Act – whether s 157 of the Domestic and Family Violence Protection 2012 (Qld) is relevant to the discretion to order costs on appeals under that Act – where the Uniform Civil Procedure Rules 1999 (Qld) applies such that costs follow the event unless court orders otherwise – whether court should order otherwise in matters of “public interest litigation”
LEGISLATION:	Appeal Costs Fund Act 1973 (Qld), s 21 Civil Proceedings Act 2011 (Qld) Domestic and Family Violence Protection Act 1989 (Qld) Domestic and Family Violence Protection Act 2012 (Qld), ss 3, 4, 6, 37, 142, 157, 164 Domestic and Family Violence Protection Bill 2011 (Qld) Domestic and Family Violence Protection Rules 2014 (Qld) Environmental Planning and Assessment Act 1979 (NSW) Justice and Other Legislation Amendment Act 2013 (Qld), s 142, Land and Environment Court Act 1979 (NSW), s 69 Magistrates Court Act 1921 (Qld) Police Powers and Responsibilities Act 1990 (Qld), s 10.5 Uniform Civil Procedure Rules 1999 (Qld), Chapter 17A, r 681
CASES:	Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304 BAK v Gallagher & Ors [2018] QDC 32 BLJ v QLD & Anor [2018] QDC 14 Briginshaw v Briginshaw (1938) 60 CLR 336 Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55 Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34 GKE v EUT [2014] QDC 248 HZA v ZHA [2018] QDC 125 KAV v Magistrate Bentley & Anor [2016] QSC 46 Kilvington v Grigg & Ors(No.2) [2011] QDC 37 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271 Oshlack v Richmond River Council (1998) 193 CLR 72 Roe v Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 S v T [2018] QDC 49 West & Ors v Blackgrove & Anor [2012] QCA 321 Z v Z [2016] QDC 328
COUNSEL:	C O’Meara for the appellant
SOLICITORS:	M O’Brien (sol) instructed by Queensland Police Service Legal Unit for the first respondent No appearance for the second…