BAK v Gallagher & Anor (No 2)

Case [2018] QDC 132


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…

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

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

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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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