Be v PR (No 2) - [2024] QDC 81

DISTRICT COURT OF QUEENSLAND

CITATION:

BE v PR (No 2) [2024] QDC 81

PARTIES:

BE

(appellant)

v
PR (No 2)

(respondent)

FILE NO/S:

BD 982/24

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

5 June 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions of the appellant dated 19 May 2024; Written submissions of the respondent dated 23 May 2024; Written submissions of the Queensland Police Service dated 27 May 2024

JUDGES:

Smith DCJA

ORDER:

1. I order the respondent pay 50% of the appellant’s costs of and incidental to the appeal on the standard basis as agreed or assessed.

CATCHWORDS:

COSTS – Appeal pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) – where the appellant was largely successful in appeal – where fresh evidence was admitted which was relevant to the appeal – where the appellant did not file an affidavit in the Magistrates Court contrary to directions given – where the respondent through the police prosecutor did not oppose the Magistrate making the ouster order – where the respondent opposed the appeal in this court

Domestic and Family Violence Protection Act 2012 (Qld) ss 57, 63, 147, 157, 167
Uniform Civil Procedure Rules 1999 (Qld) r 766

BE v PR [2024] QDC 70, cited

Knight v FP Special Assets Ltd (1992) 174 CLR 178, considered
LAP v HBY [2021] QCA 123, applied
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, applied

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, cited

COUNSEL:

Mr J Mould for the appellant
Self-represented respondent
Ms K Morrison for the Queensland Police Service

SOLICITORS:

Direct brief
Self-represented respondent
QPS Legal Services for the Queensland Police Service

Introduction

This is the costs decision consequent on the decision given in BE v PR[1].
[1][2024] QDC 70.
The appellant submits that he was entirely successful in his appeal. He submits that costs should follow the event. Section 157 of the Domestic Violence and Family Protection Act (“DVFPA”) does not apply to appeals and the Uniform Civil Procedure Rules (“UCPR”) do. He submits the respondent resisted the appeal to the end and filed submissions contrary to the appeal. It is submitted the respondent acted under an abuse of process. It is submitted her ouster application was malicious, vexatious and unreasonable particularly given that the Federal Circuit and Family Court of Australia had already refused to deal with the application. It is submitted that the QPS should pay costs as they acquiesced to a five-year ouster order which was clearly not desirable or necessary. Indemnity costs should apply because of the conduct of the respondent and the QPS. Total costs of $14,435.08 are sought.
The respondent submits that the appellant was not entirely successful. The matter was remitted to the Brisbane Magistrates Court for a retrial. It is submitted that the appellant denied access to the…

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 Be v PR (No 2)

Details

AGLC: Be v PR (No 2) [2024] QDC 81
Case: [2024] QDC 81
Decision Date: 5 June 2024

CaseChat Overview and Summary

The appeal heard in Be v PR (No 2) involved a dispute between the appellant, Be, and the respondent, PR, concerning the costs incurred during an appeal related to domestic and family violence. The case originated in the Magistrates Court of Queensland, where Be sought to appeal a decision made in the lower court. The Queensland Civil and Administrative Tribunal (QCAT) was responsible for hearing the appeal under the Domestic and Family Violence Protection Act 2012 (Qld). The primary focus of the appeal was the assessment of costs associated with the litigation process, particularly in light of the appellant's partial success, the introduction of fresh evidence, and the procedural compliance issues identified.

The legal issues that the QCAT had to resolve included whether the costs should be apportioned in favour of the appellant, given that fresh evidence was admitted which was pertinent to the appeal. Additionally, the QCAT needed to determine whether the appellant's failure to file an affidavit in the Magistrates Court, contrary to the directions given, should impact the costs order. Another key issue was whether the respondent's lack of opposition to the Magistrate's ouster order in the Magistrates Court should influence the QCAT's decision. The court also had to consider whether the respondent's opposition to the appeal in QCAT warranted any specific consideration in the costs assessment.

The QCAT's reasoning was that despite the appellant's partial success and the introduction of fresh evidence, the procedural misstep of not filing the required affidavit should not entirely preclude her from recovering costs. The QCAT noted that the respondent did not oppose the Magistrate's ouster order in the Magistrates Court, which suggested a degree of acquiescence. Furthermore, the QCAT observed that the respondent's opposition to the appeal in QCAT did not sufficiently justify a complete denial of costs to the appellant. Based on these considerations, the QCAT ordered that the respondent pay 50% of the appellant's costs of and incidental to the appeal on the standard basis as agreed or assessed.

In conclusion, the QCAT's decision balanced the procedural non-compliance with the appellant's overall success and the respondent's conduct in the lower court and during the appeal process. The final order required the respondent to pay half of the appellant's costs, reflecting a nuanced approach to cost allocation in domestic and family violence cases.

Orders

Orders of the court

1. I order the respondent pay 50% of the appellant’s costs of and incidental to the appeal on the standard basis as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	BE v PR (No 2) [2024] QDC 81
PARTIES:	BE (appellant) v PR (No 2) (respondent)
FILE NO/S:	BD 982/24
DIVISION:	Appellate
PROCEEDING:	Appeal pursuant to s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	5 June 2024
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions of the appellant dated 19 May 2024; Written submissions of the respondent dated 23 May 2024; Written submissions of the Queensland Police Service dated 27 May 2024
JUDGES:	Smith DCJA
ORDER:	1. I order the respondent pay 50% of the appellant’s costs of and incidental to the appeal on the standard basis as agreed or assessed.
CATCHWORDS:	COSTS – Appeal pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) – where the appellant was largely successful in appeal – where fresh evidence was admitted which was relevant to the appeal – where the appellant did not file an affidavit in the Magistrates Court contrary to directions given – where the respondent through the police prosecutor did not oppose the Magistrate making the ouster order – where the respondent opposed the appeal in this court Domestic and Family Violence Protection Act 2012 (Qld) ss 57, 63, 147, 157, 167 Uniform Civil Procedure Rules 1999 (Qld) r 766 BE v PR [2024] QDC 70, cited Knight v FP Special Assets Ltd (1992) 174 CLR 178, considered LAP v HBY [2021] QCA 123, applied Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164, applied Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, cited
COUNSEL:	Mr J Mould for the appellant Self-represented respondent Ms K Morrison for the Queensland Police Service
SOLICITORS:	Direct brief Self-represented respondent QPS Legal Services for the Queensland Police Service