HIK v HCA (No. 2)

Case [2024] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:

HIK v HCA (No. 2) [2024] QDC 163

PARTIES:

HIK

(Appellant)

v

HCA

(Respondent)

FILE NO/S:

D38 of 2024

DIVISION:

Appellate

PROCEEDING:

Appeal under s 164 of the Domestic and Family Violence Protection Act 2012

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

24 September 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Kefford DCJ

ORDER:

The Respondent pay the Appellant’s costs of the appeal fixed at $7,723.56.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the appellant was successful on appeal – where the parties provided further material and submissions on the issue of costs – where the appellant submits that the respondent should pay costs in a fixed amount – where the respondent says she should pay no costs and seeks an order that the appellant pay her costs to be assessed – whether there are special or exceptional circumstances which warrant depriving a successful party of its costs

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) ss 142, 169

Uniform Civil Procedure Rules 1999 (Qld) rr 680, 681, 687, 782, 785, 771

CASES:

Amos v Monsour Legal Costs Pty Ltd [2007] QCA 235; [2008] 1 Qd R 304, applied

Knight & Anor v FP Special Assets Limited & Ors [1992] HCA 28; (1992) 174 CLR 178, applied

Queensland Racing Integrity Commission v Endresz; Racing Queensland Board v Endresz [No 2] [2024] QCA 123, applied

COUNSEL:

K Hillard and L Ferguson for the Appellant

SOLICITORS:

Lumme Rynderman Legal for the Appellant
Respondent self-represented

TABLE OF CONTENTS

Overview

What is the relevant legal framework governing a decision to order costs?

Should I exercise my discretion to make an order other than that the costs follow the event?

What are the orders?

Overview

  1. On 22 February 2024, following a two-day contested hearing at which both the Appellant, who I will refer to as HIK, and the Respondent, who I will refer to as HCA, gave oral evidence, the learned Magistrate at Maroochydore made a protection order against the HIK under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Protection Order”). The Protection Order named HCA as the aggrieved. On 9 September 2024, I set aside the learned Magistrate’s decision to grant the Protection Order and dismissed the application for the protection order made by HCA. I did so on the basis that the learned Magistrate erred in that:

    (a)the learned Magistrate failed to provide adequate reasons with respect to the findings that HIK had committed acts of domestic violence;

    (b)having regard to the incontrovertible facts, the findings of domestic violence were unreasonable and reached in error;

    (c)the learned Magistrate failed to provide adequate reasons with respect to the finding that a protection order was necessary or desirable to protect HCA from domestic violence;

    (d)the learned Magistrate erred in law in considering who was the person in the relationship most in need of protection under…

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Details
AGLC
HIK v HCA (No. 2) [2024] QDC 163
Case
[2024] QDC 163
Decision Date

CaseChat Overview and Summary

This case involves an appeal by HIK against a decision of HCA, with a particular focus on the costs associated with the appeal. The primary issue before the court was whether the appellant, HIK, should be awarded costs for the appeal, and if so, in what amount. The court was required to consider the statutory framework governing the award of costs, particularly in the context of domestic and family violence proceedings. The relevant legislation and rules, including the Domestic and Family Violence Protection Act 2012 and the Uniform Civil Procedure Rules 1999, were examined to determine the court's discretion in awarding costs. The court also considered the submissions and affidavits provided by both parties regarding the conduct of the proceedings and the factors that might warrant a deviation from the usual rule that costs follow the event.

The court began by noting that costs are a statutory creation and can only be awarded under the specific circumstances outlined in the relevant legislation. The discretion to award costs is governed by the Uniform Civil Procedure Rules 1999, which state that costs generally follow the event of the proceeding, unless the court orders otherwise. The court then evaluated the submissions and affidavits from both parties to determine if there were any special or exceptional circumstances that warranted a departure from the usual rule. HCA argued that HIK's conduct in the proceedings, including procedural non-compliance, unnecessary delays, and making unsupported allegations, justified an order that HIK should pay HCA's costs. HIK, on the other hand, argued that he was entitled to have his costs paid by HCA, as the costs of the appeal should follow the event of the proceeding.

After considering the arguments and the relevant legal principles, the court determined that HIK was entitled to have his costs paid by HCA. The court found that there were no special or exceptional circumstances that warranted depriving HIK of his costs. The court fixed the costs at $7,723.56, taking into account the factors outlined in the Uniform Civil Procedure Rules 1999 and the conduct of the parties during the proceedings.

ORDERS:
The Respondent pay the Appellant’s costs of the appeal fixed at $7,723.56.

Orders

Orders of the court

The Respondent pay the Appellant’s costs of the appeal fixed at $7,723.56.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have considered the affidavit material provided by each party with respect to this issue, and their written submissions. For the reasons set out below, HIK is entitled to have his costs paid by HCA and it is appropriate that they be fixed at $7,723.56. These reasons should be read together with my reasons for setting aside the decision of the learned Magistrate and dismissing the application for a protection order.What is the relevant legal framework governing a decision to order costs? Costs are a creature of statute. They can only be awarded in the circumstances stipulated by the legislature: Knight & Anor v FP Special Assets Limited & Ors [1992] HCA 28; (1992) 174 CLR 178, 182-3; Amos v Monsour Legal Costs Pty Ltd [2007] QCA 235; [2008] 1 Qd R 304, 314 [34]. Section 169(1) of the Domestic and Family Violence Protection Act 2012 sets out the powers of this Court as the appeal court deciding the appeal. It does not expressly include the power to award costs. That said, in my view there is a power to award costs: s 142(2) of the Domestic and Family Violence Protection Act 2012 and rr 782, 785, 771 and chapter 17A of the Uniform Civil Procedure Rules 1999 (Qld). The power to award costs is governed by chapter 17A of the Uniform Civil Procedure Rules 1999. Within that chapter:(a)r 680 provides that a party to a proceeding cannot recover any costs of the proceeding from another party other than under the Uniform Civil Procedure Rules 1999 or an order of the court; (b)r 681 relevantly provides that costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise; and(c)r 687 empowers the court to fix an amount for costs. As such, in the present case, the starting point is that the costs of the appeal follow the event unless ordered otherwise. The issue for my determination is whether I should order otherwise.Should I exercise my discretion to make an order other than that the costs follow the event? The discretion to order costs must be exercised judicially and consistently with the purpose of the power. Costs will generally follow the event unless there are special or exceptional circumstances that warrant depriving a successful party of its costs: Queensland Racing Integrity Commission v Endresz; Racing Queensland Board v Endresz [No 2] [2024] QCA 123, [4], citing Orr v Director of Proceedings on Behalf of the Health Ombudsman [No 2] [2024] QCA 106 at [2]; Courtney v Chalfen [2021] QCA 25; Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39; and Villan v The Body Corporate for The Winston (Cairns) Community Titles Scheme 37263 [No 2] [2024] QCA 54. On 23 September 2024, HCA provided an affidavit and submissions on which she relies to resist HIK’s application for costs. In the submissions, HCA contends that this is an appropriate case for no award of costs to be made in favour of HIK and for an order that HIK pay her costs. The circumstances advanced in support of those contentions are that:(a)HIK failed to comply with procedural directions, therefore increasing the costs incurred by HCA;(b)HIK has unnecessarily delayed proceedings in this court and the Federal Circuit Court;(c)HIK has made applications and appeals in both courts with unsupported allegations of HCA’s abilities to parent and the need to protect the children;(d)HIK has abandoned two previous appeals without adequate notice;(e)HIK has brought proceedings in the Federal Circuit Court which is not justified by the amount of the claim;(f)HIK interferes with family reports and then attempts to rely on inadmissible evidence;(g)HIK has engaged in unnecessarily lengthy and time-consuming litigation in this court to create delays in the Federal Circuit Court;(h)HCA cannot afford HIK’s court costs; and(i)HIK sought to delay this appeal being heard.

Ratio Decidendi

Legal Principle Established

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