HZA v ZHA

Case [2018] QDC 125

DISTRICT COURT OF QUEENSLAND

CITATION:

HZA v ZHA [2018] QDC 125

PARTIES:

HZA

(appellant)

v

ZHA

(respondent)

FILE NO:

1199/17

DIVISION:

Civil

PROCEEDING:

Appeal – Costs Application

ORIGINATING COURT:

Holland Park Magistrates Court

DELIVERED ON:

3 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2018

JUDGE:

Devereaux SC DCJ

ORDERS:

1.   The respondent pay the appellant’s costs of the appeal fixed at $10,000.00.

2.   The respondent be granted an indemnity certificate in respect of the appeal under s 15(2) of the Appeal Costs Fund Act 1973.

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 157 of the Domestic and Family Violence Protection Act 2012 is relevant to the discretion to order costs – whether an indemnity certificate should be granted to the respondent.

Appeal Costs Fund Act 1973 (Qld), s 15(2)

Domestic and Family Violence Protection Act 2012 (Qld), s 142, s 157, s 157(2), s 169

Domestic and Family Violence Protection Rules 2014 (Qld), r 3, r 51, r 52

Justice and Other Legislation Amendment Act 2013 (Qld), s 67

Uniform Civil Procedure Rules 1999 (Qld), r 681

GKE v EUT [2014] QDC 248, considered.

COUNSEL:

K Hillard for the appellant

S Hartwell for the respondent

SOLICITORS:

Li Lawyers for the appellant

Tang Lawyers for the respondent

  1. On 5 June 2018, I allowed H’s appeal, set aside the order made in the Magistrates Court under the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) and remitted the matter for further hearing. He seeks costs of the appeal. I have received written submissions from both parties. For the reasons that follow I am satisfied I should order the respondent to pay the appellant’s costs of the appeal. The respondent seeks an order under the Appeal Costs Fund Act 1973 (Qld). I am persuaded that order should be made.

  1. The powers of the appeal court do not expressly include the powers to award costs:

169       Powers of appellate court

(1)In deciding an appeal, the appellate court may—

(a)confirm the decision appealed against; or

(b)vary the decision appealed against; or

(c)set aside the decision and substitute another decision; or

(d)set aside the decision appealed against and remit the matter to the court that made the decision.

(2)The decision of the appellate court upon an appeal shall be final and conclusive.

  1. The only provision directly governing costs in the Act is s 157. It falls within Part 5 – Court Proceedings, Division 3 – Other powers of court:

157       Costs

(1)Each party to a proceeding for an application under this Act must bear the party’s own costs for the proceeding.

(2)However, the court may award costs against a party who makes an application that the court hears and decides to dismiss on the grounds that the application is malicious, deliberately false, frivolous or vexatious.

(3)In this section-

party includes an aggrieved.

  1. The

Continue reading HZA v ZHA

Sign in free to access the full text

Details
AGLC
HZA v ZHA [2018] QDC 125
Case
[2018] QDC 125
Decision Date

CaseChat Overview and Summary

In the case between HZA and ZHA, the primary dispute arose from the setting aside of a protection order. The appeal was heard in the relevant appellate court, where the successful appellant sought costs incurred during the appeal process. The court was tasked with determining whether section 157 of the Domestic and Family Violence Protection Act 2012 influenced the court's discretion to order costs and whether an indemnity certificate should be granted to the respondent under section 15(2) of the Appeal Costs Fund Act 1973.

The court had to examine the applicability of section 157, which pertains to costs in domestic violence cases, to the circumstances of this appeal. Additionally, the court needed to decide whether the respondent should receive an indemnity certificate, which would protect the respondent from having to pay the appellant's costs if the appeal was unsuccessful. This required a nuanced interpretation of the statutory provisions and an understanding of the principles governing indemnity certificates in appeal cases.

In its reasoning, the court determined that section 157 was indeed relevant to the exercise of discretion in ordering costs, given the domestic violence context of the case. However, the court found that the appellant's success in the appeal warranted the imposition of costs. Furthermore, the court concluded that an indemnity certificate should be granted to the respondent to shield them from the financial burden of the appellant's costs should the appeal have been unsuccessful.

The court ordered that the respondent pay the appellant's costs of the appeal, fixed at $10,000.00, and granted the respondent an indemnity certificate in respect of the appeal under section 15(2) of the Appeal Costs Fund Act 1973.

Orders

Orders of the court

1. The respondent pay the appellant’s costs of the appeal fixed at $10,000.00.

2. The respondent be granted an indemnity certificate in respect of the appeal under s 15(2) of the Appeal Costs Fund Act 1973.

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.