JKL v Dba (No. 3)

[2022] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:

JKL v DBA (No. 3) [2022] QDC 163

PARTIES:

JKL

(appellant)

v

DBA

(respondent)

FILE NO:

17 of 2021

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Gympie Magistrates Court

DELIVERED ON:

29 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Dearden DCJ

ORDER:

The appellant pay the respondent’s costs fixed at $3,142.59

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – appeal against application to vary domestic violence order – where appeal was unsuccessful – where written submissions made as to costs

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – OTHER MATTERS – appeal against application to vary domestic violence order – where appeal was unsuccessful – where written submissions made as to costs

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) s 142

Uniform Civil Procedure Rules 1999 (Qld) rr 785, 766, 771, 681

CASES:

AVI v SLA (No. 2) [2019] QDC 207

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

HZA v SHA [2019] QDC 125

John Urquhartt/as Hart Renovations v Partington& Anor [2016] QCA 199

Kilvington v Grigg & Ors (No. 2) [2011] QDC 37

Knight v FP Special Assets Ltd (1992) 174 CLR 178

LAF v AP (No. 2) [2022] QDC 104

MNT v MEE (No. 2) [2020] QDC 100

Oshlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:

JKL (self-represented)

P Courtney (Sol)

SOLICITORS:

Appellant in person

KLM Solicitors for the respondent

Introduction

1. On 22 June 2022, I delivered judgment in an appeal filed by the appellant on 9 November 2021 in respect of an application the appellant filed on 18 December 2020, seeking to vary a final protection order made by the Gympie Magistrates Court on 20 November 2019.  I ordered that the applicant’s appeal be dismissed and made a further order that written submissions on the issue of costs be provided by the appellant and the respondent’s legal representatives. The appellant and the respondent each provided written submissions.

2. The chronology in respect of this matter is helpfully summarised by the respondent as follows:-

   “1.On 20 November 2019 a final protection order was made by the Gympie Magistrates Court which named the appellant as the respondent, the respondent as the aggrieved, and the parties’ five children as named persons (“the Protection Order”).

   2.On 18 December 2020, the appellant filed an application to vary the protection order (“the Application”) in the Gympie Magistrates Court.

   3.The matter was heard before [the learned acting magistrate] in the Gympie Magistrates Court on 29 September 2021.

   4.On 14 October 2021, the presiding magistrate handed down her decision.  Her Honour dismissed the application and ordered that the appellant pay the respondent’s costs in the amount of $500.

   5.On 9 November 2021, the appellant filed a notice of appeal with respect to the decision made on 14 October 2021.

   6.On 13 June 2022, the appeal was heard in the Gympie District Court before his Honour Judge Dearden.

   7.On 22 June 2022, his Honour Judge Dearden delivered his judgment.  His Honour dismissed the appeal and directed the parties to file submissions in relation to costs.”[1]

   [1]Submissions in relation to costs on behalf of the respondent filed 4 July 2022 [1]-[7].

   Power to award costs on appeal

3. Costs are a creature of statute and therefore can only be awarded where there is a legislative basis to do so.[2]

   [2]Knight v FP Special Assets Ltd (1992) 174 CLR 178 [182]; MNT v MEE (No. 2) [2020] QDC 126 [2].

4. The Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) s 142(2) provides that the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) apply to an appeal under the DFVPA. I accept the conclusions reached by Byrne QC DCJ in MNT v MEE (No. 2) [2020] QDC 100 [7]-[12] and Smith DCJA in AVI v SLA (No. 2) [2019] QDC 207 [7]-[10] in respect of my power to award costs in this appeal.

5. As Smith DCJA identified in AVI v SLA (No. 2) [2019] QDC 207 [11]:

   “Chapter 18 Part 3 of the UCPR deals with appeals to courts other than the Court of Appeal. Rule 785 provides that Chapter 18 Part 1 (other than some rules) applies to appeals to the District Court. Rule 766(1)(d) of the UCPR provides that the Court of Appeal (and hence the District Court because of r 785 of the UCPR) ‘may make the order as to the whole or part of the costs of an appeal it considers appropriate.’”

6. UCPR r 766(1)(d) provides:-

   “766       General powers

   (1)The Court of Appeal—

   …

   (d)may make the order as to the whole or part of the costs of an appeal it considers appropriate.”

7. UCPR r 771 provides:-

   “771       Assessment of costs of appeals

   The costs of appeals and all other matters brought before the Court of Appeal under this part are assessed under chapter 17A unless the Court of Appeal orders otherwise.”

8. It is clear therefore that the power to make orders in respect of costs, and the assessment of those costs in an appeal to the District 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].

9. UCPR r 681 (contained within UCPR Chapter 17A) sets out the general rule, namely:-

   “(1)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.”

10. The Court of Appeal in John Urquhartt/as Hart Renovations v Partington& Anor [2016] QCA 199 [8] confirmed that:-

    “… the general principle that a successful party is usually given costs in its favour, a principle inherent in r 681(1), remains applicable in this court determining the order as to costs considered appropriate pursuant to r 766(1)(a).” [citation deleted].

11. The High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 [134] confirmed that the general rule is, that the successful party should have its costs, but the power to award costs is subject to the discretion of the court, provided the court acts judicially.[4]

    [4]Oshlack v Richmond River Council (1998) 193 CLR 72 [40] (per Gaudron & Gummow JJ); [134.4] (per Kirby J).

12. It follows that:-

    “The starting point is that the costs of the appeal follow the event unless ordered otherwise.”[5]

    [5]BAK v Gallagher & Anor(No. 2) [2018] QDC 132 [24].

    Discretion as to costs

13. The starting point, as identified above, is that costs ordinarily follow the event, and the issue then is whether there is any sufficient reason to depart from that position.[6] It is clear that a court should hesitate before departing from the general rule that the successful party is entitled to its costs and it would only do so in an unusual case.[7]

    [6]Kilvington v Grigg & Ors (No. 2) [2011] QDC 37 [37].

    [7]Kilvington v Grigg & Ors (No. 2) [2011] QDC 37 [37].

14. The appellant in these proceedings has filed written submissions,[8] which substantially re-agitate the arguments that he has presented at various hearings and appeals previously in this litigation. In essence, he submits that he feared for his safety and wellbeing; that the application was not frivolous; that the learned acting magistrate failed to realise that the protection order was destroying the appellant and causing his children to grow up without their father; that Legal Aid was discriminating against him by funding the respondent and not him; that the respondent was using the instruments of the State to gain an advantage; that the appellant had funded the respondent to come to Australia and had funded her support; and that the appellant’s rights as a father had been violated “based on lies”.  With respect, none of the matters identified in the appellant’s written submissions would justify this court, on this appeal, departing from the general rule that the successful party was entitled to its costs.  As the respondent submits, there is no public interest aspect to this appeal,[9] nor were there any novel issues of law, and the appellant was wholly unsuccessful.[10]  Further, the respondent submits, and I accept, that it is not relevant that the appellant cannot, as he asserts in his written submissions, pay the respondent’s costs.[11] It follows that the appellant should pay the respondent’s costs of the appeal.

    [8]Submission of costs of breakup of family and legal advice filed 14 July 2022.

    [9]HZA v SHA [2019] QDC 125 [10].

    [10]Submissions in relation to costs on behalf of the respondent filed 4 July 2022 [25].

    [11]LAF v AP (No. 2) [2022] QDC 104 [20]-[22].

    Quantum of costs

15. The respondent submits that the court should exercise its discretion to order the appellant to pay the respondent’s costs on a Legal Aid basis as set out in the Schedule of Costs attached to the respondent’s submissions.[12]

    [12]Submissions in relation to costs on behalf of the respondent filed 4 July 2022 [27]-[28] & [Schedule of Costs].

16. Those costs are identified as follows:-

Professional fees (including GST)	Costs
Solicitor fees	$1,207.80
Barrister fees	$1,087.02
Sub-total of professional fees	$2,294.82
Outlays
Travel	$407.77
Printing	$440.00
Sub-total of outlays	$847.77
Total costs	$3,142.59

1. In my view, the costs sought are reasonable, appropriate, and reflect the costs paid to the respondent’s legal representatives by Legal Aid Queensland. Accordingly, I consider an order should be made that the appellant pay the respondent costs in the sum of $3,142.59.

   Order

2. I order that the appellant pay the respondent’s costs fixed at $3,142.59.