KAL v DJL (No 2)

Case [2022] QDC 275

DISTRICT COURT OF QUEENSLAND

CITATION:

KAL v DJL (No 2) [2022] QDC 275

PARTIES:

KAL

(appellant)

v

DJL

(respondent)
FILE NO:

D402/21

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

6 December 2022

DELIVERED AT:

Brisbane 

HEARING DATE:

On the papers

JUDGE:

Dann DCJ

ORDER

There be no order as to costs of the appeal

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT – COSTS – where a protection order was set aside – where the successful appellant seeks costs on an indemnity basis – whether there is sufficient basis to depart form the  usual course that costs follow the event – whether the appellant should be awarded costs on an indemnity basis

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) s 3, 4, 8, 32, 100, 142

Uniform Civil Procedure Rules 1999 (Qld), Chapter 17A, r 681, 776, 785

CASES:

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

HZA v ZHA [2018] QDC 125

KAL v DJL [2022] QDC 152

KBE v Queensland Police Service [2017] QDC 326

Oshlack v Richmond River Council (1998)193 CLR 72

COUNSEL:

N J Laing for the respondent

SOLICITORS:

N Collettt of Mark Savic Legal for the appellant

Evans Brandon Family Lawyers for the respondent

  1. On 24 June 2022 the Court upheld an appeal against the granting of a protection order against the appellant in favour of the respondent. The background to the proceeding is set out in the judgment[1] which I adopt without repeating it here.

  2. The original proceeding was a privately brought application for a domestic violence protection order in the Magistrates Court. Both parties were represented before the Magistrate and evidence was heard. This Court allowed the appeal because:

    (a)the act the learned Magistrate relied on as constituting an act of violence, which was a single email sent by the appellant to the respondent’s solicitors, was not found by her to be domestic violence within any of the meanings of that term in the legislation;

    (b)in respect of allegations concerning economic issues the Court was not satisfied that the respondent had met the onus to establish economic abuse within s 12 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) or otherwise acts of domestic violence within s 8 of the DFVPA;

    (c)the Court was satisfied that the appellant’s actions towards the respondent, in seeking to have the Courts intervene to make assessments of her mental health in the absence of any medical evidence that this might be warranted, constituted an act of domestic violence within the terms of s 8(1)(b) of the DFVPA; and

    (d)it was not necessary or desirable to make a protection order where the appellant:

    (i)had already determined he should not be pursuing this in the Family Court proceedings; and

    (ii)did not continue his application for a protection order

  3. After giving reasons, the Court indicated it would hear the parties to costs. It was late…

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AGLC
KAL v DJL (No 2) [2022] QDC 275
Case
[2022] QDC 275
Decision Date

CaseChat Overview and Summary

The matter of KAL v DJL (No 2) came before the court where KAL appealed against the setting aside of a protection order. The dispute centred around the appellant's application for costs on an indemnity basis, arguing that the usual rule that costs follow the event should be departed from due to the nature of the proceedings. The court had to decide if there were sufficient grounds to award such costs and what the appropriate basis for awarding costs should be.

The court examined the legal principles governing costs in appeals, particularly the circumstances under which costs could be awarded on an indemnity basis. The court considered the appellant's argument that the proceedings were vexatious or oppressive, and whether the respondent's conduct warranted such an award. The court also assessed the nature of the protection order and the circumstances leading to its setting aside. The decision required a balance between the appellant's right to seek redress for costs incurred and the respondent's right to a fair process.

In its reasoning, the court found that while the appeal was successful, the circumstances did not warrant a departure from the usual course of awarding costs. The court noted that the proceedings, while complex, were not so oppressive or vexatious as to justify an indemnity costs order. The court held that the usual order that costs follow the event was appropriate, and there was no basis to award costs on an indemnity basis. Consequently, the appeal was allowed, but no order was made regarding the costs of the appeal.

The court concluded that the appellant's application for costs on an indemnity basis was not substantiated by the facts of the case. The court ordered that there be no order as to the costs of the appeal, maintaining the standard approach to costs in such proceedings.

Orders

Orders of the court

There be no order as to 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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