KBE v Queensland Police Service - [2017] QDC 326

DISTRICT COURT OF QUEENSLAND

CITATION:

KBE v Queensland Police Service [2017] QDC 326

PARTIES:

KBE
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

D145 of 2017

DIVISION:

Appellate

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

DELIVERED AT:

HEARING DATE:

JUDGE:

ORDER:

Costs on s 222 Justices Act 1886 (Qld) Appeal

Southport Magistrates Court

25 September 2017 (delivered ex tempore)

Southport

23 August 2017

Muir DCJ

The respondent pay the appellant’s costs of the appeal, fixed in the sum of $1,200.1.

CATCHWORDS:

DOMESTIC VIOLENCE – COSTS FOR APPEAL – Where appellant successfully appealed against the making of a temporary domestic violence protection order made in the Southport Magistrates Court – whether respondent should be ordered to pay appellant’s costs of the filing fee.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), ss 3, 4 , 42, 44, 47, 142, 157
Uniform Civil Procedure Rules 1999 (Qld), ch 17A, r 681
Supreme Court Act 1970 (NSW), s 69
Justice and Other Legislation Amendment Act2013 (Qld)

CASES:

FCA v Commissioner of Queensland Police Service [2014] QDC 46, considered
GKE v EUT [2014] QDC 248, considered
Oshlack v Richmond River Council [1998] 193 CLR 72, considered

SOLICITORS:
OTHER:

Queensland Police Service Legal Unit for the respondent

KBE, self-represented for the appellant

Introduction

On 23 August 2017, I heard an appeal by KBE against an order made by the learned Magistrate in the Southport Magistrates Court on 13 April 2017, at which time I set aside a temporary domestic violence protection order that had been issued against him under s 44 of the Domestic and Family Violence Protection Act2012 (Qld) (“the Act”).

In my analysis setting out why the order should be set aside, I reached the view that unfortunately, through no fault of the learned Magistrate, he had decided the application in the first instance on the basis that the appellant had been served. This meant that the Magistrate proceeded under s 45 of the Act, as opposed to s 47 of the Act. Pursuant to s 47 of the Act, a temporary protection order can only be made if the Court is satisfied that the making of the temporary protection order, despite the respondent having not been served with the application, is “necessary or desirable” to protect the aggrieved or another person named in the application from domestic violence. No such analysis was undertaken by the Magistrate in first instance.

Upon finding the error, I set aside the order and reconsidered the evidence. In the resolve I did not consider that the order was necessary or desirable to protect the aggrieved. The matter was remitted back to the Magistrates Court for hearing.

Following the making of these orders, the appellant submitted that I ought to make a further order that the respondent pay the costs of his filing fee of $1,200 (a copy of the receipt was made exhibit 1). I then made directions as to the filing of written submissions in relation to costs. I subsequently…

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.

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Details

Case: [2017] QDC 326
Decision Date: 25 September 2017

CaseChat Overview and Summary

KBE, the appellant, appealed against the making of a temporary domestic violence protection order by the respondent, the Queensland Police Service, which was made in the Southport Magistrates Court. The dispute involved the legal question of whether the respondent should be ordered to pay the appellant’s costs of the filing fee for the appeal. The case was heard by Muir DCJ in the Southport Magistrates Court on 23 August 2017, and the decision was delivered ex tempore on 25 September 2017.

The central legal issue before the court was whether the respondent, as the party against whom the appeal was successful, should bear the costs of the appellant's filing fee for the appeal. The appellant argued that the successful outcome of the appeal justified the imposition of costs against the respondent. The respondent contended that there were no grounds to order them to pay the appellant’s costs of the appeal, as the appeal was ultimately unsuccessful in preventing the enforcement of the original order.

The court found in favour of the appellant, holding that the respondent should be ordered to pay the appellant’s costs of the appeal. Muir DCJ reasoned that the successful appeal against the making of the temporary domestic violence protection order justified the imposition of costs against the respondent. The court fixed the amount of costs to be paid by the respondent at $1,200.1, which covered the filing fee for the appeal. The decision underscored the importance of ensuring that legal processes do not unduly burden successful appellants and that costs may be awarded to maintain the integrity and fairness of the legal system.

The court's final order was that the respondent pay the appellant’s costs of the appeal in the sum of $1,200.1, as per section 222 of the Justices Act 1886 (Qld).

Orders

Orders of the court

Costs on s 222 Justices Act 1886 (Qld) Appeal

Southport Magistrates Court

25 September 2017 (delivered ex tempore)

Southport

23 August 2017

Muir DCJ

The respondent pay the appellant’s costs of the appeal, fixed in the sum of $1,200.1.

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.

CITATION:	KBE v Queensland Police Service [2017] QDC 326
PARTIES:	KBE (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	D145 of 2017
DIVISION:	Appellate
PROCEEDING: ORIGINATING COURT: DELIVERED ON: DELIVERED AT: HEARING DATE: JUDGE: ORDER:	Costs on s 222 Justices Act 1886 (Qld) Appeal Southport Magistrates Court 25 September 2017 (delivered ex tempore) Southport 23 August 2017 Muir DCJ The respondent pay the appellant’s costs of the appeal, fixed in the sum of $1,200.1.
CATCHWORDS:	DOMESTIC VIOLENCE – COSTS FOR APPEAL – Where appellant successfully appealed against the making of a temporary domestic violence protection order made in the Southport Magistrates Court – whether respondent should be ordered to pay appellant’s costs of the filing fee.
LEGISLATION:	Domestic and Family Violence Protection Act 2012 (Qld), ss 3, 4 , 42, 44, 47, 142, 157 Uniform Civil Procedure Rules 1999 (Qld), ch 17A, r 681 Supreme Court Act 1970 (NSW), s 69 Justice and Other Legislation Amendment Act2013 (Qld)
CASES:	FCA v Commissioner of Queensland Police Service [2014] QDC 46, considered GKE v EUT [2014] QDC 248, considered Oshlack v Richmond River Council [1998] 193 CLR 72, considered
SOLICITORS: OTHER:	Queensland Police Service Legal Unit for the respondent KBE, self-represented for the appellant