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, consideredSOLICITORS:
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…
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- Case
- [2017] QDC 326
- Decision Date
CaseChat Overview and Summary
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
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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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