KCD v AAM

[2009] QMC 24

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

KCD v AAM [2009] QMC 24

PARTIES:

KCD

(applicant)

v

AAM

(respondent)

FILE NO/S:

MAG11402/08(9)

DIVISION:

Magistrates Courts

PROCEEDING:

Application for Domestic Violence Protection Order

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

21 April 2009

DELIVERED AT:

Southport

HEARING DATE:

19 February 2009

MAGISTRATE:

Costanzo JJ

ORDER:

I order the Aggrieved to pay to the Respondent forthwith costs fixed in the sum of $4,870

CATCHWORDS:

DOMESTIC VIOLENCE - COSTS –– exercise of a statutory power to award costs –– source for deciding quantum of costs where Domestic Violence application dismissed for being vexatious –– meaning of “Complaint”, “Defendant” and “Order” under the Justices Act 1886

Acts Interpretation Act 1954, s 36

Domestic and Family Violence Protection Act 1989, s 38, s 61

Justices Act 1886, Part 6, Division 8

Uniform Civil Procedure Rules 1999, Chapter 17A, Part 2, Division 1 and Schedule 3

Flower & Hart v White Industries (Qld) Pty Ltd (2001) 109 FCR 280; [2001] FCA 370.

Orpen v Tarantello [2009] VSC 143.

Re Bendeich(No 2) (1994) 53 FCR 422; (1994) 126 ALR 643.

Knight v FP Special Assets Ltd (Knight's case) (1992) 174 CLR 178; (1992) 107 ALR 585; (1992) 66 ALJR 560; (1992) 8 ACSR 1; (1992) 10 ACLC 1129.

White Industries (Qld) Pty Ltd v Flower & Hart (No 2) (2000) 103 FCR 559; (2000) 177 ALR 567; [2000] FCA 1132.

COUNSEL:

JB Loel (solicitor) for aggrieved

PJ Baston for respondent

SOLICITORS:

Lillas & Loel for aggrieved

Hopgood Ganim for respondent

Application

1. This is an application for costs under section 61 of the Domestic and Family Violence Protection Act 1989 by the Respondent AAM against the Aggrieved KCD.

1. Specifically, the Applicant seeks an order that “[KCR] and his solicitors, Lillas & Loel, pay to [AAM] the sum of $4700 being her costs in these proceedings”.

1. The Aggrieved and his solicitor seek an order that “the Respondent’s costs of Aggrieved’s dismissed Application, payable by the aggrieved, be assessed on a standard basis”.

Background

1. On 19 February 2009 an application for a Domestic Violence order came before me for trial. I refused an application by the Aggrieved for adjournment of the trial. The Respondent applied to have the application dismissed and sought an order for costs. After protracted submissions and taking evidence from Mr Loel, Solicitor, I dismissed the application for a Protection Order made by the Aggrieved for being vexatious, an abuse of process and for want of prosecution.

1. I do not intend to repeat the reasons for the refusal of the adjournment and the dismissal of the Application for a Protection Order which I then stated on the record.

1. After stating those reasons and dismissing the Application I then ordered that “The Aggrieved shall pay the costs of today’s proceedings”.

1. I also issued directions about the filing and serving of the application for costs and any reply thereto and for the making of submissions in writing.

1. In due course those submissions arrived via email sent to the registry and were forwarded, eventually, to me.

Legislation

1. There is no Scale of Costs under the Domestic and Family Violence Protection Act 1989.

1. Section 61 of the Domestic and Family Violence Protection Act 1989 (the Act) provides for the only circumstances in which a costs order may be made on an application for a Protection Order under the Act:

61 Court may not award costs except if application malicious etc.

A court may not award costs on an application for—

(a) a protection order; or

(b) a revocation or variation of a domestic violence order (including a variation of conditions imposed by the order);

unless the court dismisses the application as malicious, deliberately false, frivolous or vexatious.

1. The court’s jurisdiction to hear and determine applications for Protection Orders under the Act and the proceedings before the court are governed by section 38 of the Act:

38 Conferral of jurisdiction

(1) Jurisdiction is conferred on—

(a) every Magistrates Court and magistrate to hear and determine all applications made to it or the magistrate under this Act; and

(b) every other court before which a person pleads guilty to, or is found guilty of, an offence that involves domestic violence.

(2) To remove doubt, it is declared that—

(a) for proceedings under this Act before a Magistrates Court or magistrate—the provisions of the Justices Act 1886 apply to the proceedings unless the application of that Act is inconsistent with this Act;

1. The proceedings under the Act are therefore determined by the provisions of the Justices Act 1886 in so far as they are not inconsistent with the Act.

1. “Proceedings” are not defined by the Justices Act itself, but they are defined at section 36 of the Acts Interpretation Act 1954:

“proceeding means a legal or other action or proceeding.”

1. An application for costs under 61 of the Domestic and Family Violence Protection Act 1989 (the Act) should therefore be determined under and in accordance with the relevant provisions of the Justices Act 1886 as long as they are not inconsistent with the Act.

1. In the Justices Act 1886 there is Part 6 (Proceedings in case of simple offences and breaches of duty). In Part 6 there is Division 8 (Costs). These are the only provisions in the Justices Act 1886 which could be considered to apply for present purposes; all other sections being relevant to appeals, adjournments, enforcement proceedings and other matters.

1. The first relevant section in Part 6, Division 8 is section 157:

157 Costs on conviction or order

In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.

1. The definition of “order” in section 4 states:

order includes any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it, but does not include any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the last mentioned case, whether or not the justices are sitting as a Magistrates Court or to hear an examination of witnesses in relation to an indictable offence.

1. The definition applies to the whole of the Justices Act but section 157 is expressed in terms of making an order against a defendant for payment of costs to a complainant.

1. The term “complainant” is not defined. It is reasonable to assume it means a person who brings the complaint.

1. The definition of “complaint” for the Justices Act 1886 does not include an application such as an application for a Protection Order or any other type of application whatsoever, Section 4 provides:

complaint includes the terms ‘information’, ‘information and complaint’, and ‘charge’ when used in any Act, and means an information, complaint or charge before a Magistrates Court.

defendant means a person complained against before a Magistrates Court or before justices for a simple offence, breach of duty or an indictable offence.

1. Therefore, section 157 does not provide the power to award costs upon the dismissal of an application for a Protection Order.

1. The next section in Division 8 is section 158:

158 Costs on dismissal

(1) When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.

1. When one has regard to the definitions above, section 158 does not provide the power either.

1. Section 158A is relevant only to making an order for costs in favour of a defendant against a complainant who is a police officer or public officer and therefore has no relevance here.

1. Section 158A then provides that in deciding the costs that are just and reasonable for division 8, the court may award costs only for an item, and up to the amount allowed of the item, under a scale of costs prescribed under a regulation (unless the court is satisfied a higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case. Section 159 is the last relevant section in Division 8 and states:

159 The sum allowed for costs to be specified in the conviction or order

The sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of jurisdiction.

1. Again, there is nothing in that section to advance the case for determining the costs under the Justices Act 1886.

Discussion

1. An application for costs under 61 of the Domestic and Family Violence Protection Act 1989 (the Act) can not therefore be determined under and in accordance with the provisions of the Justices Act 1886 because they apply only in relation to the dismissal of a complaint and orders for costs against a defendant and are therefore inconsistent with the Act.

1. This result is not surprising because a proceeding under the Act is civil and not criminal in nature. See for example section 9 which provides that “If a court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.”

1. Mr Baston submits I should fix the amount under Rule 683(2) of the Uniform Civil Procedure Rules 1999 (UCPR) at the highest scale of costs for Magistrates Court proceedings.

1. Mr Loel submits I should order the costs be assessed under Rule 683(3) UCPR

1. The UCPR provides for the ordering or assessment of costs in a magistrates court at Ch 17A (Costs), Part 2 (Costs of a proceeding), Div 1 (Costs of a proceeding generally). Under those rules, generally speaking, a party to a proceeding can not recover any costs of the proceeding from another party other than under the UCPR or an order of the court (R 680). Costs of a proceeding are in the discretion of the court but follow the event, unless the court orders otherwise (R 681). No-one here suggested otherwise. The costs of the proceeding a court may award may be awarded at any stage of a proceeding or after the proceeding ends as has happened in this case. However the award must be decided in accordance with chapter 17A (R 682).

1. Rule 683 then specifically states the rules applicable if the proceeding is in a magistrates court.

683 Costs in proceeding before Magistrates Court

(1) This rule applies to a proceeding before a Magistrates Court.

(2) The magistrate may fix the amount of the costs of the proceeding and order payment of the amount.

(3) However, the magistrate may order that the costs of the proceeding be assessed by a costs assessor if the magistrate considers it appropriate because of the nature and complexity of the proceeding.

1. I do not consider that the matter or proceeding before me was of such nature or complexity as to require the costs to be assessed. It was a straight forward application for a Protection Order in relation to alleged domestic violence. Except for the volume of material in Affidavits it was no different to similar appellations before this court and essentially would have involved questions of credibility. No particularly onerous or complex questions of law were foreshadowed. I will have more to say about the nature of the matter below.

1. Rule 683 is in contrast with the general rule in rule 687 under which the starting point is that “If, under these rules or an order of the court, a party is entitled to costs, the costs are to be assessed costs.” That rule then states that instead of assessed costs, the court may order a party to pay to another party—

(a) a specified part or percentage of assessed costs; or

(b) assessed costs to or from a specified stage of the proceeding; or

(c) an amount for costs fixed by the court; or

(d) an amount for costs to be decided in the way the court directs.

1. Clearly, under either rule 683 or rule 687 the court may award and fix costs in its discretion.

1. Within the same Part and division of chapter 17A, rule 691 then relevantly provides:

691 Australian lawyer’s costs

(1) For assessing costs on the standard basis, an Australian lawyer is entitled to charge and be allowed the costs under the scales of costs for work done for or in a proceeding in the court.

(2) The scales of costs are in—

…

(c) for Magistrates Courts—schedule 3.

(3) For an assessment for Magistrates Courts on the standard basis, the scale in schedule 3 appropriate for the amount the plaintiff recovers applies.

(4) For an assessment for Magistrates Courts on the indemnity basis, the scale in schedule 3 appropriate for the amount the plaintiff claims applies.

(5) If the nature and importance, or the difficulty or urgency, of a proceeding and the justice of the case justify it, the court may allow an increase of not more than 30% of the Australian lawyer’s costs allowable on an assessment under the relevant scale of costs.

…”

1. Here, there is no submission which could have been made for costs to be awarded on the standard or indemnity basis according to an amount claimed or recovered because this was an application for a domestic violence order. There was no claim, for example, for a money sum.

1. The circumstances in which a court will order the solicitor for one of the litigants to pay the costs of the opposing litigant are exceptional and usually require proof that the solicitor was “guilty of either professional misconduct or gross, as opposed to mere, negligence in the way they conduct their client's case.” See Re Bendeich(No 2) (1994) 53 FCR 422; (1994) 126 ALR 643 per Drummond J at 427, approved in Flower & Hart v White Industries (Qld) Pty Ltd (2001) 109 FCR 280; [2001] FCA 370.

1. The latest decision is that of Orpen v Tarantello [2009] VSC 143 where, on 16 April 2009, Beach J ordered costs on a party and party basis against a Barrister and Solicitor, relying upon the Supreme Court of Victoria’s inherent jurisdiction to order costs against legal practitioners [1]. At para [46] Beach J held:

There is no doubt that the court has an inherent jurisdiction to award costs against solicitors and counsel representing parties before it. The jurisdiction is to be exercised with care and caution. Whilst the circumstances which might enliven the court’s jurisdiction are narrow, they include serious dereliction of duty and serious misconduct or gross negligence. A serious breach of duty to the court can enliven the court’s jurisdiction. The inherent jurisdiction enables the court to design its sanctions for breach of duty in a way that will enable it to provide compensation for a disadvantaged litigant. However, a costs order is also punitive in the sense that even though it may be expressed in terms which are compensatory, its purpose is to punish the offending legal practitioner for a failure to fulfil his duty to the court.

[1] Beach J cited the following cases as authority for this principle: Myers v Elman [1940] AC 282; De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544 per French J (as his Honour then was) at pp 547–8 and White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169. Beach J also referred to s 24 of the Supreme Court Act 1986 (Vic) and contrasted s 43 of the Federal Court of Australia Act 1976 as referred to in De Sousa (above).

1. However, here the Respondent has not satisfied me that, given the specific rules governing the award of costs in a Magistrates Court (itself a creature of Statute), I have any power or inherent jurisdiction to order the solicitors for the Aggrieved to pay any or all of a costs order themselves.

1. Therefore, I do not need to consider this point of law or the cases referred to by Mr Loel any further.

1. However, in case it is relevant elsewhere, if I did have the above power I would have expressly made a factual finding that the solicitors for the Aggrieved were grossly negligent in failing to come prepared for hearing, refusing to commence the proceeding and in sending to court a solicitor who did not have carriage of the matter and who was grossly lacking in instructions and capacity to put reasoned and intelligible submissions to the court. I do not need here now to repeat also the other reasons I stated on the record for dismissing the Application for a domestic violence order but those reasons would also have been relevant to my finding against the solicitors.

1. It remains to me to decide, therefore, what quantum of costs I should fix in the exercise of my discretion.

1. Mr Baston sought an order for costs at the highest scale, Scale G, in the UCPR, schedule 3.

1. Mr Baston sought a total of $4,700.00, being compromised of:

Preparation for trial by Counsel, item 5(a)          $2,950.00

Conference (2hrs), item 6(d)  $  420.00

Hearing, item 6(f)  $1,330.00

Total   $4,700.00

1. Mr Baston or those instructing may be working from a superseded version of the schedule. I note that in reprint 6A of the UCPR, schedule 3, effective from 11 December 2008, the amounts for each Scale G item are more than each of the amounts quoted above. I will work from reprint 6A.

Conclusions

1. I agree that engaging senior junior counsel was reasonable having regard to the fact that the Aggrieved had retained Queens Counsel when the matter had previously been listed for hearing in August 2008. I agree that there was no reason why the Aggrieved could not have proceeded to trial. I take into account that extensive affidavit material was filed by each party. The matter had previously been listed and prepared for trial. The Aggrieved issued and had discharged a number of subpoenas, and he and the respondent had already filed extensive and exhaustive affidavits. The aggrieved sat in court, represented by a solicitor, and refused or failed to give instructions to commence the trial. No good and valid reason was ever offered as to why the trial could not at least begin so that the day would not be thrown away. He persisted in his application to adjourn the trial in the face of clear evidence that the police and the respondent would be turning up with witnesses and that they each would expect the trial to proceed.

1. However, while the matter involved a large volume of material and complex issues of credit, it did not in my view attract the very highest scale. That would attract a punitive element to the award for costs which is not to be intended by an award for costs.

1. I am satisfied however, that the volume of material and obvious preparation work and the nature and complexity of the material and issues of credit did attract a scale toward the top end. I consider that Scale F is appropriate, fair and reasonable in all of the circumstances.

1. Therefore, the amounts I allow, and which should be payable without further delay on the part of the Aggrieved, are:

Preparation for trial by Counsel, item 5(a)          $3,050.00

Conference (2hrs), item 6(d)  $  449.00

Hearing, item 6(f)  $1,380.00

Total   $4,870.00

ORDER

1. I order the Aggrieved to pay to the Respondent forthwith costs fixed in the sum of $4,870.00.