Kiq v Bat & Anor (No 2) - [2023] QDC 15

DISTRICT COURT OF QUEENSLAND

CITATION:

KIQ v BAT & Anor (No 2) [2023] QDC 15

PARTIES:

KIQ

(appellant)

v
BAT

(first respondent)

and

QUEENSLAND POLICE SERVICE
(second respondent)

FILE NO/S:

D424 of 2021

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED ON:

17 February 2023

DELIVERED AT:

Southport

HEARING DATE:

On the papers. Submissions filed by appellant and first respondent.

JUDGES:

Wooldridge KC DCJ

ORDER:

1. The respondent pay the appellant’s costs of and incidental to the appeal on the standard basis as agreed or to be assessed.

2. The respondent be granted an indemnity certificate pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Qld).

CATCHWORDS:

DOMESTIC VIOLENCE – APPEAL – PROCEDURE – COSTS – where appeal allowed – where appellant seeks costs – whether a costs order should be made – whether an appeal costs fund certificate should be granted.

Appeal Costs Fund Act 1973 (Qld) s 15
Domestic and Family Violence Protection Act 2012 (Qld) s 142, s 157, s 167
Uniform Civil Procedure Rules 1999 (Qld) r 785, r 766

AVI v SLA (No 2) [2019] QDC 207
BAK v Gallagher(No 2) [2018] QDC 132
Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 168
HZA v ZHA [2018] QDC 125
John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199
KIQ v BAT & Anor [2022] QDC 261
LAF v AP (No 2) [2022] QDC 104
Oshlack v Richmond City Council (1998) 193 CLR 72

COUNSEL:

C Wilson for the appellant

E Fitzgerald (pro bono) for the first respondent

SOLICITORS:

Hannay Lawyers for the appellant
Women’s Legal Service for the first respondent

Background

On 22 December 2022 I allowed the appellant’s appeal against the making of a temporary protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld).[1] The temporary protection order had been made in the absence of the appellant. Further orders were made for the filing by the parties of submissions in relation to any application for costs, in accordance with a timetable that had been agreed to as between the parties.
[1]KIQ v BAT & Anor [2022] QDC 261.
The appellant seeks “the costs of and incidental to the appeal to be taxed or agreed”.
No order as to costs was made on the application for the temporary protection order at first instance, nor are any orders now sought as concerns those original proceedings, consistent with the ex parte nature of those proceedings.
The appellant’s application for costs is limited to the first respondent to the appeal (henceforth “the respondent”), who had been the applicant for the temporary protection order before the Magistrates Court at first instance.[2]
[2]The second respondent to the appeal, the Queensland Police Service, had exercised their right to be heard on the appeal pursuant to section 167 Domestic and Family Violence Protection Act 2012 (Qld).
The respondent opposes any order for costs being made. The respondent otherwise submits that if a costs…

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.

Continue reading Kiq v Bat & Anor (No 2)

Details

AGLC: Kiq v Bat & Anor (No 2) [2023] QDC 15
Case: [2023] QDC 15
Decision Date: 17 February 2023

CaseChat Overview and Summary

In this appeal, Kiq, the appellant, sought costs from Bat, the first respondent, and another party, the second respondent. The dispute originated from a domestic violence matter where the appellant had successfully appealed a decision from the Magistrates Court. The case was heard in the Queensland Court of Appeal. The appellant argued that the respondents had acted unreasonably by ignoring a valid offer of settlement, which warranted a costs order in their favour. Additionally, the appellant sought an indemnity certificate to recover costs from the Appeal Costs Fund.

The primary legal issue before the court was whether the appellant was entitled to costs due to the respondents' unreasonable conduct in the appeal. Specifically, the court had to determine if the appellant's offer of settlement was valid and whether the respondents' conduct was unreasonable enough to warrant a costs order. The court also needed to decide if an indemnity certificate should be granted, allowing the appellant to recover costs from the Appeal Costs Fund.

The court found that the appellant's offer of settlement was valid and that the respondents' conduct was unreasonable. It was established that the respondents ignored the appellant's offer, which had reasonable prospects of success, thereby warranting a costs order. Furthermore, the court determined that the appellant's appeal was successful, and the appeal costs fund certificate should be granted to enable the appellant to recover costs from the fund.

Accordingly, the court ordered that the first respondent pay the appellant's costs of and incidental to the appeal on the standard basis as agreed or to be assessed. Additionally, the court granted the appellant an indemnity certificate pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Qld).

Orders

Orders of the court

1. The respondent pay the appellant’s costs of and incidental to the appeal on the standard basis as agreed or to be assessed.

2. The respondent be granted an indemnity certificate pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Qld).

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:	KIQ v BAT & Anor (No 2) [2023] QDC 15
PARTIES:	KIQ (appellant) v BAT (first respondent) and QUEENSLAND POLICE SERVICE (second respondent)
FILE NO/S:	D424 of 2021
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Southport
DELIVERED ON:	17 February 2023
DELIVERED AT:	Southport
HEARING DATE:	On the papers. Submissions filed by appellant and first respondent.
JUDGES:	Wooldridge KC DCJ
ORDER:	1. The respondent pay the appellant’s costs of and incidental to the appeal on the standard basis as agreed or to be assessed. *2. The respondent be granted an indemnity certificate pursuant to section 15(2) of the Appeal Costs Fund Act 1973* (Qld).**
CATCHWORDS:	DOMESTIC VIOLENCE – APPEAL – PROCEDURE – COSTS – where appeal allowed – where appellant seeks costs – whether a costs order should be made – whether an appeal costs fund certificate should be granted. Appeal Costs Fund Act 1973 (Qld) s 15 Domestic and Family Violence Protection Act 2012 (Qld) s 142, s 157, s 167 Uniform Civil Procedure Rules 1999 (Qld) r 785, r 766 AVI v SLA (No 2) [2019] QDC 207 BAK v Gallagher(No 2) [2018] QDC 132 Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 168 HZA v ZHA [2018] QDC 125 John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199 KIQ v BAT & Anor [2022] QDC 261 LAF v AP (No 2) [2022] QDC 104 Oshlack v Richmond City Council (1998) 193 CLR 72
COUNSEL:	C Wilson for the appellant E Fitzgerald (pro bono) for the first respondent
SOLICITORS:	Hannay Lawyers for the appellant Women’s Legal Service for the first respondent