Lap v HBY - [2021] QCA 123

SUPREME COURT OF QUEENSLAND

CITATION:

LAP v HBY & Anor [2021] QCA 123

PARTIES:

LAP
(appellant)
v
HBY
(first respondent)
WBI
(second respondent)

FILE NO/S:

Appeal No 2339 of 2021
DC No 4040 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

District Court at Brisbane – Date of Judgment: 3 February 2021 (Jones DCJ)

DELIVERED ON:

4 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Fraser JA

ORDER:

Appellant pay the first respondent’s costs of the appeal, including the costs of and incidental to the hearing on 26 March 2021.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where the appellant’s appeal was struck out upon the ground that the Court of Appeal lacked jurisdiction to hear it – where the first respondent applied for an order that the appellant pay the respondent’s costs of the proceeding to be assessed on the indemnity basis – where the appellant seeks an order that each party pay that party’s own costs – where the appellant also submits that there is a doubt whether the Court of Appeal has power to award costs – where the appellant argues indemnity costs should not be awarded primarily due to the public interest in domestic violence and the respondent’s protracted engagement in protracted legal proceedings, retraumatising the appellant every time – whether an award for costs should be made and if so, on what basis

Civil Proceedings Act2011 (Qld), s 15
Domestic and Family Violence Protection Act 2012 (Qld), s 136, s 142, s 157
Uniform Civil Procedure Rules 1999 (Qld), r 681, r 766

GKE v EUT [2014] QDC 248, cited
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, considered
Wagners Cement Pty Ltd & Anor v Boral Resources (Qld) Pty Limited & Anor[2021] QCA 79, cited

COUNSEL:

The appellant appeared on her own behalf
S J Keim SC for the first respondent

SOLICITORS:

The appellant appeared on her own behalf
PHV Law Solicitors and Consultants for the first respondent
Queensland Police Service Legal Unit for the second respondent

FRASER JA: On 26 March 2021 I ordered that the appellant’s appeal be struck out upon the ground that the Court of Appeal lacked jurisdiction to hear it. The first respondent applied for an order that the appellant pay the first respondent’s costs of the proceeding to be assessed on the indemnity basis. Upon application by the appellant I granted her leave to make submissions in writing in relation to the appropriate order as to costs, including the basis of assessment.
I do not accept the appellant’s submission that there is a doubt whether the Court of Appeal has power to award costs. The appellant refers to s 157 of the Domestic and Family Violence Protection Act2012. Under that section, each party to a proceeding for an application under that Act must…

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 Lap v HBY

Details

AGLC: Lap v HBY [2021] QCA 123
Case: [2021] QCA 123
Decision Date: 4 June 2021

CaseChat Overview and Summary

In the matter of Lap v HBY, the appellant, who is also the first respondent, faced a situation where their appeal was dismissed on the grounds that the Court of Appeal did not have the jurisdiction to hear it. Following this, the first respondent applied for an order that the appellant pay their costs of the appeal to be assessed on the indemnity basis. The appellant, in turn, sought an order that each party pay their own costs. Additionally, the appellant contended that there was doubt about whether the Court of Appeal had the authority to award costs and argued that indemnity costs should not be awarded, primarily due to the public interest in domestic violence and the respondent’s extended engagement in legal proceedings, which had the effect of retraumatising the appellant every time. The court was tasked with determining whether an award for costs should be made and, if so, on what basis.

The legal issues before the court involved the general rule that costs follow the event, the circumstances under which indemnity costs may be awarded, and whether the public interest in domestic violence and the retraumatising effect of protracted legal proceedings could be considered in determining the basis for awarding costs. The court needed to balance these considerations against the appellant’s argument that the Court of Appeal may not have the power to award costs in this context.

In deciding the matter, the court found that it did have the authority to award costs and that it was appropriate to do so on an indemnity basis. The court acknowledged the public interest in domestic violence cases and the retraumatising effect of prolonged legal proceedings but concluded that these factors did not override the general rule that costs follow the event. The court held that the appellant should be ordered to pay the first respondent’s costs of the appeal, including the costs of and incidental to the hearing on 26 March 2021. The court's decision was based on the principle that the first respondent was the prevailing party and thus entitled to indemnity costs under the general rule.

Orders

Orders of the court

Appellant pay the first respondent’s costs of the appeal, including the costs of and incidental to the hearing on 26 March 2021.

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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CITATION:	LAP v HBY & Anor [2021] QCA 123
PARTIES:	LAP (appellant) v HBY (first respondent) WBI (second respondent)
FILE NO/S:	Appeal No 2339 of 2021 DC No 4040 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	District Court at Brisbane – Date of Judgment: 3 February 2021 (Jones DCJ)
DELIVERED ON:	4 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Fraser JA
ORDER:	Appellant pay the first respondent’s costs of the appeal, including the costs of and incidental to the hearing on 26 March 2021.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where the appellant’s appeal was struck out upon the ground that the Court of Appeal lacked jurisdiction to hear it – where the first respondent applied for an order that the appellant pay the respondent’s costs of the proceeding to be assessed on the indemnity basis – where the appellant seeks an order that each party pay that party’s own costs – where the appellant also submits that there is a doubt whether the Court of Appeal has power to award costs – where the appellant argues indemnity costs should not be awarded primarily due to the public interest in domestic violence and the respondent’s protracted engagement in protracted legal proceedings, retraumatising the appellant every time – whether an award for costs should be made and if so, on what basis Civil Proceedings Act2011 (Qld), s 15 Domestic and Family Violence Protection Act 2012 (Qld), s 136, s 142, s 157 Uniform Civil Procedure Rules 1999 (Qld), r 681, r 766 GKE v EUT [2014] QDC 248, cited Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, considered Wagners Cement Pty Ltd & Anor v Boral Resources (Qld) Pty Limited & Anor[2021] QCA 79, cited
COUNSEL:	The appellant appeared on her own behalf S J Keim SC for the first respondent
SOLICITORS:	The appellant appeared on her own behalf PHV Law Solicitors and Consultants for the first respondent Queensland Police Service Legal Unit for the second respondent