MHH v Lan
[2016] QMC 1
•4 February 2016
MAGISTRATES COURT OF QUEENSLAND
CITATION:MHH v LAN [2016] QMC 1
PARTIES:AMA (applicant in both applications)
MHH (aggrieved)
AND
LAN (respondent)
LAH (aggrieved)
AND
NAH (respondent)
FILE NOS: TOOW-MAG 9767/15 & 9768/15
ORIGINATING COURT: Magistrates Court held at Toowoomba
HEARING: 16 December 2015 with subsequent written submissions to be filed 4 & 29 January 2016
DELIVERED ON: 4 February 2016
DELIVERED AT: Toowoomba
MAGISTRATE: G. Lee
ORDER: The applicant in both applications pay the respondents’ costs in the amount of $763.
CATCHWORDS: Domestic Violence – applicant names child as aggrieved – child precluded from being an aggrieved by virtue of section 22
Domestic Violence – costs- exception to the “no costs” rule - whether application frivolous or vexatious – if so, should costs be awarded – if so, should costs be reduced from that in the scale
Domestic and Family Violence Protection Act 2012, ss 142, 143(a), 157
Domestic and Family Violence Protection Rules 2014, Part 7
Justices Act 1886, ss157, 158, 158A, 158B
Magistrates Courts Act 1921, s 57C
Uniform Civil Procedure Rules 1999, Chapter 17A, rr 702, 703, 743SThe following cases were referred to:
Attorney General v Michael (1999) WASCA 181
Attorney General v Wentworth (1988) 14 NSWLR 481
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
GKE v EUT [2014] QDC 248
HMG v BRC [2010] QDC 485
LKF v MRR [2012] QDC 355
Lohe v Bird [2004] QSC 23
Mudie v Gainriver Pty Ltd (No 2) [2002] QCA 546
Re Cameron [1996] Qd R 218
APPEARANCES: Mr D Lewis (Solicitor) for the Applicant (as duty lawyer on 16 December 2015 only)
Mr A. B. Balzamo of Counsel instructed by Murdoch Lawyers for both respondents
[1] On 7 December 2015 the applicant filed two applications for protection orders under the Domestic and Family Violence Protection Act 2012 (the Act) on behalf of her two daughters aged nearly 12 and 8 respectively who are named as the aggrieved in each application.
[2] The respondent in the application for the 12 year old is the current partner of the father. The crux of the allegations are constant harassment and manipulation by text and skype messaging.
[3] The respondent in the application for the 8 year old is the paternal grandmother. It is alleged that, in breach of family law orders, the respondent approached the child in class at school and attempted to coax her away on 30 November 2015.
[4] It is not necessary to say any more about the allegations suffice to say that there has been, and continues to be, significant family law litigation regarding parenting orders in relation to the two daughters named as the aggrieved in the applications. I am told there is also a current domestic violence order protecting the father as the aggrieved and both respondents in this case as named persons against the current applicant as respondent. The respondents’ submissions also assert that the applicant has been fined for previous breaches and is under police investigation for further breaches[1].
[1] Para [8] submissions for the respondents.
[5] The respondents were served with the applications on 12 and 10 December 2015 respectively returnable in court on 16 December 2015.
[6] On 16 December 2015, the applicant, no doubt upon advice from the duty lawyer in the domestic violence call over list that day, wished to withdraw her applications.
[7] The reason for this course is clear. Section 22(1) of the Act says that a child can be named as an aggrieved in an application for a domestic violence order. However, section 22(2) provides:
22 Child as aggrieved or respondent
…
(2) However, a child can only be named as the aggrieved …
if an intimate personal relationship or an informal
care relationship exists between the child and the other party
named in the application …
[8] There is no definition of “child” with reference to age in the Act. However, each of the applicant’s daughters is a child being under 18: see definition of “child” in Schedule I of the Acts Interpretation Act 1954.
[9] It is not in dispute that the applicant’s daughters are not in an “intimate personal relationship” with the respondents as that term is defined in section 14 of the Act and not in an “informal care relationship” with the respondents as that term is defined in section 20 of the Act.
[10]
Counsel for the respondents submitted that the applications should be dismissed and then made an application for costs. After limited oral submissions, the matters were adjourned to be determined on the papers with directions that the respondents file and serve written submissions by 4 January 2016 and the applicant file her submissions by 29 January 2016 after consulting her family law solicitors. No written submissions have been received from the applicant as of
4 February 2016.
The Effect of the Applicant’s purported withdrawal
[11] The applicant sought to withdraw her applications during the first mention on 16 December 2015: see rule 50(1) (a) of the Domestic Violence and Family Protection Rules 2014 (the rules). I have not had the benefit of any submissions on this rule or the effect of it in the circumstances of this case. The ultimate question is whether the court has any say in whether the withdrawal should be accepted in circumstances where the respondents seek the applications be dismissed and an order for costs under section 157.
[12] Under rule 50(1) an applicant can withdraw orally during a proceeding or in writing to the Clerk of the Court. Subsequent sub rules deal with service of written applications to withdraw that have been received by the Clerk of the Court.
[13] Sub rule 50(5) then provides that a court “may decide an application to withdraw without the parties appearing unless [the court] orders otherwise”. Rule 50 as a whole seems to be directed to written applications to withdraw that have been received by the Clerk of the Court prior to a court date. It also contemplates that a court has the power to decide the “application to withdraw” after service on the opposing party whether or not the parties are required to appear. The rule is silent about oral applications to withdraw “during a proceeding in a DFVP court[2]”. By inference at least, I take the view that a court may hear and decide such applications. If that was not the case, it could lead to a manifestly unjust result by preventing an order being made under section 157 where an opposing party, who is entitled under section 146(1) to be represented by a lawyer, has incurred legal costs. Section 157 requires the application to be “dismissed” on various grounds for a costs order. In my view, the rules should be amended to make it abundantly clear[3].
[2] As defined in section 6 of the Act.
[3] Examples in other jurisdictions where parties can appear by a lawyer: rule 304 UCPR in Part 3 “Discontinuance and Withdrawal” Chapter 9 “Ending Proceedings early”; rules 15 & 16 in Part 2 “Conduct of Proceedings” of Planning and Environment Court Rules 2010.
Respondents’ Submissions as to costs
[14] It was submitted that while the parties must as a general rule bear their own costs in proceedings under the Act in accordance with section 157(1), the proceedings in this case were frivolous or vexatious so as to warrant an order for costs under section 157 (2)[4].
[4] Paras [15] to [23] submissions for the respondents.
[15] Section 157 provides[5]:
[5] In Division 3 “Other powers of court” of Part 5 “Court proceedings”.
157 Costs
(1) Each party to a proceeding for an application under this Act
must bear the party’s own costs for the proceeding.
(2) However, the court may award costs against a party who
makes an application that the court hears and decides to
dismiss on the grounds that the application is malicious,
deliberately false, frivolous or vexatious.
(3) In this section—party includes an aggrieved. (emphasis added)
[16] It was further submitted that costs should be awarded on an indemnity basis in accordance with the principles outlined in Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225[6]. The amount of $4,466.69 is claimed comprising $3,850 (including GST) for counsel’s fees and $616.69 (including GST) for solicitor’s fees representing 1.5 hours. Counsel, who came from Brisbane, was not instructed in court although briefed by solicitors. He was in attendance from 9 am to 4 pm on 16 December 2015, a busy callover day.
[6] Paras [24] to [28] submissions for the respondents.
[17] The respondents’ submissions focussed on section 157 of the Act and the meaning of “frivolous” and “vexatious” presumably on the basis that section 157 provides the source of power to award costs in this jurisdiction and that once it is established that a party’s conduct was frivolous or vexatious, the power to award costs is enlivened providing the court with an unfettered discretion to award costs.
[18] For reasons that follow, I do not agree that this court exercising jurisdiction under the Act has the power to award indemnity costs as that term is commonly referred to.
Power to award costs
[19] The starting point on such a discussion is that the power of this court to award costs is not “inherent”. It is a creature of statute. While observations by courts on costs in relation to other statutory regimes may be of general assistance “they cannot be allowed to distract attention from the terms of the particular statute in question”. The nature and extent of that power and the circumstances in which that power can be exercised is to be discerned from the terms of the statute that creates the power: see HMG v BRC [2010] QDC 485[7] at [58] citing the Court of Appeal case of Tamawood Limited v Paans [2005] 2 QdR 101.
[7] Per Dorney QC DCJ. when considering the costs regime under the now repealed Domestic and Family Violence Protection Act 1989.
[20] Sections 136 & 137 of the Act[8] confer jurisdiction on a Magistrates Court constituted by a magistrate to hear and decide applications under the Act.
[8] In Division 1 “Jurisdiction” of Part 5 “Court proceedings”.
[21] One then turns to the provisions of the Act to identify a source of power to award costs. Section 157 has already been noted.
[22] A suite of legislative changes were made with effect from 28 February 2015 by the Justice and Other Legislation Amendment Act 2013 (the amending Act) impacting on the power to award costs and the quantum of those costs under the Act.
[23] It is evident from a number of decided cases under the former Domestic and Family Violence Protection Act 1989 and the scheme under the Act prior to these changes, the source of power to award costs and the quantum of those costs were the subject of dispute: see for example LKF v MRR [2012] QDC 355 Long SC DCJ, HMG v BRC [2010] QDC 485 Dorney QC DCJ, GKE v EUT [2014] QDC 248 McGill SC DCJ and KCD v AAM [2009] QMC 24 Costanzo M.
[24] In short, section 142 as it stood prior to the amending Act[9] provided which Uniform Civil Procedure Rules 1999 (UCPR) applied. They did not include Chapter 17A UCPR entitled “Costs” which, among other things, differentiated between costs on a standard and indemnity basis[10]. However, section 143(a) provided that, subject to any inconsistency with the Act, the Justices Act 1886 applied which included the power to award costs and provisions as to the quantum of those costs: see Division 8 Part 6 Justices Act 1886[11] and Justices
Regulation 2014[12]. The maximum costs this court could have ordered under this regime in favour of the respondents was $1500 for this uncomplicated matter[13].[9] Entitled “Application of Uniform Civil Procedure Rules 1999”.
[10] Rules 702, 703 and 743S UCPR.
[11] Sections 157, 158, 158A, 158B Justices Act 1886.
[12] Part 6 “Costs and fees” and Schedule 2.
[13] Item 1 Part 2 Schedule 2 of Justices Regulation 2014. This is not a matter that falls within section 158B (2) Justices Act 1886 which allows for a higher amount of costs that “is just and reasonable having regard to the special difficulty, complexity or importance of the case”.
[25] The amendments to the Act which took effect 28 February 2015 now expressly provide for the source of power to order costs and the quantum of those costs[14]. No reported court decisions on costs decided after those amendments came into effect have been drawn to my attention nor could I find any. I note in SGLB v PAB [2015] QMC 8 where both parties were legally represented, an application under the Act as amended was permanently stayed for an abuse of process. However, the judgment does not reveal an application for costs.
[14] See Shanahan DCJ et al, LexisNexis, Carter’s Criminal Law of Queensland, page 18,030 para [11,500.10].
[26] Section 142[15] was replaced[16] and now provides:
[15] In Division 2 “Practice and procedure” of Part 5 “Court proceedings”.
[16] Justice and Other Legislation Amendment Act 2013 Part 15 section 67.
142 Procedure for proceeding under this Act
(1) The Domestic and Family Violence Protection Rules made
under the Magistrates Courts Act 1921, section 57C apply
for—(a) a proceeding in a court under this Act; or
(b) the registry of a court in relation to a proceeding under
this Act.
(2) The Uniform Civil Procedure Rules 1999 apply to an appeal
under this Act.
(3) To remove any doubt, it is declared that the Childrens Court
Rules 1997 and the Uniform Civil Procedure Rules 1999 do
not apply to a proceeding in a court under this Act.
[27] By the same amending Act[17], the Magistrates Courts Act 1921 was amended by including a new section 57C[18] which provides:
[17] Justice and Other Legislation Amendment Act 2013 Part 28 section 140.
[18] In Part 7 “Miscellaneous”.
57C Rule-making power
(1) The Governor in Council may make rules of court providing
for the practices and procedure of—(a) a proceeding in a court under the Domestic and Family
Violence Protection Act 2012; or
(b) a registry of a court in relation to a proceeding under
that Act.
(2) A rule may only be made with the consent of the Chief
Magistrate.
(3) Rules of court made under this section are to be called the
Domestic and Family Violence Protection Rules.
(4) In this section—
court see the Domestic and Family Violence Protection Act
2012, section 6.
[28]
The Domestic and Family Violence Protection Rules 2014 (the rules) came into force on
28 February 2015[19]. Part 7 of the rules, entitled “Costs”, provide how costs are to be assessed “if [this court] awards costs against a party under [the Act], section 157(2)”: rule 51. Contrary to LKF v MRR [2012] QDC 355, the statutory scheme now suggests that section 157 provides the source of power to award costs.
[19] Rule 2.
[29] The court can fix the amount of those costs or order they be assessed by a costs assessor: rules 52(1) & (2). For assessing costs under rule 52, a lawyer is entitled to charge and be allowed costs in accordance with “the scale of costs set out in schedule 1” (rule 52(3)) although a court can direct that costs be less than the costs set out in schedule 1: item 1(3) Part 1 Schedule 1.
[30] It should be still noted that the Justices Act 1886 continues to generally apply subject to inconsistency. Section 143(a) of the Act[20] was not amended. However, given the changes made by the amending Act, the costs provisions of the Justices Act 1886 no longer apply as they are inconsistent with the costs provisions of the Act.
[20] In Division 2 “Practice and procedure” of Part 5 “Court proceedings”.
[31] Submissions were silent on these matters. While inviting further submissions would have been desirable I was also mindful that further costs would be incurred. Accordingly, and given the straight forward application of section 22 of the Act resulting in ending these applications at a very early stage, I decided to proceed to finalise the matter without delay to limit costs[21].
[21] In keeping with the spirit of rule 5 of the rules - “Main Objects of rules”.
Should a costs order be made under section 157(2)?
Frivolous or vexatious?
[32] This case is somewhat unusual where both applications have terminated at a very early stage on the first court mention. This is in contrast to those cases which have considered “frivolous” or “vexatious” after litigation had run its full course affording the court a better opportunity of evaluating a party’s conduct.
[33] Although under section 146(1) a party may be represented by a lawyer, section 157 of the Act essentially provides for a “no costs” jurisdiction with a limited ability to award costs. These competing considerations have been described in respect of an almost identical costs provision as striking a balance between “not discouraging citizens from approaching the court, while not leaving the door open to manifestly groundless actions”[22].
[22] Per AlanWilson SC DCJ (as he then was) in Millmeran Shire Council v Smith & Anor (No 2) [2008] QPEC 113 at [10] in considering now repealed s 4.1.23(2) (b) Integrated Planning Act 1997.
[34] It should also be noted, as submitted by the duty lawyer, that even if a condition in section 157(2) is satisfied, there is still an overriding discretion whether or not to award costs.
[35] Mudie v Gainriver Pty Ltd (No 2) [2003] QdR 271 (Mudie)[23], which has been applied in a number of subsequent cases in the Planning and Environment Court[24], was cited to support the view that these applications are frivolous or vexatious. A similar costs provision to section 157, section 7.6(1) of the Local Government (Planning and Environment) Act 1990 (now repealed), was considered after protracted litigation. It provided:
“7.6(1) Subject to subsection (1A), each of the parties to an appeal or other proceedings is to bear their own costs.
(1A) The [Planning and Environment] Court may, upon application made to it, order such costs … as it considers appropriate in the following cases –(a)where it considers the appeal or other proceedings to have been frivolous or vexatious
[23] McMurdo P., Williams JA. & Atkinson J.
[24]For example, Millmerran Shire Council v Smith (No 2) [2008] QPEC 113, Rofail v Wells (No 2) [2011] QPEC 131, Stevenson Group Investments Pty Ltd v Nunn and others [2012] QPEC 7.
[36] McMurdo P & Atkinson J said at [35] (footnotes omitted):
[35] The words "frivolous or vexatious" are not defined in the Act and should be given
their ordinary meaning, unfettered by their meaning in the very different context of
striking out or staying proceedings for an abuse of process. By the time an
application for costs is made, the court knows the issues which have been litigated
whilst in interlocutory applications, the court must to some extent speculate and must
necessarily be cautious to ensure a deserving claimant is not unjustly deprived of
the opportunity of a trial of the action. The Macquarie Dictionary defines
"frivolous" as "of little or no weight, worth or importance; not worthy of serious
notice: a frivolous objection. 2. characterised by lack of seriousness or sense:
frivolous conduct …" and "vexatious" as "1. causing vexation; vexing; annoying
…".
[37] As to the meaning of “frivolous” and “vexatious” Williams JA also said at [59] (footnotes omitted):
… Each word is used in everyday language and there is little doubt as
to the ordinary meaning of each. The Shorter Oxford English Dictionary defines
“frivolous” as follows:
“1. Of little or no value or importance, paltry; (of a claim, charge,
etc) having no reasonable grounds. 2. Lacking seriousness or sense;
silly.”
That work defines “vexatious” as follows:
“1. Causing or tending to cause vexation, annoyance, or distress;
annoying, troublesome. 2. In law. Of an action; instituted without
sufficient grounds for winning purely to cause trouble or annoyance
to the defendant.”
[38] In applying those meanings relevant to that case, the Court of Appeal awarded costs under section 7.6.(1).
[39] The Shorter Oxford English Dictionary[25] provides other meanings for “frivolous” including relevantly, “manifestly futile”. “Futile” therein means, among other things, “incapable of producing any result; useless, ineffectual, vain”. A similar meaning is found in the Macquarie Dictionary (6th ed.).
[25] Third Edition (at p 809) supplied by the Supreme Court library.
[40] The respondents also relied on other court decisions as to the meaning of “vexatious”. In considering “vexatious” in the Vexatious Litigants Act 1981 McMurdo J in Lohe v Bird [2004] QSC 23 at [4] & [5] cited with approval the characterisation of the test expressed by Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481 at 491 that it is unnecessary to show an improper motive in instituting proceedings:
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
[41] The respondents rely predominantly on point 3.
[42] However, for the purposes of the Vexatious Litigants Act 1981 McMurdo J in Lohe v Bird at [5] adopted the views expressed in Attorney General v Michael [1999] WACA 181[26] at [126] that the “utterly hopeless” test is too narrow connoting proceedings must be devoid of any merit and identifying circumstances in which cases may be vexatious where a cause of action is identified for which there may be some form of remedy. Note also Re Cameron [1996] Qd R 218 per Fitzgerald P at 220 expressing a broad test of what are “vexatious legal proceedings” with a range of factors including “the existence or lack of reasonable grounds for the claims sought to be made”. There is no need to explore this further here.
[26] Pidgeon, Anderson & Steytler JJ.
[43] In the present case, it was submitted for the respondents that the applications are “utterly hopeless” in that section 22 of the Act precludes the two children being named as aggrieved. It was further submitted that at best, the applicant started these proceedings “with reckless abandon, heedless of consequences that might follow, not caring whether the respondents respond to litigation by seeking legal advice and representation” and consequently “the proceedings [were] brought frivolously and vexatiously in the ordinary sense of those words”.[27]
[27] Para 22 submissions for the respondents.
[44] The respondents’ alternative submission was that proceedings were brought maliciously[28]. However, I would not make such a finding given the limited information provided at a time when the applications did not advance beyond the first court appearance.
[28] Para 23 submissions for the respondents.
[45] As the Court of Appeal in Mudie has referred to, a court must act cautiously in current circumstances where no evidence has been heard. However, this case is a simple application of section 22 of the Act which limits when a child can be named as an aggrieved.
[46] I find that these applications are vexatious on the ground that, irrespective of the applicant’s motives, they are “untenable” and “utterly hopeless” because of section 22. I also find the applications are frivolous because they are “futile” and having no reasonable grounds of success by naming the children as the aggrieved. This conclusion does not mean, however, that the respondents are entitled to the costs sought.
Residual discretion to award costs?
[47] Given that a condition in section 157(2) is satisfied to open the way for a costs order to be made, the next question is whether the court should exercise its discretion to award costs to the respondents in an amount calculated with regard to the rules. There is no guidance in the Act or rules in this respect.
[48] First, I digress to mention section 157 (2) which provides the power to award costs where a court “hears and decides” to dismiss the application on the grounds referred to. Where a respondent appears, the court may hear and decide the application: section 38(2) (a). Relevantly, the court can only dismiss an application without deciding it where the applicant does not appear: section 38(2) (c) & (3) (a). In this case the applications were heard and decided in accordance with section 157. The applicant and respondents appeared.
[49] The respondents submit that these applications were brought “in wilful disregard of …clearly established law”: Colgate-Palmolive v Cussons Pty Ltd at 233. The established law is section 22 of the Act. Further, the applicant did not indicate a withdrawal until the last moment on the call over day after which time the respondents and their counsel were already in attendance.
[50] I note the applicant was not legally represented when she filed the applications in the court registry although it appears she is not a stranger to this jurisdiction being a respondent in a current domestic violence order. Court staff cannot give legal advice and must accept applications presented to them. I also note that, according to their website, DV Connect cannot provide legal advice.
[51] While it seems the applicant has lawyers acting for her in family law matters, it is not known if they are privately retained or funded by legal aid. Parenting orders were made in the Federal Circuit Court on 19 June 2015. Details of those orders are not known to this court. The matter was to return to that court on 22 January 2016 in relation to alleged contraventions by the applicant.
[52] The respondents submitted that, in order to save costs, they jointly engaged their family law solicitors who were familiar with the dynamics of the family law case. However, it was submitted that as the solicitor with carriage of the matter was “unavailable on the day” counsel from Brisbane who has also been briefed in current contravention proceedings in the Federal Circuit Court was engaged. This course, it was suggested, was an “appropriate option, more so than a local agent”[29].
[29] Para [32] submissions for the respondents.
[53] The legal question was a simple one…the effect of section 22. The duty lawyer, who had a number of people to see on that busy call over day, was able to identify the issue and advise the applicant accordingly. The intricacies of family dynamics and current hostile family law litigation played no part in the section 22 issue. If they were somehow relevant, the court has been largely left in the dark. Briefing counsel was excessive in my view.
[54] At the conclusion of submissions on 16 December 2015, I requested counsel to seek instructions as to whether his solicitors warned the applicant that they would be seeking costs if an appearance was required in court that day. In response, counsel said they had not because of a range of factors including the limited timeframe, the history of conflict and current hostility between the parties, and a “demonstrated lack of responsiveness from [the applicant] in past and recent dealings”[30]. The solicitors were instructed on Sunday 13 December 2015 and they had not received one of the applications until 5.30pm Monday 14th [31].
[30] Para [31] submissions for the respondents.
[31] Para [30] submissions for the respondents.
[55] If the applicant had not responded in recent dealings as suggested, there may well be reasons for that in the context of significant and hostile family law litigation and a current domestic violence order where she is the respondent. The history of conflict and hostility is between the litigants, not the solicitors.
[56] In any event, in my view, although the timeframe was tight, the respondents’ solicitors should have put the applicant on notice that they would agitate section 22 to have the applications dismissed and then seek “indemnity” costs if they had to attend court. The applicant, who, to the knowledge of the respondents’ solicitors[32] was not legally represented in this “no costs” jurisdiction, would then have been in a position to make a decision. She was not given that opportunity. Once advised by the duty lawyer on 16 December 2015, she sought to withdraw forthwith.
[32] See para [31] of counsel’s submissions “[The solicitors] did not attempt to correspond with [the applicant] (she appearing to be unrepresented in these proceedings) …”.
[57] This court should exercise its discretion to award costs in an amount that is appropriate having regard to the competing factors outlined. In my view the respondents’ solicitors should be entitled to some costs the quantum of which should be balanced having regard to the failure of the applicant to properly consider commencing these proceedings naming her children as the aggrieved and in the context of other bitter litigation as against her not being warned of a costs claim.
[58] Part 2 Schedule 1 of the rules provides a scale of costs. Costs are calculated on a quarter hourly basis: item 3. While there are two applications, I will treat this as one matter as the same point was litigated in respect of both.
[59] Items 13, 14 & 15 in Part 2 relate to court appearances. Having found that briefing counsel from Brisbane was excessive, Item 13 is the appropriate item in this case. It provides:
13 Attendance in a DFVP court by a solicitor who
appears without a barrister—for each quarter-hour . . 54.50
[60] Counsel was in attendance for 7 hours without a solicitor (9 am to 4 pm). At $54.50 per quarter hour (GST incl), this totals $1526.00 which is the maximum amount allowed under this item. Given the straight forward submissions on section 22 and the early termination of these applications on the first court appearance, there should be no additional allowance for a solicitor’s “care and conduct” under Item 1.
[61] Costs in the scale can be reduced pursuant to section 1(3) in Part 1 Schedule 2:
1 Costs allowed for counsel and solicitor or clerk of the
DFVP court
…
(3) A court may direct that costs to be allowed for counsel or a
solicitor acting as advocate are to be less than the costs set out
in part 2.
[62] I make the following orders:
·The applicant’s oral application to withdraw her applications is dismissed.
·The original applications filed 7 December 2015 are dismissed.
·The applicant should bear half of the costs. I order the applicant pay the respondents’ costs in the amount of $763.