DISTRICT COURT OF QUEENSLAND
CITATION:
MNT v MEE (No 2) [2020] QDC 100
PARTIES:
MNT
v
MEE
FILE NO/S:
3759/19
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court Ipswich
DELIVERED ON:
29 May 2020
DELIVERED AT:
Beenleigh
HEARING DATE:
On the papers
JUDGES:
Byrne QC DCJ
ORDER:
1. The appellant pay the respondent’s costs of and incidental to the appeal on the standard basis, as agreed or assessed.
CATCHWORDS:
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – COSTS – where the appeal was brought pursuant to section 164(a) of the Domestic and Family Violence Protection Act 2012 (Qld) – whether there is power to order costs – whether the respondent is entitled to the whole of the costs on an indemnity basis
Acts Interpretation Act 1954, s 36, Sch 1,
Domestic and Family Violence Protection Rules, r 3
Domestic and Family Violence Protection Act 2012, s 142, s 157 s 164
Uniform Civil Procedure Rules 1999, r 681, r 766, r 785MNT v MEE [2020] QDC 126
Re Feez Ruthning’s Bill of Costs (1989) 1 Qd R 55
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
AVI v SLA (No 2) [2019] QDC 207
HZA v ZHA [2018] QDC 125
John Urquhart t/as Hart renovations v Partington and Anor [2016] QCA 199
Oshlack v Richmond River Council (1998) 193 CLR 72
Wright v KB Nut Holdings Pty Ltd [2013] QCA 153
Johnston & Anor v Herrod & Ors [2012] QCA 361COUNSEL:
Mr S. Trewavas for the Appellant
Mr S. Kissick for the RespondentSOLICITORS: Lexsolve Lawyers for the Appellant
Hall Payne Lawyers for the Respondent
Background
MNT unsuccessfully appealed against the making of a Protection Order pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (DFVP Act).[1] Although error was found in the original reasons, the respondent was wholly successful in the appeal and is seeking her costs of that appeal.
The power to order costs
A court must be empowered by statute to award costs before it can do so.[2] It is therefore necessary to identify a statutory power if the application for costs is to succeed.
[2]Re Feez Ruthning’s Bill of Costs (1989) 1 Qd R 55 per McPherson J at 90; Dal Pont, G. “Law of Costs” 4th Ed LexisNexis Butterworths, 2018 at [6.2]-[6.4].
Section 157 of the DFVP Act provides:
“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.”
The usual rule prohibiting costs in s 157(1), and the exception in s 157(2) applies only to applications. An appeal under s 164 is not an…
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- AGLC
- MNT v MEE (No 2) [2020] QDC 100
- Case
- [2020] QDC 100
- Decision Date
CaseChat Overview and Summary
The court began by examining the relevant legislation and case law. It noted that the awarding of costs in an appeal to this Court from the Magistrates Court is not governed by rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) but rather rule 766. The court accepted that the principle that the successful party is usually awarded costs in its favour remains applicable. In considering the award of costs, the court referred to the oft-quoted passage from Oshlack v Richmond River Council, which states that costs are not awarded to punish an unsuccessful party but to indemnify the successful party. The court found that in the usual case, the award of costs will only partly cover the actual costs incurred, and costs are not ordinarily ordered on an indemnity basis unless there is some unusual circumstance or unreasonable conduct on the part of the unsuccessful party.
Upon reviewing the facts of the case, the court found that the respondent was wholly successful but there was no unreasonable conduct or relevant delinquency on the part of the appellant in the bringing of or conduct of the appeal. The court determined that on the whole of the evidence, the orders made were appropriate, and the appellant could not be criticised for bringing an appeal where error was established. Therefore, the court decided that the appellant should pay the respondent's costs of and incidental to the appeal on the standard basis, as agreed or assessed.
ORDERS:
1. The appellant pay the respondent's costs of and incidental to the appeal on the standard basis, as agreed or assessed.
Orders
Orders of the court
1. The appellant pay the respondent’s costs of and incidental to the appeal on the standard basis, as agreed or assessed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In the alternative it is submitted that where a party is seeking to have costs fixed by the Court, that party should usually comply with Practice Direction 3 of 2007, and this has not been done in this instance. Further it is said that in the absence of an affidavit setting out the basis of the costs, their reasonableness cannot be determined. On that basis it is submitted that if costs are to be ordered, they should be ordered on the standard basis.Consideration The awarding of costs in an appeal to this Court from the Magistrates Court is not governed by rule 681 of the UCPR but rather rule 766.[5] Rule 766 is made applicable to an appeal to the District Court by virtue of rule 785(1).[5] John Urquhart t/as Hart renovations v Partington and Anor [2016] QCA 199, [8]. Nonetheless, the principle that the successful party is usually awarded costs in its favour remains applicable.[6] Further, I accept that the considerations helpfully summarised by Smith DCJA in AVI v SLA (No 2) at [12]-[15] are applicable in an appeal to this Court. I adopt them without repeating them.[6] John Urquhart t/as Hart renovations v Partington and Anor, ibid. In an oft-quoted passage, McHugh J in Oshlack v Richmond River Council said:“Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.” (footnote omitted) Although not attributed directly to that source, it is likely that Devereaux SC DCJ had his Honour’s words in mind when he referred to indemnifying the successful party. But it is clear that, in the usual case, the award of costs will only partly cover the actual costs incurred. Costs are not ordinarily ordered on an indemnity basis unless there is some unusual circumstance or unreasonable conduct on the part of the unsuccessful party.[7] This was referred to as “relevant delinquency” by Gaudron and Gummow JJ in Oshlack at [44]. Accordingly, McHugh J must be understood to have referred to the concept of an indemnity as a partial indemnity only.[7] Wright v KB Nut Holdings Pty Ltd [2013] QCA 153. See also Johnston & Anor v Herrod & Ors [2012] QCA 361, [6]-[11] and cases referred to in each case. Further, a close study of the judgment in HZA v ZHA reveals that Devereaux SC DCJ did not in fact award indemnity costs. His Honour decided to award a fixed amount which was substantially less than that claimed on an indemnity basis. In the present case, the respondent was wholly successful, but there was no unreasonable conduct or relevant delinquency on the part of the appellant in the bringing of or conduct of the appeal. In fact, I found there had been error but in effect determined that on the whole of the evidence the orders made were appropriate. The appellant can’t be criticised for bringing an appeal where error is established.