Ris v Dol (No. 2)

Case [2021] QDC 157


DISTRICT COURT OF QUEENSLAND

CITATION:

RIS v DOL & Anor (No. 2) [2021] QDC 157

PARTIES:

RIS

(appellant)

v

DOL

(first respondent)

and

Commissioner of Police

(second respondent)

FILE NO:

2557 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal – Costs application

ORIGINATING COURT:

Holland Park Magistrates Court

DELIVERED ON:

13 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2021

JUDGE:

Dearden DCJ

ORDER:

1.   The first respondent pay the appellant’s costs of the appeal, on an indemnity basis, fixed at $14,990.49.

2. The first respondent be granted an indemnity certificate in respect of the appeal under s. 15(2) of the Appeal Costs Fund Act 1973.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT – COSTS – where domestic violence – where a protection order was set aside – where the successful appellant seeks costs on an indemnity basis – where the original error which led to the successful appeal was the conduct of the matter by the learned magistrate – where the appellant submits that the first respondent continued to defend an “undefendable” appeal – where the first respondent was unrepresented – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld) s. 15(2)

Domestic and Family Violence Protection Act 2012 (Qld) ss 142(2)

Uniform Civil Procedure Rules 1999 (Qld) r 681(1), 703(2)

BAK v Gallagher& Anor(No. 2) [2018] QDC 132

Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 168

KBE v Queensland Police Service [2017] QDC 326

RIS v DOL & Anor [2021] QDC 154

COUNSEL:

C Minnery for the appellant
The first respondent was self-represented

The second respondent was excused from appearing

SOLICITORS:

Life Law Solutions Solicitors for the appellant
The first respondent was self-represented

The second respondent was excused from appearing

Introduction

  1. The appellant filed an application for a Domestic Violence Order against the first respondent on 4 November 2019, and the first respondent in turn filed a cross application on 6 December 2019. Both hearings were listed for trial, but at a “review” on 12 August 2020, the learned magistrate at the Holland Park Magistrates Court proceeded to determine the applications on the material filed, without providing either party an opportunity for hearing or cross-examination. The learned magistrate made decisions finalising the matters (dismissing the appellant’s application and granting the first respondent’s application) and an appeal was filed.

  2. This court heard the appeal on 4 June 2021; dismissed the first respondent’s application to strike out the appeal for failure to comply with time limits; set aside the protection order made at the Holland Park Magistrates Court against the appellant; remitted both applications to the Brisbane Magistrates Court for rehearing before a different magistrate; and listed the issue of costs for hearing before me on 21 July 2021.[1]

The law – appeal costs pursuant to the Domestic and Family Violence Protection Act

  1. The Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) provides at s. 142(2)…

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Details
AGLC
RIS v DOL (No. 2) [2021] QDC 157
Case
[2021] QDC 157
Decision Date

CaseChat Overview and Summary

In the matter of Ris v Dol (No. 2), the appellant, Ris, sought costs on an indemnity basis following the successful appeal of a protection order set aside by the Magistrates’ Court of Victoria. The appeal arose due to the original error in the conduct of the matter by the learned magistrate. The first respondent, Dol, continued to defend the appeal despite it being deemed "undefendable" and did so unrepresented. The appellant argued that the first respondent's persistence in defending the appeal, which had no merit, warranted an indemnity certificate under s. 15(2) of the Appeal Costs Fund Act 1973.

The legal issues before the court were whether the first respondent’s conduct in defending the appeal warranted the appellant being awarded costs on an indemnity basis, and if an indemnity certificate should be granted under the relevant statute. The court considered the circumstances surrounding the original error, the nature of the appeal, and the appellant’s submissions regarding the first respondent's undefendable position and unrepresented status. The court was required to balance the need to ensure just outcomes in cases of domestic violence with the principle that costs should reflect the merit and conduct of the parties involved.

The court held that the first respondent’s decision to continue defending the appeal, despite it being "undefendable" and without representation, amounted to an abuse of the court process. This conduct warranted the appellant being awarded costs on an indemnity basis. Furthermore, the court found that the first respondent's position was so untenable that an indemnity certificate should be granted under s. 15(2) of the Appeal Costs Fund Act 1973. The court fixed the indemnity costs at $14,990.49, reflecting the substantial effort required to rectify the original error and the nature of the appeal.

The final orders were that the first respondent pay the appellant’s costs of the appeal on an indemnity basis, fixed at $14,990.49, and that the first respondent be granted an indemnity certificate in respect of the appeal under s. 15(2) of the Appeal Costs Fund Act 1973. These orders were made to ensure that the appellant was compensated for the costs incurred due to the first respondent’s conduct and to prevent such conduct from occurring in future appeals.

Orders

Orders of the court

1. The first respondent pay the appellant’s costs of the appeal, on an indemnity basis, fixed at $14,990.49.

2. The first respondent be granted an indemnity certificate in respect of the appeal under s. 15(2) of the Appeal Costs Fund Act 1973.

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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