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
COUNSEL: C Minnery for the appellant
The first respondent was self-representedThe second respondent was excused from appearing
SOLICITORS: Life Law Solutions Solicitors for the appellant
The first respondent was self-representedThe second respondent was excused from appearing
Introduction
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.
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
The Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) provides at s. 142(2)…
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- AGLC
- RIS v DOL (No. 2) [2021] QDC 157
- Case
- [2021] QDC 157
- Decision Date
CaseChat Overview and Summary
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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