SLC v Queensland Police Service and SLC

[2023] QDC 78

DISTRICT COURT OF QUEENSLAND

CITATION:

SLC v Queensland Police Service and SLC [2023] QDC 78

PARTIES:

SLC

(appellant)

v

COMMISSIONER OF QUEENSLAND POLICE

(first respondent)

and
SLC

(second respondent)

FILE NO:

1017 of 20

DIVISION:

Civil

PROCEEDING:

s222 Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2021

JUDGE:

Clare SC DCJ

ORDER:

1.   No order as to costs in the appeal

2.   No order as to costs in the original proceeding

3.   Each party is to bear their own costs

CATCHWORDS:

PROTECTION ORDER – costs – where police applied for an order in favour of the sister, against her wishes – where the basis of the application was threats the respondent made to authorities – where no indication the aggrieved had  any experience or fear of domestic violence

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) ss 142, 157

Uniform Civil Procedure Rules r 682

CASES:

COUNSEL:

Mr S Richardson for the appellant
Mr I Fraser for the first respondent

Ms R Taylor for the second respondent

SOLICITORS:

Richardson McGhie for the appellant
QPS Legal for the respondent
Legal Aid Queensland for the second respondent

Introduction

1. On 9 March 2021 this court set aside a domestic violence order made by a Magistrate.  The only remaining issue was costs.  Written submissions on costs were received at the end of 2022 during long leave. 

2. The appellant contends the First Respondent should pay her costs of both the original proceedings and the appeal.  In addition, the Second Respondent who supported the appeal, seeks her appeal costs.  

Relevant legislation

1. Both the appeal and cost orders are entirely creatures of statute. The powers of the court are dependent upon the legislation. Appellate proceedings are governed by Division 5 of Part 5 of the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) and s 142(2) which adopts the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) for appeals. Different rules regulate the application for the protection order.[1] As for costs, provision is made in s 157 DFVPA and Chapter 17A of the UCPR.

   [1] Pursuant to the DFVPA s142 the Domestic And Family Violence Protection Rules regulate “ a proceeding in a court under this Act”. The Act distinguished between a court and an appellate court. The appellate court is defined in the dictionary as either the District or Supreme Court, where a “court” is defined by s6 to be the Magistrate, the Magistrates Court or the Children’s Court.

S 157 DFVPA

1. Where s 157 DFVPA applies, each party must bear their own costs, unless the application is dismissed on grounds that it is “malicious, deliberately false, frivolous or vexatious.”  There has been no finding that the present application was either “malicious, deliberately false, frivolous or vexatious.” Indeed I am satisfied that the pursuit of the application was none of those things. It follows if s 157 applied, there could be no order for costs in the instant.

2. S 157 is only directed at “an application under this Act”. The application for domestic violence order was brought under s 32 of the Act. Accordingly, s 57 applied to costs of the proceedings before the Magistrate. The appeal, on the other hand, was not an application but the exercise of a right under s 164 of the Act. The provision for a costs order under s 157 does not apply to a party’s costs in the appeal.

   UCPR

3. Chapter 17A of the UCPR which deals with costs, applies to “costs payable or to be assessed under an Act, these rules or an order of the court.”[2] R 681 establishes the general rule about costs,

   “Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event unless the court otherwise orders.”[3]   

   [2] Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r 678(1).

   [3] UCPR.

4. The appeal was successful.  As a general rule an order for the appellant’s costs of the appeal would follow, subject to the residual discretion.

   Costs in the Magistrates Court

5. In addition to the costs of the appeal, the appellant seeks her costs for the Magistrates Court. The District Court has no power to make such an order. Its powers conferred by s 169 of the DFVPA include the power to vary the original decision or substitute another. UCPR r 766 would permit the appeal court to substitute any order that the Magistrate may have made.[4] There is however no authority to substitute an order that would be beyond the power of the original court. Here, the Magistrate’s power to make a costs order was dependent on s 157 of the DFVPA. As this was not a malicious, deliberately false, frivolous or vexatious application, the discretion to make an order for costs in the Magistrates Court did not arise. 

   [4] UCPR r 766 confers on the Court of Appeal “ all the powers and duties of the court that made the decision appealed from”. Part 1 of Chapter 18 of the UCPR sets out procedures for appeals to the Court of Appeal. Part 3 is directed at appeals to the District Court. By virtue of r785 the Court of Appeal procedures apply to an appeal in the District Court, “with necessary changes”.       

   The application for costs of the appeal

6. This appeal ultimately turned on the meaning of domestic violence, specifically that part of the definition in s 8(1)(d) of the Act which requires “behaviour…towards another person that – …( d) is threatening.”   It appears the meaning of that provision had not previously been considered by a court.   On this appeal I  construed the provision to mean a threat made to the aggrieved, as distinct from a threat made about the aggrieved to another person.  There was no evidence that the appellant had ever made threats to the second respondent (whether directly or indirectly).  For that reason I found the commission of domestic violence was not proved.     

7. Nonetheless the evidence did prove the appellant posed a threat to the safety of the second respondent.  The appellant had been reporting her inclination to seriously harm the second respondent to other agencies over an extended period. A psychiatrist had notified police of the danger posed by the appellant.  When police investigated, the appellant matter–of–factly described to them her violent impulses towards the second respondent.  She had a concerning history of retaliation against others who upset her. 

8. The duties of the investigating police are set out in s 100 of the Act.  If an officer reasonably believed the appellant had committed domestic violence, the officer was required by s 100(2)  to consider whether it was necessary or desirable to, inter alia,  apply for a protection order.   The application for a protection order came after other attempts to alleviate the danger had failed.

9. I think it was not unreasonable for police to press the domestic violence order until a relevant ruling on the construction of s 8.  The appeal succeeded on the interpretation of a single judge of the District Court.  Another judge might have read the legislation differently. It is true the second respondent had opposed the protection order, but she was a vulnerable person and at risk of substantial harm from the appellant.  Police concern for the safety of the second respondent was well founded and other avenues for her protection had failed. 

10. The importance of public interest considerations under the Act is reflected in the narrow circumstances in which costs may be awarded against an applicant in the Magistrates Court [5] and the Act’s overriding principle that the safety and protection of people who fear or experience domestic violence are paramount.[6]   

    [5] DFVPA s157.

    [6] Ibid s 4. The second respondent did not fear domestic violence, but there was a live issue as to whether domestic violence had been committed.

11. There were strong public interest considerations in the determination of the present matter.  Notwithstanding the general rule that costs should be awarded to the successful litigant,  and notwithstanding this was a legally aided appeal, I am satisfied an order for costs should not be made.

    The Second Respondent

12. The second respondent  also seeks costs. She supported the appellant’s appeal.  She had objected to the separation from her sister from the very beginning.  She did not appear at the hearing before the Magistrate, but she had disavowed any need for a protection order at an earlier mention of the case.

13. The discretionary considerations that weighed most heavily in respect of the appellant, also apply to the second respondent.  I exercise my discretion to refuse costs.

    Conclusion

14. Each party is to bear their own costs. I make no order as to costs in the District Court or the Magistrates Court.