Z v Z

[2016] QDC 328

DISTRICT COURT OF QUEENSLAND

CITATION:

Z v Z [2016] QDC 328

PARTIES:

Z

(Appellant)

v

Z

(Respondent)

FILE NO/S:

BD 4419/2015

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Holland Park Magistrates Court

DELIVERED ON:

19 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2016

JUDGE:

Dick SC DCJ

ORDER: 

No order as to costs.1.     

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – POWER OF COURT – COSTS – where decision of Registrar was unsuccessfully appealed – where Respondent now seeks costs of the appeal – where the Respondent contends that the appeal was malicious and vexatious - where the Respondent contends that the appeal was frivolous because it pointed to no proper error of law

Domestic Family Violence Protection Act 2012 (Qld)

FCA v CMR of Queensland Police Service [2014] QDC 46

GKE v VEUT [2014] QDC 248

Rogers v R (1994) 123 ALR 417

COUNSEL:

Ms A Gage for the Appellant, Mr J Bunning for the Respondent

1. The Appellant appealed a decision from Judicial Registrar Kahlert made on [redacted] at the Holland Park Magistrates Court. The appeal was made pursuant to s 165 of the Domestic and Family Violence Protection Act 2012 (Qld) (“DFVPA”).

1. The appeal was unsuccessful. 

1. The Respondent now seeks costs in the sum of $4,400.00, being the cost of counsel for preparation and appearance at the appeal.

1. At the conclusion of the appeal I invited counsel to make submissions on whether there could or should be an order as to costs. 

1. I have been referred to decided cases as to the issue of costs on an appeal decided pursuant to the Act. 

1. The first is FCA v CMR of Queensland Police Service [2014] QDC 46. In that case Kingham DCJ awarded costs against the respondent but the case does not otherwise contain a discussion of the law applicable to costs on appeal.

1. The case of GKE v VEUT [2014] QDC 248, a decision of McGill SC DCJ, contains a discussion of costs on appeal from the Act at paragraphs [68]-[69] as follows:

[68] The Act provides in s 157 that each party to a proceeding for an application must bear the party’s own costs although the Court may award costs against a party who makes an application which was dismissed if the Court decides the application was malicious, deliberately false, frivolous or vexatious.  I would not make such a finding in relation to the respondent’s application in the present case.  It is not clear whether s 157 applies to an appeal; s 169 says nothing about costs and Chapter 17A is not made applicable by s 142 of the Act.  Section 15 of the Civil Proceedings Act 2011 gives a general power to award costs in all proceedings unless otherwise provided, and has not been expressly excluded by anything in the Act. There is no inherent power to award costs, but s 11 provides a statutory power unless it is impliedly excluded by the provisions…