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Queensland Judgments
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  • Unreported Judgment

WBI v HBY

 

[2020] QCA 65

SUPREME COURT OF QUEENSLAND

CITATION:

WBI v HBY & Anor [2020] QCA 65

PARTIES:

CONSTABLE WBI

(applicant)

v

HBY

(first respondent)

LAP

(second respondent)

FILE NO/S:

Appeal No 6713 of 2019

DC No 4040 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave to Appeal – Further Order

ORIGINATING COURT:

District Court at Brisbane – Unreported, 31 May 2019 (Koppenol DCJ)

DELIVERED ON:

7 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison and Mullins JJA and Lyons SJA

ORDER:

The applicant is to pay the first respondent’s costs of the application for leave to appeal on the standard basis to be assessed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the Court of Appeal ordered that the applicant’s application for leave to appeal be struck out for absence of jurisdiction – where no order was made as to the costs of that application – where, after publication of the Court’s reasons, the respondent sought to file, and subsequently filed, written submissions seeking orders that the applicant pay the first respondent’s costs of and incidental to the application – where the applicant filed submissions in response seeking that there be no order as to costs – whether costs should be awarded

COUNSEL:

P McCafferty QC for the applicant

G Page QC for the first respondent

The second respondent appeared on her own behalf

SOLICITORS:

Queensland Police Service Legal Unit for the applicant

PHV Law Solicitors and Consultants for the first respondent

The second respondent appeared on her own behalf

  1. [1]
    MORRISON JA:  I have read the reasons of Lyons SJA and agree with those reasons and the order her Honour proposes.
  2. [2]
    MULLINS JA:  I agree with Lyons SJA.
  3. [3]
    LYONS SJA:  On 17 October 2018 Magistrate Bradford Morgan made a seven year protection order against the first respondent in favour of the second respondent.
  4. [4]
    The first respondent appealed that decision to the District Court and the matter came before Koppenol DCJ for an interlocutory application on 31 May 2019.  Koppenol DCJ made orders that that the substantive appeal was to be heard afresh and in whole in the District Court.
  5. [5]
    That decision was then the subject of an application to this court for leave to appeal.  That application came before the court on 18 November 2019 and on 21 February 2020 the application for leave was stuck out for absence of jurisdiction given the requirements of s 169(2) of the Domestic Violence Family Protection Act 2012 (Qld).
  6. [6]
    No orders as to costs were made and the parties were given leave to file written submissions.
  7. [7]
    The first respondent argues that, as the applicant was totally unsuccessful given the finding by the Court that it lacked jurisdiction, the first respondent was unjustifiably bought before the Court and given the provisions of r 681, the first respondent should receive costs.  The first respondent argues that they informed the applicant on 6 November that he would seek his costs and made an offer that each party would pay their own costs if the applicant withdraw its appeal.  The application proceeded on 18 November 2019.
  8. [8]
    The applicant argues that the general rule should be departed from because of the conduct in the first respondent in obtaining the orders before the primary judge, which were referred to in the reasons of the Court of Appeal and in particular this court expressed concern as to whether the correct factual basis was identified to the District Court judge when the matter came before him on 31 May 2019.
  9. [9]
    Counsel therefore argues that the conduct is serious and is of such a nature that the general rule should be departed from.  In the circumstances, Counsel for the applicant argues that the appropriate order is that there should be no order as to costs.
  10. [10]
    The matter is currently listed for hearing before Judge Smith on 5 May 2020.
  11. [11]
    There is no doubt that pursuant to r 681 of the Uniform Civil Procedure Rules (UCPR), the general rule is that costs follow the event.  However, costs always remain in the discretion of the court and the application of the general rule is unless the court orders otherwise.
  12. [12]
    There can be no doubt that this court has raised some serious concerns in relation to the conduct of the hearing before the District Court judge.  However given the determination by this Court that the application should be struck out as this court does not have jurisdiction, the appropriate order in this case is that the first respondent’s costs of the application for leave to appeal should be paid by the applicant on the standard basis to be assessed.
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Editorial Notes

  • Published Case Name:

    WBI v HBY & Anor

  • Shortened Case Name:

    WBI v HBY

  • MNC:

    [2020] QCA 65

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Mullins JA, Lyons SJA

  • Date:

    07 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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