LAP v HBY[2021] QCA 123

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  On 26 March 2021 I ordered that the appellant’s appeal be struck out upon the ground that the Court of Appeal lacked jurisdiction to hear it.  The first respondent applied for an order that the appellant pay the first respondent’s costs of the proceeding to be assessed on the indemnity basis.  Upon application by the appellant I granted her leave to make submissions in writing in relation to the appropriate order as to costs, including the basis of assessment.
2. [2]
   I do not accept the appellant’s submission that there is a doubt whether the Court of Appeal has power to award costs.  The appellant refers to s 157 of the Domestic and Family Violence Protection Act 2012.  Under that section, each party to a proceeding for an application under that Act must bear the party’s own costs for the proceeding (s 157(1)), subject to the exception that the court may award costs against a party who makes an application that the court hears and decides to dismiss on the ground that the application is malicious, deliberately false, frivolous or vexatious (s 157(2)).
3. [3]
   Section 157 does not apply in the present context of an appeal to the Court of Appeal from a decision by the District Court in its appellate jurisdiction under the Domestic and Family Violence Protection Act.  In such a case, the Court of Appeal is not a “court” in relation to a “proceeding for an application” under that Act.  Jurisdiction to hear and decide an application made to a “court” under that Act is conferred by s 136.  Section 6 defines “court” in terms that comprehend only the Magistrates Court, a Magistrate, a court that convicts a person of a domestic violence offence, and the Childrens Court.  The Court of Appeal is, however, an “appellate court”, as defined in the schedule to the Act, in relation to a decision made by the District Court, the Supreme Court, or the Childrens Court constituted by a District Court judge.
4. [4]
   Consistently with those provisions, s 142 of the Act provides that the Uniform Civil Procedure Rules 1999 apply “to an appeal under this Act” (s 142(2)) although those rules do not apply to “a proceeding in a court under this Act” (s 142(3) and see s 142(1)).  Section 15 of the Civil Proceedings Act 2011 (Qld) empowers a court (which includes the Court of Appeal) to “award costs in all proceedings unless otherwise provided”, and rr 681(1) and 766(1)(d) of the Uniform Civil Procedure Rules also confer upon the Court of Appeal power to award costs in a proceeding before it.
5. [5]
   The appellant refers to GKE v EUT [2014] QDC 248, in which McGill DCJ expressed the tentative conclusion that the power of the District Court to award costs in an appeal under the Civil Proceedings Act should be exercised in light of the Domestic and Family Violence Protection Act and it was not “simply a matter of saying that costs should follow the event”.  That tentative conclusion followed upon an observation that Chapter 17A of the Uniform Civil Procedure Rules was not made applicable in an appeal to the District Court by s 142 of the Domestic and Family Violence Protection Act.  After that decision s 142 was amended on 28 February 2015.^[1]  Under the current section, the Uniform Civil Procedure Rules apply in an appeal to the Court of Appeal.
6. [6]
   Chapter 17A of the Uniform Civil Procedure Rules includes r 681(1), which provides that the 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.  In Oshlack v Richmond River Council (1998) 193 CLR 72 at 97, McHugh J explained that the principle embodied in a rule of this kind “is grounded in reasons of fairness and policy”, and that “fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation”.  The same approach is generally adopted under r 766(1)(d), even though it merely empowers the Court of Appeal to make the order as to the whole or part of the costs of an appeal it considers appropriate: see Wagners Cement Pty Ltd & Anor v Boral Resources (Qld) Pty Limited & Anor [2021] QCA 79 at [14].
7. [7]
   The appellant seeks an order that each party pay that party’s own costs.  The appellant argues that there was no “event” because the appeal was not heard.  The relevant event was that the appeal was struck out for want of jurisdiction.  The appellant argues that the case falls within the limited exceptions to the usual order of costs following the event because there was conduct by the respondent disentitling him to the beneficial exercise of the discretion or there were special or exceptional circumstances, as adverted to by McHugh J in Oshlack v Richmond River Council.  The appellant argues that her appeal was meritorious, there is a public interest in domestic violence, the first respondent had engaged in protracted legal proceedings and court processes against the appellant for three and a half years, the first respondent had previously pleaded guilty to assault occasionally bodily harm whilst armed, the complainant was re-traumatised on each of the numerous occasions she was required to attend Court, and the decision in this matter created a precedent.
8. [8]
   The decision to strike out the appeal did not create a precedent.  The absence of jurisdiction in the Court to hear the appellant’s appeal had been established by previous decisions.  In one of those decisions the appellant herself succeeded in having an appeal struck out.^[2]  It was not in the public interest for the appellant to commence proceedings in the Court of Appeal when it had previously been authoritatively decided that the Court lacked jurisdiction to hear and determine proceedings of the same character and the appellant could not articulate a persuasive argument to the contrary.  The commencement of such proceedings could not be justified by her opponent’s conduct, or any adverse consequences for the appellant of such conduct, in previous litigation.  The matters upon which the applicant relies could not reasonably be regarded as falling within the limited exceptions to the usual order of costs following the event.
9. [9]
   The discretion to order that costs be assessed on the indemnity basis may be exercised in circumstances such as the present, in which the appellant, if properly advised, should have appreciated that the Court lacked jurisdiction to hear her proposed appeal.  The applicant, who represented herself, had argued, however, that the previous decisions that the Court lacked jurisdiction in similar cases were distinguishable.  Although I consider the argument lacked legal merit, I am not prepared to find that the appellant in fact appreciated as much.
10. [10]
    I decline to exercise the discretion to order that the costs to be ordered against her should be assessed on the indemnity basis.  The second respondent, a police officer, does not seek costs and no costs are sought against her.
11. [11]
    I order that the appellant pay the first respondent’s costs of the appeal, including the costs of and incidental to the hearing on 26 March 2021.