Z v Z
[2016] QDC 328
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Z v Z[2016] QDC 328
- Add to List
Z v Z[2016] QDC 328
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: |
|
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”).
- [2]The appeal was unsuccessful.
- [3]The Respondent now seeks costs in the sum of $4,400.00, being the cost of counsel for preparation and appearance at the appeal.
- [4]At the conclusion of the appeal I invited counsel to make submissions on whether there could or should be an order as to costs.
- [5]I have been referred to decided cases as to the issue of costs on an appeal decided pursuant to the Act.
- [6]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.
- [7]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 of the Act.
[69]On the whole and without the benefit of proper legal argument on the point on behalf of the respondent, I do not consider the Act does impliedly exclude the power in the Civil Proceedings Act, but I consider that that power should be exercised having regard to the specific provisions which do appear in the Act in s 157. I do not mean that that section is determinative of the question of costs on appeal, but the power to award costs should be exercised in light of that legislative background. It follows that I do not think it is simply a matter of saying that costs should follow the event, and in all the circumstances I do not consider that in this case it would be appropriate to make an order for costs in favour of the appellant notwithstanding his success on the appeal.
- [8]I agree with McGill SC DCJ that if there is a power to order costs on appeal under the Act it should be exercised in light of s 157 and not simply that costs should follow the event.
- [9]The Respondent here argues the appeal was frivolous because it pointed to no proper error of law. Many appeals are dismissed on the basis that the Judge hearing the appeal is not satisfied that there has been an error of law on the part of the magistrate but not all are frivolous.
- [10]The Respondent submits that the argument advanced in his outline should have made it clear that the prospects of success of the appeal were non-existent.
- [11]Bear in mind, however, that in this case the Appellant was represented by counsel acting pro bono who was briefed the night before the hearing of the appeal.
- [12]The Respondent also argues that the appeal was malicious and vexatious insofar as it amounted to an abuse of process. The Respondent quotes Rogers v R (1994) 123 ALR 417 at 419 where the High Court defined the term of a “abuse of process” as including but not confined to “use of the court processes for some ulterior purpose or purposes in that it is not the party’s genuine purpose to obtain the relief sought or to cause vexation or oppression”.
- [13]Apart from pointing out that there had been no other incident of alleged domestic violence since the application was dismissed in [redacted], counsel for the Respondent did not otherwise explain why the appeal was using the court processes for an ulterior purpose other than to obtain the relief sought or that they were used to cause vexation or oppression.
- [14]I am not prepared to make a finding that the appeal was malicious, deliberately false, frivolous or vexatious.
- [15]Accordingly, I make no order as to costs.