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KBE v Queensland Police Service QDC 326
DISTRICT COURT OF QUEENSLAND
KBE v Queensland Police Service  QDC 326
QUEENSLAND POLICE SERVICE
D145 of 2017
Costs on s 222 Justices Act 1886 (Qld) Appeal
Southport Magistrates Court
25 September 2017 (delivered ex tempore
23 August 2017
DOMESTIC VIOLENCE – COSTS FOR APPEAL – Where appellant successfully appealed against the making of a temporary domestic violence protection order made in the Southport Magistrates Court – whether respondent should be ordered to pay appellant’s costs of the filing fee.
Domestic and Family Violence Protection Act 2012 (Qld), ss 3, 4 , 42, 44, 47, 142, 157
Uniform Civil Procedure Rules 1999 (Qld), ch 17A, r 681
Supreme Court Act 1970 (NSW), s 69
Justice and Other Legislation Amendment Act 2013 (Qld)
FCA v Commissioner of Queensland Police Service  QDC 46, considered
GKE v EUT  QDC 248, considered
Oshlack v Richmond River Council  193 CLR 72, considered
Queensland Police Service Legal Unit for the respondent
KBE, self-represented for the appellant
- On 23 August 2017, I heard an appeal by KBE against an order made by the learned Magistrate in the Southport Magistrates Court on 13 April 2017, at which time I set aside a temporary domestic violence protection order that had been issued against him under s 44 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”).
- In my analysis setting out why the order should be set aside, I reached the view that unfortunately, through no fault of the learned Magistrate, he had decided the application in the first instance on the basis that the appellant had been served. This meant that the Magistrate proceeded under s 45 of the Act, as opposed to s 47 of the Act. Pursuant to s 47 of the Act, a temporary protection order can only be made if the Court is satisfied that the making of the temporary protection order, despite the respondent having not been served with the application, is “necessary or desirable” to protect the aggrieved or another person named in the application from domestic violence. No such analysis was undertaken by the Magistrate in first instance.
- Upon finding the error, I set aside the order and reconsidered the evidence. In the resolve I did not consider that the order was necessary or desirable to protect the aggrieved. The matter was remitted back to the Magistrates Court for hearing.
- Following the making of these orders, the appellant submitted that I ought to make a further order that the respondent pay the costs of his filing fee of $1,200 (a copy of the receipt was made exhibit 1). I then made directions as to the filing of written submissions in relation to costs. I subsequently received and have considered such written submissions from both the appellant and Mr O'Brien on behalf of the respondent. I am grateful to both Mr O'Brien and the appellant for their careful consideration of this issue.
Relevant legal principles
- I want to touch briefly on the power to order costs on this appeal.
- Section 157 of the Act provides for costs generally. However, as the respondent concedes that section does not apply to appellate proceedings. Section 142 of the Act provides that the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) apply to an appeal under this Act.
- Chapter 17A of the UCPR deals with costs. Rule 681 of the UCPR relevantly provides that:
681General rule about costs
- (1)Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.
- The respondent referred to and relied on the High Court decision of Oshlack v Richmond River Council  193 CLR 72, which considered the operation of the discretion to award costs in s 69 of the Supreme Court Act 1970 (NSW) using language similar to r 681 of the UCPR. The respondent submitted that there was no error in exercising the discretion not to award costs against an unsuccessful respondent, because the original application was in the public interest.
- There are a few decisions in the District Court that have considered the issue of costs on such appeals. These include GKE v EUT  QDC 248 at  and also FCA v Commissioner of Queensland Police Service  QDC 46 at .
- In GKE, McGill SC DCJ considered that chapter 17A of the UCPR was not applicable by virtue of s 142 of the then current section of the Act. Likewise, Kingham DCJ (as she then was) in FCA considered the award of costs under a regulation which was referred to in the former s 142. At the time of both of these decisions, s 142 of the Act provided:
142Application of Uniform Civil Procedure Rules
- (2)The Uniform Civil Procedure Rules 1999 apply in relation to a proceeding under this Act only to the extent that –
- this Act expressly states that a rule applies; and
- the application of the rule is not inconsistent with this Act.
- (3)The following provisions of the Uniform Civil Procedure Rules 1999 apply in relation to a proceeding under this Act –
- chapter 1;
- rules 8, 13, 32, 94, 95, 100, 102, 103, 106, 109, 110, 112, 116, 117, 120, 121 and 122;
- chapter 4, parts 6 and 7;
- chapter 11, part 4, other than rules 417, 418 and 419;
- chapter 18;
- rule 971 to the extent it relates to a filing fee for an appeal;
- any other provision prescribed under a regulation.
- Section 142 was amended by virtue of the Justice and Other Legislation Amendment Act 2013 (Qld) which came into force on 28 February 2015.
- Section 142 of the Act now provides:
142Procedure for proceeding under this Act
- (1)The Domestic and Family Violence Protection Rules made under the Magistrates Courts Act 1921, section 57C apply for-
- a proceeding in a court under this Act; or
- the registry of a court in relation to a proceeding under this Act.
- (2)The Uniform Civil Procedure Rules 1999 apply to an appeal under this Act.
- (3)To remove any doubt, it is declared that the Childrens Court Rules 1997 and the Uniform Civil Procedure Rules 1999 do not apply to a proceeding in a court under this Act.
- In my view, it is certainly in the public interest for police to be able to apply for temporary or final protection orders. The preamble to the Act provides that “Living free from violence is a human right and fundamental social value” and that “Domestic violence is a violation of human rights that is not acceptable in any community”.
- Section 3 of the Act sets out the main objectives of the Act, which includes relevantly:
- (1)The main objects of this Act are –
- to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives; and
- to prevent or reduce domestic violence and the exposure of children to domestic violence…
- (2)The objectives are to be achieved mainly by
- (b)giving police particular powers to respond to domestic violence, including the power to issue a police protection notice; and
- (c)imposing consequences for contravening a domestic violence order or police protection notice, in particular, liability for the commission of an offence.
- Further, s 4 of the Act sets out the principles for administering the Act. Relevantly, it provides that:
4 Principles for administering Act
- (1)This Act is to be administered under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.
- Costs are not awarded to punish an unsuccessful party, but ordinarily, to indemnify a successful party. In this case, for reasons that I am unable to discern, a hearing was conducted by the Magistrate on the basis that the appellant had been served with the application for a temporary protection order when, at the time, he had in fact not been. I accept that police have a very difficult job to do, and, for reasons that are not clear, there seems to have been a miscommunication or lack of clarification before the learned Magistrate. I do not consider, based on the material before me, that there was any misconduct on behalf of the respondent. But, in my view, there is a public interest in ensuring that careful and accurate submissions are made before a Magistrate when applications of this kind are made.
- I consider in the unusual circumstance of this case it is appropriate that the respondent pay the appellant’s costs of the filing fee fixed in the sum of $1,200.
- I do not and am not prepared to determine that on appeals of this nature, costs will ordinarily follow the event. It is not a matter that I need to determine. But, in the present case, I consider that in the exercise of my discretion to award costs, the successful appellant should have his filing fee paid.
- I therefore order that:
- The respondent pay the appellant’s costs of the appeal, fixed in the sum of $1,200.
- Published Case Name:
KBE v Queensland Police Service
- Shortened Case Name:
KBE v Queensland Police Service
 QDC 326
25 Sep 2017