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HZA v ZHA[2018] QDC 125

DISTRICT COURT OF QUEENSLAND

CITATION:

HZA v ZHA [2018] QDC 125

PARTIES:

HZA

(appellant)

v

ZHA

(respondent)

FILE NO:

1199/17

DIVISION:

Civil

PROCEEDING:

Appeal – Costs Application

ORIGINATING COURT:

Holland Park Magistrates Court

DELIVERED ON:

3 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

5 June 2018

JUDGE:

Devereaux SC DCJ

ORDERS:

  1. The respondent pay the appellant’s costs of the appeal fixed at $10,000.00.
  2. The respondent be granted an indemnity certificate in respect of the appeal under s 15(2) of the Appeal Costs Fund Act 1973.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT – COSTS – where domestic violence – where a protection order was set aside – where the successful appellant seeks costs – whether s 157 of the Domestic and Family Violence Protection Act 2012 is relevant to the discretion to order costs – whether an indemnity certificate should be granted to the respondent.

Appeal Costs Fund Act 1973 (Qld), s 15(2)

Domestic and Family Violence Protection Act 2012 (Qld), s 142, s 157, s 157(2), s 169

Domestic and Family Violence Protection Rules 2014 (Qld), r 3, r 51, r 52

Justice and Other Legislation Amendment Act 2013 (Qld), s 67

Uniform Civil Procedure Rules 1999 (Qld), r 681

GKE v EUT [2014] QDC 248, considered.

COUNSEL:

K Hillard for the appellant

S Hartwell for the respondent

SOLICITORS:

Li Lawyers for the appellant

Tang Lawyers for the respondent

  1. [1]
    On 5 June 2018, I allowed H’s appeal, set aside the order made in the Magistrates Court under the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) and remitted the matter for further hearing.  He seeks costs of the appeal.  I have received written submissions from both parties.  For the reasons that follow I am satisfied I should order the respondent to pay the appellant’s costs of the appeal.  The respondent seeks an order under the Appeal Costs Fund Act 1973 (Qld).  I am persuaded that order should be made.
  1. [2]
    The powers of the appeal court do not expressly include the powers to award costs:

169 Powers of appellate court

  1. (1)
    In deciding an appeal, the appellate court may—
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    vary the decision appealed against; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision appealed against and remit the matter to the court that made the decision.
  1. (2)
    The decision of the appellate court upon an appeal shall be final and conclusive.
  1. [3]
    The only provision directly governing costs in the Act is s 157. It falls within Part 5 – Court Proceedings, Division 3 – Other powers of court:

157 Costs

  1. (1)
    Each party to a proceeding for an application under this Act must bear the party’s own costs for the proceeding.
  1. (2)
    However, the court may award costs against a party who makes an application that the court hears and decides to dismiss on the grounds that the application is malicious, deliberately false, frivolous or vexatious.
  1. (3)
    In this section-

party includes an aggrieved.

  1. [4]
    The Domestic and Family Violence Protection Rules 2014 (Qld) (“the Rules”) commenced on 28 February 2015.  The Rules do not apply to an appeal under the Act:  r 3.  Part 7 of the Rules “explains how costs are to be assessed if a DFVP court[1]awards costs against a party under the DFVP Act, section 157(2)”: r 51.  Rule 52 provides the court may fix the costs or order that they be assessed on the scale set out in schedule 1 to the Rules, which is based on the Magistrates Court scale.
  1. [5]
    Clearly, s 157 of the Act and Part 7 of the Rules do not apply to an appeal.
  1. [6]
    Section 142 of the Act, which falls within Part 5 – Court Proceedings, Division 2 – Practice and Procedure, provides:

Procedure for proceeding under this Act

  1. (1)
    The Domestic and Family Violence Protection Rules made under the Magistrates Courts Act 1921, section 57C apply for—
  1. (a)
    a proceeding in a court under this Act; or
  1. (b)
    the registry of a court in relation to a proceeding under this Act.
  1. (2)
    The Uniform Civil Procedure Rules 1999 apply to an appeal under this Act.
  1. (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.
  1. [7]
    The appellants submits that the effect of s 142 is to make the costs provisions in the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) applicable to appeals under the Act. 
  1. [8]
    The present form of s 142 was introduced by the Justice and Other Legislation Amendment Act 2013 s 67, which was entitled “Replacement of s 142 (Application of Uniform Civil Procedure Rules 1999).”  It took effect on 28 February 2015.  Under the previous iteration of s 142, a rule of the UCPR applied only if the Act expressly so stated.  The list of applicable rules included Chapter 18 of the UCPR (Appellate proceedings) but not, as McGill SC DCJ noted in GKE v EUT [2014] QDC 248, Chapter 17A (Costs).  His Honour said, “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.”[2]His Honour considered that s 15 of the Civil Proceedings Act 2011 (a court may award costs in all proceedings unless otherwise provided) was likely to apply but that the discretion to award costs 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 the light of that legislative background.”[3]

  1. [9]
    These remarks have been adopted and followed in several cases[4]but in my respectful opinion there is no longer any reason to consider that the discretion to award costs of an appeal is to be exercised with s 157 in mind.  In combination, the present form of s 142 and Part 7 of the Rules make plain that the costs regime which applies to applications heard in the Magistrates Court does not apply to appeals heard in the District Court.  The UCPR apply to appeals without the omission of Chapter 17A.
  1. [10]
    UCPR r 681 provides that costs of a proceeding are in the discretion of the court but follow the event, unless the court orders otherwise. Relevant matters to the exercise of discretion might include the public interest nature of a proceeding under the Act, particularly where a police officer acts under s 100 of the Act.[5]&The preamble to the Act, its main objects[6]and the principles to be applied in administering the Act[7]focus on the safety, protection and wellbeing of people who fear or experience domestic violence, with a deliberate engagement of the criminal law.  The default period of an order is now five years.[8]A respondent who contravenes an order is liable to 120 penalty units or three years imprisonment.[9]Costs are awarded not to punish an unsuccessful party but, ordinarily, to indemnify a successful party. 
  1. [11]
    I allowed the appeal because I was satisfied the appellant had not received procedural fairness. A number of events and decisions caused that result but some of them lay at his feet. The appellant presented to the hearing without legal representation and so was required to conduct the hearing for himself. His affidavit did not address in detail the allegations made against him. I do not accept the appellant’s submission that the procedural fairness ground ought to have been conceded by the respondent. I accept the submission of the respondent that her defence of the decision was not without merit. The respondent did not cause the circumstances which caused the hearing to miscarry. These features are not uncommon. On balance, I consider the appellant should have his costs of the appeal subject to the following.
  1. [12]
    The appellant’s solicitor has filed an affidavit setting out costs incurred by the appellant. They include invoices which add up to $35,132.28 from the appellant’s previous solicitor for services provided from 10 March 2017 to 25 July 2017. Then there is an invoice for $3,115.20 for an interpreter for two days at the hearing of the appeal; counsel’s fees in 2017, $2,988.70, and fixed fee invoices from both solicitor and counsel, $6,600 and disbursements. The total legal costs for the appellant are, therefore, said to be $54,627.48. Despite this, the appellant does not seek an order for costs to be assessed but seeks costs fixed at $10,000.
  1. [13]
    Without passing judgment on the invoices, particularly those of the appellant’s former solicitor, having perused the invoices of the appellant’s counsel and present solicitors, I am satisfied such an order would be appropriate. The hearing was set for two days. The record from the Magistrates Court was substantial and the parties prepared more affidavits after another judge gave directions in February this year. The amount sought and ordered is peculiar to this proceeding.
  1. [14]
    The respondent seeks, in the event of a costs order being made against her, the grant of an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld).  Section 15(2) of that Act provides:

“Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

  1. [15]
    I am satisfied the error which grounded the appeal was an error of law and that there is no matter telling against the exercise of discretion in favour of a grant of indemnity to the respondent.
  1. [16]
    I order:
  1. The respondent pay the appellant’s costs of the appeal fixed at $10,000.00.
  2. The respondent be granted an indemnity certificate in respect of the appeal under s 15(2) of the Appeal Costs Fund Act 1973.

Footnotes

[1] Schedule 2 of the Rules defines a DFVP court by reference to s 6 of the Act, which provides:

6 Meaning of court

Court means—

  1. (a)
    if an application is made to a Magistrates Court—the Magistrates Court; or
  1. (b)
    if an application is made to a magistrate—the magistrate; or
  1. (c)
    if a court convicts a person of a domestic violence offence—the court that convicts the person; or
  1. (d)
    if the Childrens Court is hearing a child protection proceeding—the Childrens Court.

[2] [2014] QDC 248 at [68].

[3] [2014] QDC 248 at [69].

[4] S v T [2018] QDC 49; Z v Z [2016] QDC 328.

[5] See KBE v Queensland Police Service [2017] QDC 326; BLJ v QLB & Another [2018] QDC 14.

[6] The Act, s 3.

[7] The Act, s 4.

[8] The Act, s 97.

[9] The Act, s 177(2)(a) provides that “if, within 5 years before the contravention, the respondent has been previously convicted of a domestic violence offence—240 penalty units or 5 years imprisonment”.

Close

Editorial Notes

  • Published Case Name:

    HZA v ZHA

  • Shortened Case Name:

    HZA v ZHA

  • MNC:

    [2018] QDC 125

  • Court:

    QDC

  • Judge(s):

    Devereaux DCJ

  • Date:

    03 Jul 2018

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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