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BAK v Gallagher (No 2)[2018] QDC 132

BAK v Gallagher (No 2)[2018] QDC 132

DISTRICT COURT OF QUEENSLAND

CITATION:

BAK v Gallagher & Anor (No 2) [2018] QDC 132

PARTIES:

BAK

(appellant)

v

DEAN WILLIAM GALLAGHER

(first respondent)

and

LTM

(second respondent)

FILE NO/S:

D201 of 2017

DIVISION:

Appellate

PROCEEDING:

Application for costs

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

17 July 2018

DELIVERED AT:

Southport

HEARING DATE:

On the papers; appellant’s written submissions filed on 30 March 2018 and first respondent’s submissions filed on 30 April 2018.

JUDGE:

Muir DCJ

ORDER:

The first respondent pay the appellant’s costs of the appeal.

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 142 of the Domestic and Family Violence Protection Act 2012 (Qld) applies to costs on appeals under that Act – whether s 157 of the Domestic and Family Violence Protection 2012 (Qld) is relevant to the discretion to order costs on appeals under that Act – where the Uniform Civil Procedure Rules 1999 (Qld) applies such that costs follow the event unless court orders otherwise – whether court should order otherwise in matters of “public interest litigation”

LEGISLATION:

Appeal Costs Fund Act 1973 (Qld), s 21

Civil Proceedings Act 2011 (Qld)

Domestic and Family Violence Protection Act 1989 (Qld)

Domestic and Family Violence Protection Act 2012 (Qld), ss 3, 4, 6, 37, 142, 157, 164

Domestic and Family Violence Protection Bill 2011 (Qld)

Domestic and Family Violence Protection Rules 2014 (Qld)

Environmental Planning and Assessment Act 1979 (NSW)

Justice and Other Legislation Amendment Act 2013 (Qld), s 142,

Land and Environment Court Act 1979 (NSW), s 69

Magistrates Court Act 1921 (Qld)

Police Powers and Responsibilities Act 1990 (Qld), s 10.5

Uniform Civil Procedure Rules 1999 (Qld), Chapter 17A, r 681

CASES:

Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304

BAK v Gallagher & Ors [2018] QDC 32

BLJ v QLD & Anor [2018] QDC 14

Briginshaw v Briginshaw (1938) 60 CLR 336

Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55

Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34

GKE v EUT [2014] QDC 248

HZA v ZHA [2018] QDC 125

KAV v Magistrate Bentley & Anor [2016] QSC 46

Kilvington v Grigg & Ors (No.2) [2011] QDC 37

Knight v FP Special Assets Ltd (1992) 174 CLR 178

Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271

Oshlack v Richmond River Council (1998) 193 CLR 72

Roe v Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57

S v T [2018] QDC 49

West & Ors v Blackgrove & Anor [2012] QCA 321

Z v Z [2016] QDC 328

COUNSEL:

C O'Meara for the appellant

SOLICITORS:

M O'Brien (sol) instructed by Queensland Police Service Legal Unit for the first respondent

No appearance for the second respondent

Overview

  1. [1]
    On 3 July 2017, following a contested hearing at which both the appellant and the second respondent gave oral evidence, the learned Magistrate at Southport made a protection order against the appellant under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the DV Act”), naming the second respondent as the aggrieved. On 12 February 2018, following a rehearing before me on the evidence before the Magistrate, I set aside the Protection Order and remitted the matter back to the Southport Magistrates Court.[1]
  1. [2]
    In setting aside the Protection Order, I determined there had been a number of errors of law made by the Magistrate. In particular, that inadequate reasons were given for why he accepted parts but not all of the evidence of the second respondent and preferred the evidence he did accept [of the second respondent] over that of the appellant; a failure to apply the Briginshaw[2]principle to the standard of proof; and a failure to properly consider whether there was any cogent evidence that the Protection Order was either necessary or desirable.[3] 
  1. [3]
    Through his counsel, the successful appellant submitted that the first respondent [the police officer who made the original application for a protection order] ought to pay his costs of the appeal.[4]Relevantly, under s 10.5 of the Police Powers and Responsibilities Act 1990 (Qld), any liability arising from an order for the first respondent to pay costs attaches to the Crown. The application for costs was opposed and directions for the exchange of written submissions on this issue were made. 
  1. [4]
    I have given careful consideration to this issue and to the written submissions of the parties. For the reasons set out below, I have determined that the successful appellant is entitled to have his costs paid by the first respondent.

Relevant provisions of the DV Act

  1. [5]
    Costs are a creature of statute and can only be awarded in the circumstances stipulated by the legislature.[5]The starting point is to ascertain the current power to award costs under the DV Act. In doing so it is instructive to briefly reflect on the introduction of   the DV Act and the relevant provisions dealing with costs.  
  1. [6]
    The Domestic and Family Violence Protection Bill 2011 (Qld) was introduced to the Queensland Parliament on 6 September 2011.[6]The Bill was introduced to replace the existing Domestic and Family Violence Protection Act 1989 (Qld) following the Queensland Government initiative: For our Sons and Daughters: A Queensland Government Strategy to Reduce Domestic and Family Violence 2009-2014.
  1. [7]
    The DV Act was assented to on 17 February 2012,[7]although did not substantially commence until 17 September 2012.
  1. [8]
    Section 157 of the DV Act provides for costs generally. It has remained the same since its first enactment. This section states:

157  Costs

  1. (1)
    Each part to a proceeding for an application under this Act must bear the party’s own costs for the proceeding.
  2. (2)
    However, the court may award costs against a party who makes an application that the court hears and decided to dismiss on the grounds that the application is malicious, deliberately false, frivolous or vexatious. 
  1. [9]
    An award of costs under this section is confined. The discretion to award costs will not be enlivened simply because an application is malicious, deliberately false, frivolous or vexatious. As Henry J observed in KAV v Magistrate Bentley & Anor:[8]

The effect of s 157 is that three elements must be satisfied before a court’s discretion to award costs in an application for a protection order is enlivened:

  1. (1)
    the court must hear the application; and
  2. (2)
    the court must dismiss the application; and
  3. (3)
    the grounds for dismissal must be that the application is malicious, deliberately false, frivolous or vexatious.
  1. [10]
    If any of these elements are not met, then the court has no power to award costs at all. For example, if such an application is withdrawn or is dismissed without hearing then each party must bear their own costs.[9] 
  1. [11]
    When introduced in September 2012, s 142 of the DV Act appeared at the commencement of Division 2 under the heading “Practice and Procedure”. This section stated as follows:

142  Application of Uniform Civil Procedure Rules 1999

  1. (1)
    The Uniform Civil Procedure Rules 1999 apply in relation to a proceeding under this Act only to the extent that –
  1. (a)
    this Act expressly states that a rule applies; and
  1. (b)
    the application of the rule is not inconsistent with this Act.
  1. (2)
    The following provisions of the Uniform Civil Procedure Rules 1999 apply in relation to a proceeding under this Act –
  1. (a)
    chapter 1;
  1. (b)
    rules 8, 13, 32, 94, 95, 100, 102, 103, 106, 109, 110, 112, 116, 117, 120, 121 and 122;
  1. (c)
    chapter 4, parts 6 and 7;
  1. (d)
    chapter 11, part 4, other than rules 417, 418 and 419;
  1. (e)
    chapter 18
  1. (f)
    rule 971 to the extent it relates to a filing fee for an appeal;
  1. (g)
    any other provision prescribed under regulation.
  1. [12]
    The effect of this section was that the costs provisions of the UCPR (Chapter 17A) did not apply to appeals under the DV Act.[10]
  1. [13]
    Section 142 was amended by the Justice and Other Legislation Amendment Act 2013 (Qld) with effect from 28 February 2015.  As amended (and as it still provides), s 142 states as follows:

142  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.
  2. (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. [14]
    According to the explanatory notes to the Bill which became the DV Act, the changes achieve policy objectives through “the Domestic and Family Violence Protection Act 2012 and the Magistrates Courts Act 1921 to provide authority to make stand-alone rules of court for domestic and family violence proceedings”.  Otherwise, the notes provide no guidance or explanation as to why the entirety of the UCPR (in particular the costs provisions) were made expressly applicable to appeals under the DV Act when previously they had been excluded.
  1. [15]
    In the present case, both parties submit that s 157 of the DV Act does not apply to an appeal.[11]I accept this submission.
  1. [16]
    In my view, s 157 applies to proceedings at first instance and not to an appeal under the DV Act. It relates to “a proceeding for an application under this Act”. Applications are governed by Part 3 of the DV Act and concern protection orders (Division 1) and cross applications (Division 1A). Section 142 of the DV Act differentiates between a court dealing with a proceeding under the DV Act (where the Domestic and Family Violence Protection Rules 2014 (Qld) apply) and an appellate court (where the UPCR apply). It is expressly stated that the UCPR do not apply to a proceeding in a court under the DV Act. The definition of court in s 6 of the DV Act encompasses a court of first instance making a protection order.[12]It does not include an appellate court.
  1. [17]
    Section 142(2) expressly provides that the UCPR apply to an appeal under the DV Act. If parliament had intended that the costs provision of the UCPR did not apply to an appeal under the DV Act it could have legislated accordingly by, for example, expressly excluding Chapter 17A of the UCPR. Or parliament could have included a provision confining the power to order costs on appeal as it has for costs of the applications in the first instance [s 157(2)]. But it did not do any such thing.
  1. [18]
    It follows that the relevant provisions of the UCPR govern the issue of the costs of an appeal under the DV Act.

Power to award costs under the UCPR

  1. [19]
    No reference to the DV Act or appeals under this Act is found in the UCPR.
  1. [20]
    Chapter 18, Part 3 of the UCPR provides for procedures in relation to an appeal made to the District Court. Rule 785 provides that part 1 of Chapter 18 applies to Part 3 with the exception of several express rules. Rules 766 and 771 are not excluded under r 785.
  1. [21]
    Rule 776(1)(d) provides that the “Court of Appeal” “may make the order as to the whole or part of the costs of an appeal it considers appropriate”. Rule 771 provides that “the costs of appeals and all other matters brought before the Court of Appeal under this part are assessed under chapter 17A unless the Court of Appeal orders otherwise.It follows that r 766(1)(d) and r 771 of the UCPR together with Chapter 17A apply to the ordering and assessment of costs in relation to an appeal to the District Court pursuant to the DV Act.
  1. [22]
    Chapter 17A of the UCPR deals with costs. Within that chapter, r 680 relevantly states that “A party to a proceeding cannot recover any costs of the proceeding from another party other than under these rules or an order of the court.”
  1. [23]
    Rule 681 relevantly provides that:

681  General rule about costs

  1. (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.
  1. [24]
    In the present case, the starting point is that the costs of the appeal follow the event unless ordered otherwise. The issue for my determination is whether I should order otherwise.

Exercise of the discretion – should the court order otherwise?

  1. [25]
    The first respondent relied on the principles espoused by the High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 (“Oshlack”) and the characterisation of the present appeal proceedings as “public interest litigation” submitting there are special circumstances warranting departure from the usual rule that cost orders favour the successful party.[13] 
  1. [26]
    In identifying the appeal as public interest litigation, the first respondent pointed to the following factors as justifying a departure from the ordinary rule:
  1. (a)
    The first respondent reasonably defended the appeal and, as a police officer, was motivated by nothing other than his statutory obligation to enforce the law in accordance with the DV Act;
  1. (b)
    Other District Court decisions have not ordered costs in favour of a successful appellant and this case should therefore be “decided in a like manner”.[14]
  1. [27]
    In Oshlack, the majority of the High Court held that the primary judge had not erred in exercising the discretion not to award costs against the unsuccessful appellant, predominantly because it was determined that the appellant had instituted proceedings that were in the public interest. In that case, the unsuccessful applicant had brought proceedings under the Environmental Planning and Assessment Act 1979 (NSW) (“the EPAA”), against a local council and a developer, in seeking relief in respect of consent granted by the council to a development application.   The High Court was unanimous that the starting point in the exercise of the discretion was that a successful party was entitled to costs to mitigate against the costs incurred from litigation. But the majority also relevantly observed there was no absolute rule to be applied to that discretionary power, that in the absence of disentitling conduct, a successful party was to be compensated for costs by an unsuccessful party.[15]
  1. [28]
    In Oshlack, the court observed that the characterisation of proceedings as “public interest litigation” with the “prime motivation” being the upholding of “the public interest and the rule of law” may be a factor which contributes to a finding of “special circumstances” but is not, of itself, enough to constitute special circumstances warranting departure from the “usual rule”; something more is required.[16]The court accepted a number of factors constituted special circumstances warranting a departure from the usual rule [in that case] including:[17]
  1. (a)
    The litigation by the individual was not motivated by anything other than to ensure the relevant law was obeyed and to preserve endangered fauna.
  1. (b)
    There were a significant number of members of the public who shared his stance so in that sense there was a public interest in the outcome of the litigation.
  1. (c)
    The basis of the application was arguable, and raised and resolved significant issues as to interpretation of the statute.
  1. [29]
    In Oshlack, the discretionary power under consideration was provided by s 69(2) of the Land and Environment Court Act 1979 (NSW) which stated:

Subject to the rules and subject to any other Act:

  1. (a)
    costs are in the discretion of the court;
  1. (b)
    the Court may determine by whom and to what extent costs are to be paid;
  1. (c)
    the Court may order costs to be taxed or otherwise ascertained on a party and party basis or on any other basis.[18]
  1. [30]
    The statutory provision considered in Oshlack of course differs from that under consideration in the present case. Rule 681 of the UCPR expressly states that costs follow the event unless the court orders otherwise.  As McGill SC DCJ observed in Kilvington v Grigg & Ors (No.2) [2011] QDC 37, this distinction is relevant and must be kept in mind, as the provision under r 681 UCPR reflects the traditional approach.  This means that the starting point is that costs follow the event and the question is whether there is a sufficient reason to depart from that position to any extent.[19]
  1. [31]
    The court has an absolute and unfettered discretion as to costs which must be exercised judicially without caprice, bearing in mind relevant considerations.[20]The discretion will generally be exercised on the basis that a successful party to litigation is entitled to an award of costs in its favour.[21]The court will only depart from exercising the discretion in accordance with this principle if there are “sufficient special circumstances to justify a departure from the ordinary rule as to costs”.[22]In deciding whether a departure is justified in a particular case, fundamental principles of fairness favouring the prima facie approach stipulated by the rules apply, so a court will hesitate before departing from the general rule and will depart only in unusual cases.[23]The occasions justifying a departure from the ordinary rule have been described as rare and exceptional.[24] 
  1. [32]
    With all of these principles in mind it is necessary to consider the matters the first respondent raises as supporting a departure from the general rule.

Do the appeal proceedings concern public interest litigation?

  1. [33]
    It is uncontroversial that the DV 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.” [25] 
  1. [34]
    Relevantly, the main objectives of the DV Act are to “maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives”.[26]These objects are stated to be achieved by “giving police particular powers to respond to domestic violence, including the power to issue a police protection notice”, and “to ensure that people who commit domestic violence are held accountable for their actions”.[27]
  1. [35]
    There is, as the first respondent describes “wide “public interest” in the pursuit and outcome of domestic violence applications as the community requires that perpetrators of domestic violence are to be held accountable for their actions and their fellow citizens are able to feel safe in the community and pursue their lives in peace and without fear”.[28] 
  1. [36]
    In my view, appeal proceedings which arise from the pursuit of a protection order under the DV Act such as those in this case can be generally characterised as public interest litigation.

No self-gain and reasonable defence of public interest litigation 

  1. [37]
    It was submitted that the first respondent reasonably defended the appeal and as a police officer, was not motivated by private gain or by anything other than his statutory obligation to enforce the law in accordance with the DV Act. It was accepted there were no novel issues of law to be determined on appeal. The appeal was heard and determined in the context of well-established and well known legal principles.
  1. [38]
    There is no basis for me to reach any view other than the first respondent was motivated by his obligations under the DV Act in bringing the original proceedings and in opposing the appeal.
  1. [39]
    But, in my view, the findings of the Magistrate below raised a real and substantial doubt on appeal as to whether the Protection Order was necessary or desirable under s 37(1)(c) of the DV Act.
  1. [40]
    Despite there being a series of allegations made by the second respondent at the hearing below, the Magistrate found there was a single unwanted sexual advance in July 2016, as follows:[29] 

I watched both witnesses give evidence about the event to varying degrees. On her part, she was cross-examined at length about it. He was not cross-examined much about the event at all, but she certainly received a very thorough examination and, in my view, I tend to believe what she has said about there being an unwanted sexual advance by him on that occasion. My view is that that was a sexual assault, and whilst one might not believe her beyond all and any reasonable doubt as one would have to in a criminal court if he was ever charged with that, and I’m certainly not suggesting that he ever be charged with that, because I think the evidence really falls short of the beyond reasonable doubt standard of proof, but, nevertheless, on the balance of probability, it seems to me more probable than not that that unwanted sexual advance, and therefore, the sexual assault took place. [Emphasis added]

  1. [41]
    It was uncontroversial that the appellant and second respondent had previously been engaged in an extra-marital affair and they had worked together at the same branch of a real estate agency. After the single incident in July 2016, the second respondent remained employed with the appellant until early September 2016. She then moved to another branch of the same agency. There was some evidence there may be occasions where they may run into each other at agency functions but there was no other evidence of any ongoing contact between the two. It was specifically observed by the Magistrate that there had been no contact between the appellant and the second respondent since the commencement of the application.
  1. [42]
    Against this background I observed there was not a sufficient foundation to establish that a protection order was necessary or desirable.[30]In my view, the conduct of the first respondent in opposing the appeal does not advance his argument that there should be no order as to costs.

Consistency with other authorities

  1. [43]
    As stated above, the first respondent accepts [as I have found], s 157 of the DV Act does not apply to appeals. But the first respondent contends this section is relevant in another way.
  1. [44]
    It is submitted that it is clear that parliament’s intention in inserting s 157 was to ensure that the public interest in having police and or private applicant’s rights to “appropriately” commence proceedings against perpetrators of domestic violence is not frustrated due to concerns in relation to costs orders being made at their peril upon failure. I accept this. But I do not accept, as the first respondent also submits, that it is with this section in mind that the court in its appellate jurisdiction should exercise its discretion to not award costs to avoid the objects of the DV Act and the public interest being frustrated. In support of its argument, the first respondent relied heavily on the obiter comments of McGill SC DCJ in GKE v EUT [2014] QDC 248[31] which were then followed in a number of subsequent decisions.[32]
  1. [45]
    In my view this submission is flawed in a number of respects.
  1. [46]
    First, the relevant legislative provision [s 142(2) of the DV Act] expressly includes the application of the UCPR to appeals. There is nothing ambiguous about this section. As a matter of statutory interpretation, it is an incorrect approach to resort to the provisions of s 157 [that is, costs may be awarded only if the appeal or opposition to the appeal was malicious, deliberately false, frivolous and vexatious] in order to determine the issue of costs. If parliament had intended costs on appeal to be determined on the same basis as applications below it could have said so. As I observed earlier, it did not.
  1. [47]
    Second, and with respect, the authorities referred to by the first respondent either incorrectly relied on the observations made in GKE or can otherwise be distinguished from the present case. What appears to have been overlooked or not drawn to the judge’s attention in a number of these decisions is that in GKE, McGill SC DCJ was considering the earlier version of s 142 set out in paragraph 11 above.
  1. [48]
    It was with this earlier version in mind that McGill SC DCJ observed that it was not clear whether s 157 applied to an appeal and specifically referred to Chapter 17A of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) being “not made applicable by s 142 of the Act.”[33]Furthermore, he said:[34]

On the whole, and without the benefit of proper legal argument on the point on behalf of the respondent, I do not consider that the Act does impliedly exclude the power in the Civil Proceedings Act, but I consider that the 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 costs should follow the event…[Emphasis added]

  1. [49]
    In my view, these observations are of no assistance in determining the issue of costs payable in relation to appeals under the DV Act.[35]The current regime makes it clear that s 157 does not apply to appeals and expressly includes Chapter 17A.  Further, the observations in GKE must also be seen in the context that his Honour did not have the benefit of “proper legal argument” on the issue of costs.[36]
  1. [50]
    It follows that any reliance on these observations is wrong.[37]
  1. [51]
    This finding does not mean that the characterisation of the litigation as public interest litigation is not relevant to the exercise of the discretion to “order otherwise”.[38]
  1. [52]
    As Martin CJ observed in Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34, the characterisation of proceedings as ‘public interest litigation’ may be a factor which contributes to a finding of ‘special circumstances’ but is not, usually, of itself, sufficient to constitute special circumstances justifying departure from the ordinary rule as to costs.[39]In this case, the court observed that care must be taken to ensure that the characterisation of proceedings as ‘public interest litigation’ ‘does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner’.[40]
  1. [53]
    Third, I do not accept the submission that the objects of the DV Act will be frustrated and worthy applicants [and or police officers on their behalf] will be fearful of bringing applications in the first place for fear of costs orders being made on appeal. Costs of the originating proceedings remain confined to the circumstances in s 157.
  1. [54]
    Further, in my view, this submission cuts both ways and wrongly assumes that such applicants will lose on appeal. A respondent to a protection order who unsuccessfully appeals is of course exposed to costs on appeal. So on another view such exposure to costs may potentially deter unmeritorious appeals. The categories are not limited but given the nature of domestic violence proceedings, there may be occasions when appeals are mounted by the respondent to the original protection order to antagonise and draw out an ongoing engagement with the applicant, resulting in the applicant having to engage legal representation at a substantial cost. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to compensate a successful party.[41]
  1. [55]
    The fact that parliament has now legislated such that costs follow the event on appeal (unless the court orders otherwise) is, in my view, well-grounded in reasons of fairness and policy.

Conclusion

  1. [56]
    The starting point for determining the cost of appeal under the DV Act is that costs follow the event unless the court orders otherwise.
  1. [57]
    Whilst the nature of this appeal is one that can be broadly categorised as public interest litigation, that in itself is not a sufficient reason to warrant a departure from the usual rule. Upon the above analysis, I am not satisfied that any of the other factors raised by the first respondent warrant another order in this case. It follows that the successful appellant is entitled to an order that his costs be paid by the first respondent.[42]

Order 

  1. [58]
    I therefore order that the first respondent pay the appellant’s cost of the appeal.

Footnotes

[1] BAK v Gallagher & Ors [2018] QDC 32.

[2] Briginshaw v Briginshaw (1938) 60 CLR 336.

[3] BAK v Gallagher & Ors [2018] QDC 32 at [40]: I observed that there was no basis apart from speculation to support a protection order being necessary or desirable as required by s 37(1)(c).

[4] After my ex tempore reasons were delivered, the appellant submitted that the issuing of an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) might be appropriate. This submission was subsequently abandoned in the costs submissions of the appellant on the basis that no question of law was raised on the appeal.  Further, the first respondent identified any liability to pay costs attaches to the Crown, and that under s 21 of the Appeal Cost Fund Act 1973 (Qld) an indemnity certificate shall not be granted in favour of the Crown. 

[5] Knight v FP Special Assets Ltd (1992) 174 CLR 178, 182; Amos v Monsour Legal Costs Pty Ltd [2008] 1 Qd R 304, 314.

[6] &The 3rd Reading was also conducted on 6 September 2011.

[7] Sections 1 and 2 came into effect on this date.  The remaining sections came into effect on 17 September 2012.

[8] [2016] QSC 46 at [7].

[9] Ibid at [8].

[10] GKE v EUT [2014] QDC 248 at [68]-[69].

[11] Although as discussed later in these reasons, the first respondent retreats from this submission in the sense he maintains that this section is part of the legislative scheme and ought to be taken into account in determining costs on appeal.

[12] Which by s 6(c) could include the District or Supreme Court if that court convicts a person of a domestic violence offence.

[13] Relying on the principles in Oshlack v Richmond River Council (1998) 193 CLR 72 at [20].   

[14] As expressed in [64] of the outline of submissions on behalf of the first respondent.

[15] Oshlack v Richmond River Council (1998) 193 CLR 72 at [40] and [134].

[16] Oshlack v Richmond River Shire Council & Iron Gates Developments Pty Ltd (1994) 82 LGERA 236 at 243-4.

[17] These factors will vary depending the circumstances of the case.  See Conservation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34 at 6.

[18] It was noted that there were no rules or other legislative provisions that were relevant.

[19] Kilvington v Grigg & Ors (No.2) [2011] QDC 37 at [30].

[20] West & Ors v Blackgrove & Anor [2012] QCA 321 at [51].

[21]Oshlack v Richmond River Council (1998) 193 CLR 72.

[22]Ibid at [20].

[23]Kilvington v Grigg & Ors (No.2) [2011] QDC 37 at [37].

[24]Roe v Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 at [13].

[25]Section 4(1) of the DV Act.

[26]Section 3(1) of the DV Act.

[27]Section 3(2) of the DV Act.

[28]Outline of submissions on behalf of the first respondent at [58].

[29]Page 3 of the Magistrate’s Reasons.

[30]BAK v Gallagher & Ors [2018] QDC 32 at [40].

[31]At [69].

[32]See footnote 37.

[33]GKE v EUT [2014] QDC 248 at [68].

[34]Ibid at [69].

[35]This view is consistent with the approach taken by the Court recently in HZA v ZHA [2018] QDC 125 at [5]-[10]. 

[36]GKE v EUT [2014] QDC 248 at [68].

[37]HZA v ZHA [2018] QDC 125.  Cf  S v T [2018] QDC 49; Z v Z [2016] QDC 328;  BLJ v QLB & Anor [2018] QDC 14. In S v T, the court determined there should be no orders as to costs on appeal based upon a finding that an application at first instance had not been brought about by malice, frivolity or vexation. The first respondent submits correctly, in my view, that this approach ought not be followed but that those matters are relevant to the costs of the appeal [not the original proceedings] as was the approach by the court in Z v Z and in BLJ.  For the reasons discussed in this Judgment, I disagree with this latter submission. In Z v Z, a successful respondent sought costs on the basis the appeal was frivolous because it pointed to no error of law. The court was not [at [9]–[14]] prepared to make a finding that the appeal was malicious, deliberatively false, frivolous or vexatious and so made no order as to costs of the appeal and [at [8]] agreed with McGill SC DCJ in GKE that if there is power to order costs on appeal under the DV Act it should be exercised in light of s 157.  Likewise in BLJ at [5] the court considered that given the scheme of the DV Act, the approach of McGill SC DCJ in GKE was correct and that it followed that whilst costs can be ordered, any order should be made bearing in mind s 157.

[38] HZA v ZHA [2018] QDC 125.  For example in BLG, the court in making no order as to costs was satisfied that the second respondent [i.e. police officer] had properly defended the appeal for no private gain, and had contributed to a proper understanding of the law in question.

[39] With reference to Oshlack v Richmond River Council (1998) 193 CLR 178 at [20].

[40] With reference to Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale & Anor [1999] WASCA 55 at [11]; Roe v Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 at [13].

[41] Oshlack v Richmond River Council (1998) 193 CLR 72 at [97] (per McHugh J); although an unrepresented party is not ordinarily entitled to recover costs unless, for example, it is a disbursement/outlay such as a filing fee: see KBE v Queensland Police Service [2017] QDC 326.

[42] Note that UCPR r 686(a) provides that costs may be assessed without an order for assessment having been made if the court orders a party to pay another party’s costs.  In other words, it is not necessary to seek an order that costs be assessed: see Mio Art Pty Ltd v Macequest Pty Ltd & Ors (No 2) [2013] QSC 271 at [11] per Jackson J. Further, r 702(1) expressly provides that “[u]nless these rules or an order of the court provides otherwise, a cost assessor must assess costs on the standard basis”.  Again, it is unnecessary to seek an order that costs be assessed on the standard basis: Mio Art at [12]. It is unnecessary in an order for costs to refer to “incidental costs”.  Any costs actually, necessarily and reasonably incurred in relation to an application (including the cost of preparation), are recoverable under the orders as made: Mio Art at [19]-[22].

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Editorial Notes

  • Published Case Name:

    BAK v Gallagher & Anor (No 2)

  • Shortened Case Name:

    BAK v Gallagher (No 2)

  • MNC:

    [2018] QDC 132

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    17 Jul 2018

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