S v T[2018] QDC 49

DISTRICT COURT OF QUEENSLAND

1. [1]
   A protection order naming the respondent as the aggrieved and the appellant as the respondent was made in the Wynnum Magistrates Court on 1 September 2017. An appeal was allowed in relation to that order on 21 December 2017 and an order was made that the parties file written submissions in relation to costs. The appellant seeks an order for the respondent to pay her costs of the original hearing and the appeal.

2. [2]
   Section 157 of the Domestic and Family Violence Protection Act 2012 provides:

“157 Costs

3. (1)
   Each party to a proceeding for an application under this Act must bear the party’s own cost of the proceeding.

3. (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.

3. (3)
   In this section party includes an aggrieved.”

3. [3]
   There is no similar section in relation to appeals under the Act. However s 142(2) of the Act provides that the Uniform Civil Procedure Rules apply to an appeal under the Act. Rule 681 of the Uniform Civil Procedure Rules provides that “costs of a proceeding, including costs of an application in a proceeding, are under the discretion of the court but follow the event, unless the court orders otherwise.”

4. [4]
   In written submissions both parties referred to the case of GKE v EUT [2014] QDC 248 where Judge McGill SC noted without having heard argument on the point:^[1]

“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 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 the 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 …”

5. [5]
   Given the scheme of the Act is to provide protection for those the subject of domestic violence and to allow for applications to be made without formality, it seems to me that the position taken by Judge McGill must be correct. It follows that while costs can be ordered, any order should be made bearing in mind that at first instance it could only be made if the application is malicious, deliberately false, frivolous or vexatious. In this case there were text messages sent to the respondent. He did wake one day to find her in his house unexpectedly and she did attend with friends at his work place. In the absence of anything further there were some issues to be resolved on an application for domestic violence.

6. [6]
   At the hearing the issues were narrowed and the respondent did not attempt to hide his own behaviour which resulted in inappropriate text messages on his behalf and also photographs being sent to male friends which were ill advised, immature and inappropriate. He denied specifically that he had made the application in retaliation for the appellant complaining to police about him or in order to have some sort of leverage over her. Clearly there is some suspicion that that may have been the impetus for the application giving the timing, but on balance that I am unable to make a finding that the application was at the time malicious, deliberately false, frivolous or vexatious and accordingly I make no order as to costs.