RIS v DOL (No. 2)[2021] QDC 157

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant filed an application for a Domestic Violence Order against the first respondent on 4 November 2019, and the first respondent in turn filed a cross application on 6 December 2019. Both hearings were listed for trial, but at a “review” on 12 August 2020, the learned magistrate at the Holland Park Magistrates Court proceeded to determine the applications on the material filed, without providing either party an opportunity for hearing or cross-examination. The learned magistrate made decisions finalising the matters (dismissing the appellant’s application and granting the first respondent’s application) and an appeal was filed.
2. [2]
   This court heard the appeal on 4 June 2021; dismissed the first respondent’s application to strike out the appeal for failure to comply with time limits; set aside the protection order made at the Holland Park Magistrates Court against the appellant; remitted both applications to the Brisbane Magistrates Court for rehearing before a different magistrate; and listed the issue of costs for hearing before me on 21 July 2021.^[1]

The law – appeal costs pursuant to the Domestic and Family Violence Protection Act

3. [3]
   The Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) provides at s. 142(2) that:

The Uniform Civil Procedure Rules 1999 apply to an appeal under this Act.

Relevantly, Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) r 681(1) provides:

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.

4. [4]
   As Muir DCJ noted in KBE v Queensland Police Service [2017] QDC 326, [17]:

Costs are not awarded to punish an unsuccessful party, but ordinarily, to indemnify a successful party.

5. [5]
   In BAK v Gallagher & Anor (No. 2) [2018] QDC 132, [31] Muir DCJ (on the issue of costs in appellate proceedings under the DFVPA), stated:

[31] The court has an absolute and unfettered discretion as to costs which must be exercised judicially without caprice, bearing in mind relevant considerations [West & Ors v Blackgrove & Anor [2012] QCA 321 at [51]]. 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 [Oshlack v Richmond River Council (1998) 193 CLR 72]. 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” [Ibid at [20]]. 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 [Kilvington v Grigg & Ors (No.2) [2011] QDC 37 at [37]]. The occasions justifying a departure from the ordinary rule have been described as rare and exceptional [Roe v Director General, Department of Environment and Conservation for the State of Western Australia [2011] WASCA 57 at [13]].

Submissions

6. [6]
   Mr Minnery, who appeared on behalf the appellant, submitted that she had been “wholly successful in her appeal”, and submitted further that the first respondent had been responsible for delays in the hearing of the appeal, in circumstances where there were “no real grounds to oppose the appeal” and the first respondent “mounted no meaningful or substantive argument against the granting of the appeal”.^[2]
7. [7]
   Mr Minnery submitted further that there was “no realistic prospect of ever defending the appeal”, and noted that he had conceded, at the hearing of the appeal, that were the positions reversed (ie had the learned magistrate dismissed the first respondent’s application and granted the appellant’s application), the appellant would be unable to successfully argue against the upholding of the appeal on natural justice grounds.^[3]  With respect, that was an entirely appropriate concession on the part of Mr Minnery, given my conclusion that there was a clear failure by the learned magistrate to provide procedural fairness, by failing to provide not only a fair hearing but any hearing.^[4]
8. [8]
   Although Mr Minnery was critical of the conduct of the appeal by the first respondent, he appropriately conceded that the original error which led to the successful appeal by the appellant was the conduct of the matter by the learned magistrate at the Holland Park Magistrates Court.  He submits, however, that it then fell to the appellant to bring the appeal in order to correct the error of the learned magistrate, and that the first respondent continued to defend an “undefendable” appeal.
9. [9]
   The court was not assisted by any written submissions from the first respondent, nor did the first respondent provide any substantive oral submissions, other than a submission that a costs order should not be made.

Discussion

10. [10]
    It is clear, in my view, that the combined effect of DFVPA s.142(2) and UCPR r.681(1) is that costs in this appeal should follow the event (i.e. that the appellant is entitled to her costs of the appeal). The appellant succeeded in her appeal, which was inevitable given the conduct of the proceedings by the learned magistrate at Holland Park.
11. [11]
    The remaining issues for the court to consider are:

    1. (1)
       Whether costs should be awarded on the standard basis, or on an indemnity basis; and
    2. (2)
       Whether an order should be made that the costs be paid by the Appeals Costs Fund.
12. [12]
    As I have identified, the first respondent did not contribute in any way to the lack of procedural fairness afforded by the learned magistrate who made the protection order the subject of this appeal.  Nor did the first respondent contribute in any other way to the learned magistrate falling into error as he did.
13. [13]
    It is submitted (and I accept) that the first respondent, in his conduct of the appeal, has contributed to delays in the appeal being heard. However, I note that the first respondent was unrepresented both at the Magistrates Court and in this court, and, despite being professionally educated, appears to have, at best, only a limited understanding of the relevant legal issues.  In particular, he was unable to assist the court with submissions on the issue of costs, despite being given the opportunity of providing such submissions.
14. [14]
    The approach to a decision as to whether an order for costs should be made on an indemnity basis is helpfully summarised by Flannagan J in Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 168, [18]-[19], as follows:

[18] The starting point is that costs should be awarded to a successful party assessed on the standard basis. This is reflected in r 702 of the Uniform Civil Procedure Rules 1999 (Qld). The Court has a discretion, however, to order costs to be assessed on the indemnity basis [Uniform Civil Procedure Rules 1999 (Qld), r 703(1)]. There must be “some special or unusual feature of the particular case” [Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J; LPD Holdings (Aust) Pty Ltd & Anor v Phillips, Hickey and Toigo & Ors [2013] QCA 305 at [22] per Boddice J, Holmes JA and Philip McMurdo J agreeing] to warrant the making of such an order— winning is not enough [Thiess Pty Ltd v FLSMIDTH Minerals Pty Ltd (No 2) [2010] QSC 120]. That is so even if the successful party’s victory is comprehensive. Indeed, this Court has previously declined to make an indemnity costs order despite a defendant being successful in obtaining summary judgment [See, for example, Robertson Vlahos (No 2) [2010] QSC 475]. The common feature underlying the instances where a costs order on the indemnity basis has been made is that the unsuccessful party has engaged in blameworthy conduct to a degree justifying a departure from the ordinary rule as to costs. In the final analysis, however, “costs are always in the discretion of the trial judge” [Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225 at 234 per Sheppard J].

[19] Although the circumstances in which the Court may award costs on an indemnity basis are not closed, [Di Carlo v Dubois & Ors [2002] QCA 225 at [37]] some assistance may be derived from Colgate-Palmolive Company and Anor v Cussons Pty Ltd, [(1993) 46 FCR 225] where Sheppard J identified some of the circumstances that have justified the making of a costs order on the indemnity basis [(1993) 46 FCR 225 at 233-4]. They do not need to be repeated here save as to one which the defendants submit is analogous to the present case, namely “the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.”[Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J]

15. [15]
    The learned magistrate’s decision which was the subject of this appeal was plainly indefensible, and had the first respondent chosen to access legal advice, he would have undoubtedly been so advised.
16. [16]
    UCPR r. 703(2) provides:

...the court may order that costs be assessed on the indemnity basis if the court orders the payment of costs—

(a) out of a fund

17. [17]
    Appeal Costs Fund Act 1973 (Qld) s. 15(2) 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.

18. [18]
    I am satisfied that the error which grounded the successful appeal was a clear and patent error of law on the part of the learned magistrate but was not contributed to in any way by either the appellant or the first respondent.  Accordingly, it is appropriate that this court exercise its discretion in favour of a grant of an indemnity certificate to the first respondent.^[5]
19. [19]
    The appellant submits that she “ought not be at all out of pocket for the requirement, imposed on her, that she correct the error [of the learned magistrate]”^[6] The appellant identifies these cost at $14,990.49^[7] and exhibits the relevant documentary basis to support that calculation in her affidavit.
20. [20]
    In my view, given the way that the appeal has been conducted and the provisions of UCRP r. 703(2), it is appropriate to make an order that the first respondent pay the appellant’s costs, on the indemnity basis, fixed at $14,990.49, but subject then to an associated grant of an indemnity certificate pursuant to s. 15(2) of the Appeal Costs Fund Act 1973 (Qld). The effect of these orders will be that the appellant is not out of pocket, but the order against the first respondent will be met by the Appeal Costs Fund.

Orders

1. The first respondent pay the appellant’s costs of the appeal, on an indemnity basis, fixed at $14,990.49.
2. The first respondent be granted an indemnity certificate in respect of the appeal under s. 15(2) of the Appeal Costs Fund Act 1973.