RBG v BKS[2021] QDC 234

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant appeals against the decision of a magistrate made on 27 April 2020.
2. [2]
   By the decision, pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (the DV Act) the court made a domestic violence protection order against the appellant for the benefit of the first respondent and the niece of both the first respondent and the appellant was named as a protected person.
3. [3]
   As in the proceedings below, the appellant was self-represented and the first respondent was represented by counsel.  The second respondent was represented by counsel at the appeal and joined the proceedings pursuant to s 167 of the DV Act which gives the police commissioner the right to appear and be heard before the appellate court on an appeal under this division.

Background

4. [4]
   The appellant and the first respondent are siblings.  On 21 October 2019, the first respondent applied for a domestic violence protection order protecting herself and as named persons, their niece, sister, and their sister’s husband.  At the trial, the Magistrate was informed that neither the sister nor her husband (the niece’s parents) wished to be named in any continuing order.
5. [5]
   The principal grounds detailed in the first respondent’s application for the protection order were verbal abuse from the appellant by text message, email and telephone calls, physical abuse at their father’s funeral on 21 June 2019 and at the nursing home where their mother resided on 8 October 2019, physical damage caused by the appellant to her motor vehicle on or about 9 October 2019 and the firing of gun shots near her home on the day after their mother’s funeral.
6. [6]
   The application was heard and determined on 17 March 2020 and the Magistrates decision given on 27 April 2020.
7. [7]
   Affidavits were filed by the first respondent and their niece; records were subpoenaed from the nursing home and medical practitioners.  With one exception, it does not appear that the subpoenaed material was relied upon at the trial.
8. [8]
   Affidavits were filed by the appellant and the statutory declaration of one witness was relied upon by the appellant.
9. [9]
   Each of the appellant and the first respondent, and the one witness the appellant called were cross examined.  The niece was not cross examined.
10. [10]
    The Magistrate made a protection order naming the first respondent as the aggrieved and the niece as a named protected person against the appellant.  The terms of the protection order were the same as the temporary protection order made on 22 October 2019, with the protection order made to continue until 26 April 2025.

The Magistrate’s Decision

11. [11]
    The Magistrate summarised the case against the appellant as one where over the years the relationship between the parties had declined.  This deterioration was described as concerning the parties’ parents and involved a range of issues concerning real property, the care of the parents and money of the parents.  Both parents are now deceased and were deceased at the time of the hearing.  The Magistrate commented that the “emotions relating to these issues still run very deep and cause pain and hurt to both parties.”
12. [12]
    The Magistrate went through the background to the declining relationship.  The Magistrate referred to the evidence of the first respondent who said the appellant has been residing with their parents as the primary carer but that at a certain point the first respondent had formed the view that their mother required more care than the appellant could provide.  The Magistrate referred to a series of falls by the mother at home and referred to a dispute that arose between the appellant and the first respondent about moving the mother from the upstairs bedroom to the downstairs living room.  The Magistrate referred to a written agreement entered between the first respondent and the appellant in relation to the appellant’s continuing care of the parents at their home.  The agreement included a requirement that the parents be moved downstairs from the upstairs bedroom which was described as a precondition to the release of their mother from St Vincent’s Hospital in January 2018.
13. [13]
    The Magistrate referred to the continuing dispute about the care of the mother and the first respondent having moved the mother into a nursing home without the appellant’s prior knowledge or agreement.
14. [14]
    The Magistrate went through each of the alleged incidents as particularised in the application for a domestic violence order.  The principal ground for the first respondent’s application was that the appellant had been verbally abusive to her by telephone and text messages and that the verbal abuse had escalated to physical abuse.
15. [15]
    The Magistrate referred in particular to the evidence of the first respondent of the appellant making a verbal threat to kill her while grabbing her around the neck with both hands and of the appellant damaging her motor vehicle in October 2019.
16. [16]
    The Magistrate referred to the evidence of the appellant who said that the root cause of his feelings towards the first respondent stemmed from his belief that she had caused the death of their mother as she had deprived their mother of her liberty by placing her in a nursing home which he says accelerated her death.   The Magistrate said that the appellant did not dispute that he had sent the first respondent messages where he had said “Shut up, you bitch” and had called her a “munt”, nor did he dispute having grabbed the first respondent around the neck at their mother’s nursing home; though he denied using both hands and denied the strangle hold having been broken by their niece. 
17. [17]
    The Magistrate referred to the appellant’s evidence being that he was unable to grab the first respondent with his right hand as he had injured that hand 12 months prior and there being no medical evidence led to support this claim.  The Magistrate referred to the appellant’s evidence being that the first respondent had lunged forward towards him and in doing so put her neck into his hand.  The appellant also denied damaging the first respondent’s car.
18. [18]
    The Magistrate preferred the evidence of the first respondent, finding her to be “credible and reliable.”  The Magistrate found her account to be supported by the affidavit of their niece and the medical evidence of the injuries sustained after being grabbed around the neck.  The Magistrate found the evidence of the appellant to be “somewhat tangential and less reliable.”  The Magistrate expressed concern about the attitude of the appellant describing it as being aggressive and minimising the first respondent’s trauma. 
19. [19]
    In all the circumstances, the Magistrate found on the balance of probabilities that there had been an act of domestic violence in the assault incident.  The Magistrate also found that the text messages sent by the appellant to the first respondent were intimidatory. 
20. [20]
    A protection order was found by the Magistrate to be necessary and desirable based on the appellant’s past conduct including the acts of physical violence and a course of conduct designed to “intimidate and frighten” the first respondent. 
21. [21]
    The Magistrate was informed by the appellant’s lack of remorse, his course of conduct including inappropriate texts, conduct at his mother’s funeral, physical acts towards the first respondent at the nursing home and a credible possibility that he had damaged the first respondent’s car. 
22. [22]
    The Magistrate found there was a risk of future domestic violence.  The Magistrate referred to the severity of the acts of domestic violence, the attitude of the appellant’s lack of remorse and his other variables including his alcohol and drug use which may affect his capacity to self-regulate, the familial relationship and matters such as (but not confined to) the resolution of the parent’s estate which may require the parties to be in some sort of contact.

Mode of Appeal

23. [23]
    An appeal against a decision made under the DV Act is brought pursuant to s 164 of the DV Act.  Section 164 permits an appeal to be brought by a person aggrieved by any of the following decisions of a court:

1. “(a)
   a decision to make a domestic violence order;
2. (b)
   a decision to vary, or refuse to vary, a domestic violence order;
3. (c)
   a decision to refuse to make a protection order;
4. (d)
   if the person sought a temporary protection order in a proceeding under this Act – a decision to refuse to make the order.”

24. [24]
    In accordance with s 168(1), the “appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.”   However, under s 168(2) of the DV Act the “appellate court may order that the appeal be heard afresh, in whole or part.”  No such order was sought or made in this case.  
25. [25]
    Under s 169, in deciding this appeal, the court can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court.
26. [26]
    In conducting an appeal, s 142(2) of the DV Act provides that Ch 18 (the appeal provisions) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) apply, to the extent that such rules are not inconsistent with the DV Act.   In that way, it is said the nature of the appeal is by way of rehearing.^[1]
27. [27]
    A rehearing requires that the court conduct a real review of the evidence at first instance and of the Magistrate’s reasons for decision and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.^[2]  In Mbuzi v Torcetti, Keane JA described the task as:

“On such an appeal the judge should afford respect to the decision of the Magistrate and bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.”^[3]

Grounds of Appeal

28. [28]
    In his notice of appeal, the appellant said his appeal was on the grounds that “the learned Magistrate erred in law by finding that it was necessary or desirable to make a domestic violence order.”  The appellant did not particularise the ground of appeal.
29. [29]
    In his outline of argument, the appellant challenged various statements or findings made by the Magistrate in the giving of the decision.  The submissions consisted of the appellant’s view as to what happened.
30. [30]
    In support of his challenges, the appellant sought to rely on further evidence; the majority of which were further text messages between the appellant and the first respondent and additional medical certificates.  After an initial objection, the first respondent did not pursue the objection to the receipt on appeal of the further evidence.
31. [31]
    Not all of the challenges related to actual findings made by the Magistrate.  Two of the challenges related to the Magistrate’s summary of the background facts relating to the care of their parents which gave rise to the tension in the relationship between the appellant and the first respondent.  These did not involve findings of fact made by the Magistrate for the purposes of making the order.  It is unnecessary to deal with them further.
32. [32]
    There are a number of specific challenges to findings to be considered.

Credibility

33. [33]
    In his submissions, the appellant challenged the description of his evidence as being “somewhat tangential and less reliable in his evidence”. 
34. [34]
    A review of the transcript indicates that the appellant had a tendency not to answer the questions asked of him in cross examination, often reverting to making submissions, often about matters irrelevant to the current application before the court.  This tendency also pervaded his cross examination of the first respondent.
35. [35]
    There is no basis for the criticism of the Magistrate’s description.

Assault

36. [36]
    The main finding of fact challenged in the submissions related to an event on 8 October 2019 at the nursing home where the mother of the appellant and the first respondent resided.
37. [37]
    The appellant in his submissions said he disagreed with the finding that he put his hands (plural) on the first respondent.  The appellant said, in the course of his submissions, that he grabbed the first respondent around the neck with his left hand (only) and as he did so the first respondent lunged towards him.
38. [38]
    The Magistrate stated in the decision that the appellant had acknowledged that he laid his hands on the first respondent.  If that finding is taking literally, it may not be accurate.  It might have been more accurate to have said that the appellant admitted laying a hand on the first respondent, but it would not be uncommon to describe the admission as amounting to him laying his hands on the first respondent. It is clear the Magistrate understood the appellant’s submission, earlier in the decision referring to the appellant stating that he had only laid one hand on the first respondent as he had injured his other hand some 12 months prior.
39. [39]
    The Magistrate rejected the appellant’s evidence about the first respondent lunging at him on the basis that the mechanics did not add up.  In addition, as I have said, the Magistrate favoured the evidence of the first respondent overall.  The submissions with respect to the nature of the event simply repeated the appellant’s view of the events, and do not advance the challenge. 
40. [40]
    It is difficult to make much of the challenge in any event as not only was there an admission by the appellant that he grabbed the first respondent, but also a conviction for having done so.  During the appeal, the court order dated 13 August 2020 for the common assault involved was tendered.  The order was made subsequent to the hearing and decision of the Magistrate on the protection order application.  The appellant pleaded guilty to the charge.  The court ordered that the appellant enter into a recognisance in the amount of $400 conditioned on the appellant being of good behaviour for six months.

Medical Evidence

41. [41]
    Related to the submissions dealing directly with the assault are two submissions dealing with what might be described as the corroborative evidence.  The first is the evidence of the niece who was present at the time.  The second is the medical evidence.
42. [42]
    The appellant submitted that it was 14 days until his sister saw a doctor; whom she had never visited before and that the doctor had stated that there was no external injury.  The appellant submitted that if the first respondent had any marks or damage to her neck she could have taken a photo on her phone, and that the first respondent was eating some 30 minutes after the incident.
43. [43]
    There is no basis not to accept the veracity and independence of the medical evidence.  That evidence took the form of typed consultation notes and a typed statement signed by the treating doctor.  Both record that on examination, the first respondent was found to be tender on both sides of the front of her neck though there was no external bruises or other signs of injury.  The doctor said, “These findings could be consistent with a strangulation attempt.” 
44. [44]
    The findings of tenderness on both sides of the front of her neck are consistent with the appellant having placed both hands, rather than one hand, around the first respondent’s neck.

Evidence of Niece

45. [45]
    In her affidavit, the niece supports the appellant having grabbed the first respondent’s neck with both hands and supports the first respondent in the verbal exchange which occurred between the appellant and the first respondent. 
46. [46]
    The appellant submitted that the Magistrate should not have accepted the evidence of the niece when the niece did not testify and was not cross examined.  The niece was to give evidence via phone at the hearing.  In his outline and in oral submissions, the appellant referred to the niece having refused to answer the call. 
47. [47]
    The transcript of the hearing does not support that statement.  Rather, it appears there was some difficulty in calling the niece, and later the appellant was afforded the opportunity to cross examine but chose not to do so.
48. [48]
    The transcript reveals that the Magistrate asked the appellant if he wished to cross examine and he indicated he did not.  Prior to moving on, without the niece being cross examined, this exchange occurred between the Magistrate and the appellant:

“Bench: Do you want to cross examine [the protected person]?

  Respondent: No, I don’t, your Honour.

  Bench: You don’t.

  Respondent: No. I’ve addressed the points in my affidavit.”^[4]

49. [49]
    The appellant again stated at the end of the hearing before the Magistrate, that he had no intention of cross examining the protected person, stating, “I wasn’t going to cross examine her, anyway.”^[5]
50. [50]
    In oral submissions on the appeal, the appellant nevertheless expressed the view that, before the Magistrate should have accepted the affidavit of the niece as evidence, counsel for the first respondent was required to cross examine her.  The niece was being called by the first respondent, in support of her application for the making of the domestic violence order.  There was accordingly no capacity for her to be cross-examined by the first respondent, nor would any useful purpose be served by her being called unless the appellant sought to do so.
51. [51]
    The Magistrate was perfectly entitled to rely upon her affidavit.
52. [52]
    The law requires that the appellant be afforded the opportunity to cross examine,^[6] and   the transcript makes it clear that the appellant was afforded the opportunity which he chose to waive.  In those circumstances, there is no denial of procedural fairness and no consequential error of law.^[7]
53. [53]
    The Magistrate was justified in making the findings made in relation to the incident at the nursing home and in finding that an act of domestic violence had occurred.

Damage to Car

54. [54]
    In his submissions, the appellant denied damaging the side mirror of the first respondent’s car.
55. [55]
    During the course of deciding that part of the application as to whether an order was necessary or desirable, the Magistrate stated that there was “a credible possibility that [the appellant] had, in fact, damaged [the first respondent’s] car whilst it was parked at the nursing home.”  
56. [56]
    The Magistrate did not make any finding on the balance of probabilities that the appellant had damaged the car; the test for these applications.  It was only described as a credible possibility.  It is easy to see why the Magistrate could not do anymore.
57. [57]
    There was evidence from the first respondent of having seen the appellant in the carpark and of the appellant not having entered the facility and of the first respondent having subsequently heard a loud bang in the carpark.  A photograph of the damage to the car was tendered in evidence.
58. [58]
    Whilst the appellant admitted to being in the carpark and to recognising the first respondent’s car, the appellant offered a reasonable explanation for his non-attendance in the facility that night, as he realised the first respondent was visiting. There is no evidence of anyone having seen the appellant touch or damage the car.
59. [59]
    The issue is whether the finding, such as it is, affected or could be said to have affected the ultimate order.  Ultimately, as will be seen, the possibility that the appellant may have damaged the car was one of many factors referred to by the Magistrate in support of the conclusion that the order was necessary and desirable.  The low level of the finding suggests it was not significant to the making of the order.
60. [60]
    There is no basis upon which the ultimate decision can be challenged on this ground.

Appellant’s Witness

61. [61]
    One of the issues raised in the submissions was that the Magistrate, when dealing with the evidence of a witness called by the appellant, referred to the evidence of the appellant having been too drunk to drive on the night of their mother’s funeral and that it was therefore impossible that the appellant would have fired six gunshots near the first respondent’s home.
62. [62]
    This evidence was irrelevant by the time of the decision.  Initially the first respondent had alleged that gunshots had been fired near her home by the appellant, though in her evidence she admitted to never having seen the appellant with a gun. In closing submissions before the Magistrate, counsel for the first respondent confirmed that the allegation was not pressed, and the Magistrate made no reference to the gunshots in the decision.
63. [63]
    There is no merit in the challenge.

Text Messages – “Bitch” and “munt”

64. [64]
    The appellant challenges the accuracy of the Magistrate’s finding in relation to certain text messages.  The appellant referred to a message he is said to have sent in which the Magistrate said the appellant had said, “shut up, you bitch”.  In fact, the message sent the appellant had said, “stuff you bitch”.  It is difficult to find there to be any real difference in the aggression of either message.
65. [65]
    The appellant also disputes the Magistrate finding of the appellant having called the first respondent a “munt”.  The appellant is correct that in the message to which the Magistrate was referring, the words in the text message to his sister were “Who was the dumb munt got u [sic] to do an affidavit?”  In that message, the appellant was not referring to the first respondent.  However, a review of the transcript shows that there was questioning of the appellant as to the meaning to be given to the word “munt”.  The appellant said he had meant to say “bunt” and he described it as “someone who goes headlong, headbutting, ploughing their way through lawyers and banks, police and nursing homes.”  In questioning, the appellant confirmed that the expression appropriately described the first respondent. 
66. [66]
    There is no merit in the challenge.

Text Message - Retribution

67. [67]
    The appellant also challenges the Magistrate’s reliance on the appellant’s “inscrutable statements about retribution from God.”  The statements were made in text messages sent by the appellant to the first respondent.  The Magistrate referred to the statements in finding that there was no acknowledgement by the appellant of any wrongdoing and what the Magistrate found to be a lack of remorse; findings which the Magistrate considered supported the necessity or desirability of the order.
68. [68]
    The Magistrate was justified in so finding.

Eulogy

69. [69]
    The appellant challenges the finding by the Magistrate that he had a friend read out an eulogy in which he named the first respondent as the cause of his mother’s death.
70. [70]
    The appellant says that his eulogy stated that the first respondent’s treatment of their mother was “cruel, criminal and reprehensible.”
71. [71]
    The decision of the Magistrate was based on the evidence of the first respondent. There is no reason not to accept the evidence, particularly given the evidence of the appellant at the hearing.  In cross examination, when the appellant was asked as to whether he blamed the first respondent for the earlier death than otherwise of his mother, and he was asked whether he held that view at the time of his mother’s funeral, he responded, “I held that view from the moment she took my mum.”  He confirmed that he still held that view during the hearing of the appeal.
72. [72]
    The version as to what was said to have been given in the eulogy is not inconsistent with that view.

Domestic Violence

73. [73]
    The appellant submits that there was no domestic violence, saying he thought that domestic violence was ongoing abuse.
74. [74]
    Clearly the appellant does not realise that his conduct, even if it only consisted of the conduct which he admits in this appeal (grabbing his sister by the neck and describing at a public gathering the first respondent’s treatment of their mother as cruel, criminal and reprehensible) could amount to conduct which justified an order being made.
75. [75]
    In addition there was other evidence which was not challenged which supports the order.
76. [76]
    The appellant does not challenge the Magistrate’s finding of the text messages to be “intimidatory”.  An excerpt from the text messages sent includes:

• “But you’re on the road to ruin.  God’s retribution will see your world crash.  Your only chance for god’s mercy, is to return the olds home.  Don’t say I didn’t warn you;”
• “God can get you in ways I could not contemplate.  Karma is coming;”
• “Stuff you bitch;”
• “Who was the dumb munt got u [sic] to do an affidavit? U dug yourself a pit of shit with that affidavit.  U could serve many years prison time for the perjury in the affidavit;”
• “…but now I won’t be leaving till I die, to fuck u n sue up… I’ve got the time n resources to pursue u in court, u could lose everything....U ring Bupa, mums comn home...or I spend 70K on lawyers to cripple you, no brainer;” and
• “It seems the longer u stay with [your partner], the more stupid you become...U want to play hard ball, I have nothing to lose.  U lose your CPA title, your licence n do jail time for perjury.  Return mum home or face the consequence s [sic].  Dad has past n I’m tired of this confrontation.”

77. [77]
    A review of the messages supports the Magistrate’s finding and the finding that those messages constituted domestic violence.  Domestic Violence is defined to include behaviour which is “emotionally or psychologically abusive”^[8] is defined to include behaviour towards another person that “torments, intimidates, harasses or is offensive to the other person.”^[9] 
78. [78]
    In any event, the determination of that is a subjective matter; the relevant question being the effect of the behaviour on the person.  In her evidence, the first respondent says that after the incident on 8 October 2019 at the nursing home she remains afraid of the appellant that he might try to assault her or try to kill her.  She says she has ongoing nightmares of that incident.

“Necessary or desirable”

79. [79]
    As his primary ground of appeal, the appellant challenged whether the making of the order was necessary or desirable.
80. [80]
    In deciding this the court is required to consider the principles mentioned in s 4.  Section 4 requires the DV Act to be administered “under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”  Further, subsection 2(a) requires that people who “fear or experience domestic violence should be treated with respect and disruption to their lives should be minimised.”
81. [81]
    The issue for the court is not simply whether an aggrieved wants an order to be made, or indeed whether the aggrieved would feel better if an order was made, but whether the making of such an order is necessary or desirable, specifically for the purpose of protecting the aggrieved from domestic violence.
82. [82]
    The Magistrate refers to the appellant’s past conduct including acts of physical violence and a course of conduct designed to intimidate and frighten the first respondent as sufficient in finding the order is both necessary and desirable.  This was informed by:

“[the appellants] lack of remorse, and [the appellant] embarked on the course of conduct which included inappropriate text; his conduct at the mother’s funeral, which included him having a friend read out a eulogy which named [the first respondent] as the cause of the mother’s death; physically grabbing [the first respondent] at the nursing home, causing both physical and emotional harm; a credible possibility that he had, in fact, damaged [the first respondent’s] car whilst it was parked at the nursing home; and, further, no acknowledgment from [the appellant] in his part of the wrongdoing, including other inscrutable statements about retribution from God.”

83. [83]
    The appellant submitted an order was not necessary as there was no ongoing relationship with his sister, that he only ever saw her accompanied with the parents and both parents have since passed.
84. [84]
    The Magistrate did not accept this submission and considered there to be sufficient evidence to draw an inference that domestic violence may occur again in the future.  The Magistrate referred to several factors including the familial relationship and the fact that the first respondent is the executrix of the mother’s estate, which estate includes the house in which the appellant lives.  Further, the appellant is of the belief that there are other wills executed by their mother that he is aware of or had in his possession and to which he is a beneficiary.  The Magistrate found that there was likely to be a need for ongoing contact between the appellant and the first respondent.
85. [85]
    The Magistrate also correctly considered the appellant’s lack of remorse; continuing drug and alcohol which may affect his capacity to self-regulate his emotional state; and the familial relationship between the parties.
86. [86]
    The Magistrate made a finding of satisfaction as required by a 37(1)(c) of the DV Act and, in the circumstances, it could not be said that there was a failure by the Magistrate to correctly exercise the discretion.
87. [87]
    I am satisfied that the circumstances justify the conclusion that a protection order was necessary and desirable.
88. [88]
    The appeal against the grant of that order against the appellant is dismissed.

Costs

89. [89]
    The first respondent seeks her costs of the appeal in an amount of $7,669.10.  A breakdown of this amount is contained in the annexure of the outline of argument of the first respondent.
90. [90]
    Section 142(2) of the DV Act expressly provides that the UCPR applies to an appeal under the act.  It follows that the relevant provisions of the UCPR govern the issue of costs of an appeal under the DV Act. 
91. [91]
    Chapter 18, Part 3 of the UCPR provides for procedures in relation to an appeal made to the District Court.  Rule 785 in that part provides that Part 1 (of Chapter 18) applies to appeals under this part with the exception of several express rules.  Relevantly, r 766(1) and r 771, within Part 1, are not excluded.
92. [92]
    The first respondent in seeking its costs in an amount of $7,669.10 relied on rule 766(1)(d) which 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 further 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.”
93. [93]
    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.
94. [94]
    Within Chapter 17A, r 681 provides that the “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.”  In the present case, the starting point will be that the costs of the appeal follow the event unless ordered otherwise.
95. [95]
    There is nothing in the findings of the Magistrate below or the exercise of any discretion which gave any support to the appeal.  Accordingly, I consider that the costs should follow the event and an order should be made for the appellant to pay the first respondent’s costs.
96. [96]
    The issue is whether the order should be made in the amount claimed by the first respondent or for the costs to be assessed on the standard basis.
97. [97]
    Within Chapter 17A, r 687(1) provides that “If, under these rules or an order of the court, a party is entitled to costs, the costs are to be assessed costs.”  Rule 687(2) permits that the court may order a party to pay an amount of costs fixed by the court, instead of assessed costs.  District Court Practice Direction 3 of 2007 provides that the court will fix costs where it “will avoid undue delay and expense.”^[10]
98. [98]
    Given the circumstances of this appeal, it would be in the interests of the parties for the Court to move to fix the costs, thereby avoiding the additional costs of the assessment process and any potential dispute in that regard.
99. [99]
    In proceeding to do so, as observed by the Court of Appeal in Goodwin v O'Driscoll & Anor, “fixing of costs is intended as a summary determination of what is fair and reasonable for costs in the circumstances.  It is not intended to mimic an assessment of costs.”^[11]
100. [100]
     Tamberlin J in Nine Films & Television Pty Limited v Ninox Television Limited, referred to the need for the approach to be “logical, fair and reasonable and should only be exercised when the Court considers that it can do so fairly as between the parties.”^[12] The approach permitted by the rule has been described as “a much broader brush than that applied on taxation.”^[13]
101. [101]
     The annexure to the first respondent’s submissions provides the following breakdown of the costs claimed:

102. [102]
     In my view, full allowance should be given for the costs incurred by way of counsel’s fees and outlays, totalling the amount of $4,319.57. 
103. [103]
     The amount to be allowed by way of fees of the first respondent’s solicitors in accordance with Schedule 1 of the UCPR requires a broader brush approach.  The total amount claimed was $3,379.53 and included in that calculation was an amount of $967.20 by way of an estimate of anticipated costs.  No breakdown was provided by reference to individual items within Schedule 1.  Schedule 1 of the UCPR, in addition to individual amounts for work undertaken, permits the inclusion of an amount for a solicitor’s general care and conduct of a proceeding and the inclusion of amounts for items not otherwise included in the schedule as the registrar or costs assessor considers reasonable.^[14]  It is not known what amounts, if any, are attributable to such items.
104. [104]
     An appropriate award of costs would be to fix the costs payable by the appellant to the first respondent in an amount of $6,000.00.
105. [105]
     For these reasons, I make the following orders:

1. 1.Appeal dismissed.
2. 2.The appellant pay the first respondent’s costs of the appeal fixed in the amount of $6,000.00.