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LAF v AP (No 2)[2022] QDC 104

DISTRICT COURT OF QUEENSLAND

CITATION:

LAF v AP (No 2) [2022] QDC 104

PARTIES:

LAF

(Appellant)

v

AP

(Respondent)

FILE NO/S:

D36/21

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to Domestic and Family Violence Protection Act 2012 (Q)

ORIGINATING COURT:

Magistrates Court at Noosa; Magistrates Court at Toowoomba 

DELIVERED ON:

13 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers. Written submissions by the appellant. Written submissions by the respondent.   

JUDGES:

Smith DCJA

ORDER:

  1. The respondent is to pay the appellant’s costs of the appeal on the standard basis as agreed or to be assessed.
  2. I grant the respondent an indemnity certificate pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Q).

CATCHWORDS:

FAMILY LAW – DOMESTIC AND FAMILY VIOLENCE – Costs – whether power to award costs – whether indemnity costs should be awarded – whether an order fixing costs should be made – whether an indemnity certificate should be granted to the respondent  

Appeal Costs Fund Act 1973 (Q) ss 15, 16

Domestic and Family Violence Protection Act 2012 (Qld) ss 142, 157

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

Uniform Civil Procedure Rules 1999 (Q) rr 681, 766, 785

AVI v SLA (No 2) [2019] QDC 207, cited

BAK v Gallagher (No2) [2018] QDC 132, cited

Chan and Ors v MacArthur Minerals Ltd and Ors [2019] QSC 168, cited

Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; 46 FCR 225; 118 ALR 248, cited

HZA v ZHA [2018] QDC 125 applied

LAF v AP [2022] QDC 66, cited

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, cited

Nerinda Pty Ltd v Redcliffe City Council [2018] QCA 196 cited

Northern Territory v Sangare [2019] HCA 25; 265 CLR 164; 93 ALJR 959, cited

Urquhart v Partington [2016] QCA 199 applied

COUNSEL:

Ms C Ingenito for the appellant

Self-represented respondent

SOLICITORS:

Directly instructed by the appellant

Self-represented respondent

Introduction

  1. [1]
    Consequent upon the decision in LAF v AP[1] the appellant seeks her costs on an indemnity basis fixed in the sum of $28,762.55 and concedes the respondent should be granted a certificate under the Appeals Costs Fund Act 1973 (Q).
  2. [2]
    The respondent opposes any order for costs.     

Appellant’s Submissions

  1. [3]
    The appellant submits that indemnity costs should be awarded as the respondent made allegations without material and wilfully disregarded known facts or established law. The respondent submitted the appellant did not suffer PTSD. It is submitted he made improper allegations regarding the appellant’s solicitor. It is further submitted the respondent made unfounded allegations of fact in the Magistrates Court, including that the appellant had delayed the proceedings. It is further submitted he made unfounded allegations about the appellant’s standing as a lawyer and made unfounded allegations regarding the settlement of the New South Wales action. It is submitted he made incorrect submissions concerning Ms Harbour. It is submitted in effect he acquiesced in the Magistrate’s conduct. It is submitted he was not entitled to bring his application as distinct from a claim for defamation. It is submitted the respondent falsely claimed the appellant filed the New South Wales proceedings two and a half months after the respondent filed child custody proceedings. It is submitted the respondent added unnecessary costs to the appeal by his conduct of it. It is submitted it was the respondent’s evidence which led the Magistrate in the error and contributed to the lack of procedural fairness. It is submitted there are unusual features such as to warrant the award of indemnity costs in this case.

Respondent’s Submissions

  1. [4]
    The respondent submits that the essential reason for the appeal being successful was because of the errors made by the Noosa Magistrates Court. The respondent submits that in large part, the matters raised by the appellant in her submissions on costs are irrelevant to the reasons the appeal was allowed. As to the PTSD issue, the respondent says it is a matter for the appellant to prove through expert evidence. He denies he said the solicitor made any false submissions. He simply raised the point that the appellant capably submitted a number of documents despite allegedly suffering PTSD. Again, it is submitted this is irrelevant to the reason the appeal was allowed. He denied he improperly influenced the Noosa Magistrate’s decision. He points out that he did not order the matter be heard in Noosa. He simply followed court decisions. As to any delay he submits it was the appellant who delayed the hearings by not filing documents. As to the allegations concerning the New South Wales proceedings, the respondent simply gave evidence he resolved them on a commercial basis. As to Ms Harbour, he was not told of the request for the subpoena. He submits he had nothing to do with the judicial unfairness in this matter. He disagrees he added to the cost of the appeal process. He put his trust in the fairness of the system. He is not a lawyer. He was entitled to defend his position. He submits he answered questions honestly and with integrity in the District Court. The appellant may or may not have PTSD, but that is a matter for her to prove. He is of the belief the New South Wales action was in response to family court proceedings.
  2. [5]
    In conclusion, he submits he did not contribute to the judicial errors and submits in any event he doesn’t have the money to pay the costs.

Power to award costs

  1. [6]
    The first issue which arises is whether this court has the power to order costs.
  2. [7]
    Section 142 of the Domestic and Family Violence Protection Act 2012 (Qld) (“DVA”) provides that the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) apply to an appeal under the DVA.
  3. [8]
    In HZA v ZHA[2] Devereaux SC DCJ noted that section 157 of the DVA and the Domestic and Family Violence Protection Rules 2014 (Qld) do not apply to an appeal under the Act by reason of rule 3. His Honour’s decision was followed in BAK v Gallagher (No2)[3] and by me in AVI v SLA (No 2).[4]
  4. [9]
    Chapter 18 Part 3 of the UCPR deals with appeals to courts other than the Court of Appeal. Rule 785 provides that Chapter 18 Part 1 (other than some rules) applies to appeals to the District Court. Rule 766(1)(d) of the UCPR provides that the Court of Appeal (and hence the District Court because of r 785 of the UCPR) “may make the order as to the whole or part of the costs of an appeal it considers appropriate.”
  5. [10]
    In Urquhart v Partington[5] the Court of Appeal held that rule 681 of the UCPR does not apply to appeals, but the general principle that the successful party is usually given costs in its favour remains applicable. 
  6. [11]
    Further, in Oshlack v Richmond River Council[6] it was held that the general rule is that the successful party should have its costs,[7] but the power to award costs is subject to the discretion of the court, provided it acts judicially.[8]
  7. [12]
    In BAK v Gallagher (No. 2)[9] Muir DCJ noted that the starting point is that the costs of the appeal would follow the event unless ordered otherwise.
  8. [13]
    There is no doubt the appellant should be awarded her costs. She has been wholly successful in her appeal. But the next question is whether they should be on the standard basis or an indemnity basis.

Indemnity costs

  1. [14]
    Before an order for indemnity costs may be made, there must be some special or unusual feature to justify a departure from the usual practice.[10] Such features may include wilful disregard of known facts or established law; unnecessary prolongation of the case or baseless or irrelevant allegations of fraud. However the criteria are not closed.[11]

Decision concerning indemnity costs

  1. [15]
    In deciding this question, I have taken into account the submissions made and all of the material before the court on the appeal.
  2. [16]
    In my view, an award of indemnity costs against the respondent is not justified. It is my general assessment that whilst the respondent did press his case firmly, he did not exceed the bounds. Also one must firmly bear in mind I am concerned here as to the costs of the appeal, and not of all of the matters raised in the Magistrates court bearing in mind the ordinary rule there is that there is no order as to costs.[12] One should bear in mind the respondent was self-represented and it is difficult to blame on him any issues of ignorance of the law. I largely accept the respondent’s submissions as to the matters raised by the appellant.
  3. [17]
    In my view:
    1. (a)
      The judicial errors were not of the making of the respondent.
    2. (b)
      The respondent’s position is the appellant may or may not have been suffering PTSD – it was for her to prove.
    3. (c)
      Many of the matters raised by the appellant were irrelevant to the judicial errors in this matter (for example, the family report issue)
    4. (d)
      The respondent was entitled to make submissions that the appellant seemed capable of submitting a number of documents despite her claims of PTSD.
    5. (e)
      The respondent was indeed a “passenger” when the Toowoomba Magistrate reopened the matter in October 2020. The respondent followed the directions of the court.
    6. (f)
      There were delays, mainly because the appellant did not file her material on time.
    7. (g)
      The request for the Harbour subpoena was with the court and not with the respondent.
    8. (h)
      The respondent was entitled to have his application heard in court.
    9. (i)
      The respondent was entitled to give evidence he resolved the New South Wales proceedings on a commercial basis.
    10. (j)
      The respondent was entitled to defend substantive issues of fact raised in the Appellant’s lengthy submissions for the appeal.
    11. (k)
      The respondent was entitled to have an opinion that the New South Wales proceedings were in response to child custody issues.
  4. [18]
    In all of the circumstances bearing in mind that my focus is the cost of the appeal, I exercise my discretion to decline to award indemnity costs.
  5. [19]
    I am also not convinced though that the quantum sought by the appellant is justifiable. I consider they should be assessed with regard to the appropriate scale of costs.  
  6. [20]
    Perhaps the appellant should consider making an application for an ex-gratia payment to the State of Queensland for those costs she has not been able to recover.

Certificate

  1. [21]
    On the other hand, I consider the respondent should be given an appeal costs fund certificate. He made reasonable submissions before me. The appeal was allowed as a result of what happened in the Magistrates Court through no error of his. I am satisfied that the requirements of section 15 of the Appeal Costs Funds Act 1973 (Q) have been met.
  2. [22]
    The fact he cannot pay the costs is not a relevant consideration. If he cannot afford to pay them then he can apply to the fund under section 16(2) of the Act. 

Orders

  1. [23]
    For the reasons given I make the following orders:
  1. The respondent is to pay the appellant’s costs of the appeal on the standard basis as agreed or assessed.
  2. I grant the respondent an indemnity certificate pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Q).

Footnotes

[1][2022] QDC 66.

[2][2018] QDC 125 at [4].

[3][2018] QDC 132 at [15]-[16].

[4][2019] QDC 207.

[5][2016] QCA 199 at [8]. Followed in Nerinda Pty Ltd v Redcliffe City Council [2018] QCA 196.

[6](1998) 193 CLR 72; [1998] HCA 72.

[7](1998) 193 CLR 72; [1998] HCA 72 at [1] per Brennan, CJ; McHugh J at [67]; Kirby J at [134].

[8](1998) 193 CLR 72; [1998] HCA 72 per Kirby J at [134]. Also see Northern Territory v Sangare (2019) 265 CLR 165; 93 ALJR 959; [2019] HCA 25 at [24].

[9][2018] QDC 132 at [24].

[10]Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; 118 ALR 248; 46 FCR 225 at p 230.

[11]Chan and others v McArthur Minerals ltd and others [2019] QSC 168 at [19].

[12]Section 157 of the DVA.

Close

Editorial Notes

  • Published Case Name:

    LAF v AP (No 2)

  • Shortened Case Name:

    LAF v AP (No 2)

  • MNC:

    [2022] QDC 104

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    13 May 2022

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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