KAL v DJL (No 2)[2022] QDC 275

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 24 June 2022 the Court upheld an appeal against the granting of a protection order against the appellant in favour of the respondent. The background to the proceeding is set out in the judgment^[1] which I adopt without repeating it here.
2. [2]
   The original proceeding was a privately brought application for a domestic violence protection order in the Magistrates Court. Both parties were represented before the Magistrate and evidence was heard. This Court allowed the appeal because:

   1. (a)
      the act the learned Magistrate relied on as constituting an act of violence, which was a single email sent by the appellant to the respondent’s solicitors, was not found by her to be domestic violence within any of the meanings of that term in the legislation;
   2. (b)
      in respect of allegations concerning economic issues the Court was not satisfied that the respondent had met the onus to establish economic abuse within s 12 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) or otherwise acts of domestic violence within s 8 of the DFVPA;
   3. (c)
      the Court was satisfied that the appellant’s actions towards the respondent, in seeking to have the Courts intervene to make assessments of her mental health in the absence of any medical evidence that this might be warranted, constituted an act of domestic violence within the terms of s 8(1)(b) of the DFVPA; and
   4. (d)
      it was not necessary or desirable to make a protection order where the appellant:

      1. (i)
         had already determined he should not be pursuing this in the Family Court proceedings; and

      1. (ii)
         did not continue his application for a protection order
3. [3]
   After giving reasons, the Court indicated it would hear the parties to costs. It was late in the day and directions were made for filing of written submissions if any application was to be made.
4. [4]
   The appellant husband subsequently filed submissions seeking his costs of the appeal on an indemnity basis.^[2]
5. [5]
   The respondent submits primarily that the discretion that costs not follow the event is justified by the findings on the appeal, but if costs do follow the event, those costs should be ordered to be assessed on a standard basis at the date of the order.^[3]

What is the statutory scheme for costs of an appeal under the DFVPA?

6. [6]
   From their written submissions the parties agree, correctly, that:^[4]

   1. (a)
      by reason of section 142(2) of the DFVPA, the Uniform Civil Procedure Rules 1999 (UCPR) apply to the appeal;
   2. (b)
      rules 766(1)(d) and 785 of the UCPR are the source of the Court’s power to order costs;
   3. (c)
      the general rule is that, whilst discretionary, costs should follow the event. Rule 681 of the UCPR provides relevantly that the costs of a proceeding are in the discretion of the Court but follow the event unless the Court orders otherwise. The practical and ordinary effect of this rule is that the unsuccessful party to a proceeding will be ordered to pay the successful party’s costs;^[5] and
   4. (d)
      the Court is to act judicially in the exercise of the discretion.^[6]
7. [7]
   As recognised in another decision of this Court, this Court should only depart from exercising the discretion in accordance with the terms expressed in the rule if there are “sufficient special circumstances to justify a departure from the ordinary rule as to costs”.^[7]
8. [8]
   Costs are awarded not to punish an unsuccessful party, but, ordinarily, to indemnify a successful party. 

Should the appellant have an order for payment of costs of the appeal?

9. [9]
   The appellant argues he should get his costs because he was successful on the appeal, and usual principles should apply.^[8]  
10. [10]
    The respondent resists an order to pay costs, contending the discretion that costs not follow the event is justified by the findings on the appeal.
11. [11]
    In doing so, the respondent referred to BAK v Gallagher and Anor (No 2)^[9] as standing for the proposition that, when considering the objectives and principles of the DFVPA, appeal proceedings arising from the pursuit of a protection order under the DFVPA can be generally characterised as public interest litigation.^[10] 
12. [12]
    I am not satisfied that the case necessarily stands for such a general principle. Applications for a protection order under the DFVPA can be brought by an aggrieved person, an authorised person for an aggrieved person or a police officer or a person acting under another Act for an aggrieved person.^[11] The active respondent in BAK was a police officer who had brought the original proceedings. Her Honour’s reasons at [33] - [36], from which the respondent’s submission is drawn, include the observation at [36] “such as those in this case”. Such an observation is open to the interpretation that the cases which are brought by police officers, rather than privately brought proceedings are the ones which are the subject of the comments as to public interest.  This interpretation is supported by the specific submissions made by the respondent police officer that his actions in opposing the appeal were motivated by nothing other than his statutory obligation to enforce the law.^[12]Some support for the view that the public interest element may adhere more to proceedings brought by police officers may be gleaned from her Honour’s views in KBE v Queensland Police Service^[13] at [4].
13. [13]
    In any case, even accepting in BAK that the case involved public interest litigation, her Honour ordered the respondent police officer to pay the appellant’s costs of the appeal.^[14]
14. [14]
    In HZA v ZHA^[15]another judge of this Court observed that relevant matters to the exercise of discretion might include the public interest nature of a proceeding under the DFVPA, particularly when a police officer acts under s 100 of the Act.^[16] It seems, however, from this paragraph that his Honour might not limit cases brought under the DFVPA as having a public interest nature to those brought by police officers, having regard to the preamble to the DFVPA, its main objects and the principles to be applied in administering it.
15. [15]
    The marking of litigation as ‘public interest litigation’ is but one factor which goes to the exercise of the discretion, according to the majority decision in Oshlack.  In that case, the appellant, who was the original applicant in the Land and Environment Court, brought proceedings against a local council and a developer seeking to impugn the Council’s consent to a proposed development. Whilst he was unsuccessful at trial, the trial judge made no order for costs, listing a number of considerations including that the applicant’s stance was one shared by a significant number of members of the public, so there was a public interest in the outcome of the proceedings, the basis of the challenge was arguable and it had raised and resolved significant issues about the interpretation and future administration of provisions of the statute.  The Court of Appeal overturned the costs order made by the trial judge. Gaudron and Gummow JJ observed that the trial judge was correct in characterising the nature of the litigation as concerned with public rather than private rights, but that ‘something more’ than the categorisation of proceedings as public interest litigation was needed before a successful defendant could be denied costs and that the factors the trial judge identified were not extraneous considerations.^[17] 
16. [16]
    The preamble to the DFVPA recognises, amongst other things, that living free from violence is a human right and fundamental social value^[18] and the objects include maximising the safety, protection and wellbeing of people who fear or experience domestic violence and ensuring that people who commit domestic violence are accountable for their actions.^[19]
17. [17]
    I am not satisfied that there are, necessarily, public interest considerations arising from the statutory scheme in every case where the application is brought as a private proceeding. 
18. [18]
    However, the other features which the respondent contends for point to relevant factors, including public interest considerations, in the specific circumstances of this case:

    1. (a)
       I found that the appellant had committed an act of domestic violence in seeking to have the Court intervene to make assessments of the respondent’s mental health in the absence of any medical evidence that this may be warranted. This arose, in the proceedings below, as a cross application to the respondent’s original application. It had also been raised in Family Court proceedings;
    2. (b)
       it was only at the outset of the trial that the appellant’s application for a protection order was dismissed after he had sought to withdraw it;
    3. (c)
       the respondent was unable to satisfy me that the protection order was necessary or desirable to protect her from domestic violence in the particular circumstances of the case. This finding was largely predicated on the appellant’s evidence that he would not continue to pursue these issues in the Family Court proceedings (having withdrawn his own application for a protection order); and
    4. (d)
       the objects of the DFVPA refer to the importance of making persons who commit domestic violence accountable for their actions.^[20] 
19. [19]
    In these circumstances, I accept that the defence of the appeal in this case justifies a departure from the usual order that costs follow the event.
20. [20]
    I propose to make no order as to costs.

Should the appellant have costs on an indemnity basis?

21. [21]
    I make some brief observations about the appellant’s claim for indemnity costs.
22. [22]
    The appellant contends his costs should be assessed on an indemnity basis because:

    1. (a)
       the respondent had sought indemnity costs in its opposition to the appeal;
    2. (b)
       the respondent had contended the appeal was weak; and
    3. (c)
       it would be disingenuous, the respondent having sought costs on an indemnity basis, for the respondent not to be ordered to pay costs on an indemnity basis.^[21]
23. [23]
    Of course, what the respondent submitted on costs in submissions is not the test for an order for indemnity costs. That test is that indemnity costs may be awarded where the particular circumstances of a case may involve some relevant delinquency by an unsuccessful party, such that the successful party is more fully or adequately compensated.^[22]
24. [24]
    The appellant does not point to any such delinquency by the respondent to the appeal.  Had the Court determined to make an order in the appellant’s favour (which it is not doing), I record the Court would not exercise a discretion for indemnity costs.
25. [25]
    I make no order as to costs.