KIQ v BAT (No 2)[2023] QDC 15

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 22 December 2022 I allowed the appellant’s appeal against the making of a temporary protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld).^[1] The temporary protection order had been made in the absence of the appellant.  Further orders were made for the filing by the parties of submissions in relation to any application for costs, in accordance with a timetable that had been agreed to as between the parties.
2. [2]
   The appellant seeks “the costs of and incidental to the appeal to be taxed or agreed”.
3. [3]
   No order as to costs was made on the application for the temporary protection order at first instance, nor are any orders now sought as concerns those original proceedings, consistent with the ex parte nature of those proceedings.
4. [4]
   The appellant’s application for costs is limited to the first respondent to the appeal (henceforth “the respondent”), who had been the applicant for the temporary protection order before the Magistrates Court at first instance.^[2]
5. [5]
   The respondent opposes any order for costs being made. The respondent otherwise submits that if a costs order were to be made, that the first respondent ought to be granted an indemnity certificate pursuant to section 15(2) Appeal Costs Fund Act 1973 (Qld).

The relevant law

6. [6]
   It is not in issue that the Court has the power to make an order as to costs.
7. [7]
   The provisions of section 157 of the Domestic and Family Violence Protection Act 2012 (Qld), as pertain to proceedings for an application under the Act, do not apply to an appeal under the Act.^[3]
8. [8]
   Pursuant to section 142(2) Domestic and Family Violence Protection Act 2012 (Qld), the Uniform Civil Procedure Rules 1999 (Qld) apply to an appeal under the Act. This Court may make an order “as to the whole or part of the costs of an appeal as it considers appropriate”.^[4]
9. [9]
   While rule 681 of the Uniform Civil Procedure Rules 1999 (Qld) has been held to not apply to appeals, it remains that a successful party will usually be entitled to costs in their favour. ^[5]
10. [10]
    Costs are not awarded to punish an unsuccessful party, but to indemnify a successful party.^[6]

The submission of the appellant

11. [11]
    The appellant submits that the costs that have been incurred by the appellant in bringing and conducting the appeal are “not a consequence of any conduct on his part” whereas “the same cannot be said of the respondent in the circumstances”. The factors identified by the appellant in favour of that submission include the following:

1. The application before the Magistrates Court proceeded ex parte;
2. The application was so brought, to proceed ex parte, notwithstanding that each of the parties were to be before the Court six days later in relation to the application for a protection order previously filed by the appellant as against the respondent;
3. Those appearing in the Magistrates Court on behalf of the respondent did not properly inform the learned Magistrate as to the relevant legislative pre-requisites to proceeding ex parte, where there was a duty on the respondent to do so;
4. The appellant was at no time made aware of the indication of the learned Magistrate that it was anticipated that the order would be revisited on the next court date, such that the appellant was not aware there may be some capacity to advance that prospect with the Court;
5. The only option apparent to the appellant was to bring an appeal against the order made; and further
6. It was only upon being provided with a transcript of the ex parte proceedings, for use in preparation of the appeal, and that being only after having filed the Notice of Appeal, that the appellant became aware of the manner in which the hearing proceeded and the comments of the Magistrate as to how it was anticipated the matter may thereafter proceed.

12. [12]
    It is submitted that in the circumstances, further to the appellant having been successful in the appeal, that costs ought to be awarded in favour of the appellant.

The submissions of the respondent

13. [13]
    The respondent’s submissions acknowledge as a matter of principle the ordinary rule that costs follow the event, but submits that here, there are reasons to depart from that position.
14. [14]
    In support of that contention the respondent submits that it was judicial error rather than the conduct of the respondent at first instance which resulted in the appeal being allowed. Further, at the hearing before the Magistrates Court, the respondent was assisted by a duty solicitor. The circumstances of the respondent at the time of the hearing before the Magistrates Court were that she was living in refuge accommodation and had otherwise limited resources. The making of a costs order against the respondent would, it is said, have a significant impact on her ability to meet her costs of living. The respondent also refers to the purposes of the subject legislation.
15. [15]
    The respondent submitted that the appellant’s conduct on appeal, was also of relevance. The respondent had sought leave to amend the grounds of appeal only at the hearing of the appeal, where it was submitted that the amended grounds of appeal were the basis for the appeal having been allowed. Further, the appellant has now in fact, it is said, subsequently consented to the making of a temporary protection order, such that the appeal process has served no purpose other than to delay the matter proceeding to hearing as concerns the issuing of any final protection order.
16. [16]
    The respondent further submits that, in the event of a costs order being made, the Court would exercise its discretion to order that the respondent be granted an appeal costs fund indemnity certificate pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Qld). 

Consideration

17. [17]
    The submissions of the appellant do not indicate that the appellant is seeking costs on an indemnity basis. In any event, and having regard to the respective submissions of the parties, there are no special or unusual features of this case which in my view would justify the award of costs of the appeal to the appellant on an indemnity basis.^[7] In all the circumstances, any order as to costs ought to be on the standard basis, to be agreed, or to be assessed.
18. [18]
    The appellant has succeeded on the appeal. That there was amendment of the grounds of appeal is said to be in part^[8] attributable to the timing of when the transcript of proceedings of the hearing before the Magistrates Court became available, the appellant of course not having been present for such proceedings. The conduct of the appeal was not so unusual as to justify departing from the usual rule that costs follow the event. Notwithstanding the matters raised by the respondent I am of the view that it is appropriate that the respondent pay the appellant’s costs of the appeal on the standard basis, as agreed or assessed.
19. [19]
    However, I am also satisfied that the respondent should be granted an appeal costs fund certificate pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Qld). I am satisfied that the requirements of that section are met. While the submissions that were made by the duty lawyer appearing on behalf of the respondent before the Magistrates Court did not expand upon the law to the extent that may have been desirable, the appeal was, as the respondent submits allowed by virtue of an error of law on the part of the learned Magistrate. There are no other matters as concerns the conduct of the appeal which tell against the exercise of the discretion in favour of a grant of indemnity to the respondent.

Orders

20. [20]
    Accordingly, I make the following orders:

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