SGB v STG[2024] QDC 137

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is the costs decision consequent on the decision given in SGB v STG; WTS v STG [2024] QDC 128.
2. [2]
   By my order, the appeals of SGB and WTS were heard together. They filed joint submissions and were represented by the same counsel and instructing solicitors. In compliance with my orders of 30 July 2024, written submissions on costs were filed by the appellants (the one set of submissions) on 6 August 2024 and by the respondent on 27 August 2024.
3. [3]
   The appellants seek an order that the respondent pay the appellants’ legal costs of the appeal on the standard basis as agreed or to be assessed. The appellants submit that costs should follow the event and the respondent should pay the appellants’ costs of the appeal on the standard basis because:

1. the respondent’s evidence in relation to a number of his allegations of domestic violence were not accepted by the Magistrates Court or on appeal;
2. the appellants were wholly successful in relation to the appeal and the Court found material error in the decision below;
3. the respondent was legally represented and had the benefit of legal advice from counsel, albeit from different law firms and counsel for most of the duration of the appeal proceedings;
4. the appeal proceedings were unnecessarily prolonged as a result of delays caused by adjournment applications made by the respondent for numerous purposes including awaiting a grant of legal aid, changing lawyers, appealing the parenting orders and seeking leave to appeal to the High Court (which was discontinued after these proceedings were adjourned for that reason);
5. there is no readily apparent reason in the conduct of this appeal why the court would depart from the usual rule that costs follow the event;
6. there were no public interest considerations specifically relevant to this appeal apart from the usual public interest considerations in cases under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act).

4. [4]
   The respondent submits that there should be no order for costs or, in the alternative, if a costs order is made, the respondent makes an application pursuant to section          15 (2) of the Appeals Costs Fund Act 1973 (Qld) for an indemnity certificate. The respondent submits that costs should not be awarded as:

1. delays were caused by ongoing Family Law litigation. There is no evidence the respondent’s applications associated with the Family Court proceedings and subsequent appeals were disingenuous or used to deliberately delay these proceedings;
2. the appellants’ application to adduce fresh evidence contributed to the delays requiring dates for filing of submissions that was ultimately wholly unsuccessful;
3. his legal representatives were funded by a grant of aid from Legal Aid Queensland with the respondent unable to fund legal representation privately;
4. he is a particularly vulnerable member of the community being a quadriplegic confined to a wheelchair;
5. there are strong public policy grounds for not awarding costs against vulnerable and legally aided members of the community who are victims of domestic violence. Such members of the community should not be dissuaded from opposing appeals against the making of domestic violence orders for fear of costs being awarded against them. This is particularly so where there is no longer a power for the Court to issue a certificate, indemnifying a respondent against an award for costs where there has been an error of law in the original jurisdiction.

5. [5]
   The respondent submits that the Justice and Other Legislation Amendment Act 2023 (Qld) repealed section 15 of the Appeals Costs Fund Act 1973 (Qld) with effect from September 2023. As the present appeal(s) were filed in January of 2023, section 15 of the Act still applies to this proceeding by virtue of the transitional provision found in section 33. It is submitted that the court found that there was an error of law by the learned Magistrate. It is submitted that if the court is persuaded to grant an award of costs, an indemnity certificate in respect of the appeal should be ordered.

Discussion

6. [6]
   For the reasons that follow, I am satisfied I should order the respondent pay the appellants’ costs of the appeal^[1]  not including the costs of the application to adduce fresh evidence which was not pursued at the hearing of the appeal after submissions. I am persuaded that the order the respondent seeks under the Appeal Costs Funds Act 1973 (Qld) should be made.
7. [7]
   Section 157 of the Act provides that each party to a proceeding for an application under the Act must bear their own costs although in limited circumstances the court may award costs against the party making the application. This section does not apply to appeals.^[2] The Uniform Civil Procedure Rules 1999 (Qld) (UCPR) applies to appeals under the Act.^[3] The UCPR operate such that this Court sitting on appeal “may make the order as to the whole or part of the costs of an appeal it considers appropriate.”^[4]  While rule 681 of the UCPR has been held not to apply to appeals, it remains that a successful party will usually be entitled to costs in their favour.^[5]
8. [8]
   The power to award costs is subject to the discretion of the court, provided it acts judicially.^[6] 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.^[7] 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.”^[8] 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.^[9] Relevant matters to the exercise of the discretion may include the public interest nature of a proceeding under the Act.^[10]
9. [9]
   The appellants were successful on their respective appeals other than their joint application to adduce fresh evidence. I allowed each appeal as I was satisfied that the learned Magistrate had erred in law. The respondent opposed the appeals but did not cause the circumstances upon which I allowed each appeal.
10. [10]
    In my view, none of the matters raised by the respondent either individually or collectively support a departure from the general rule that costs follow the event although I accept that the respondent should not be ordered to pay costs in relation to the appellants’ application to adduce fresh evidence as it was not ultimately pursued following submissions on the day of the hearing. I accept that this is public interest litigation, and that the respondent is both vulnerable and legally aided. The counter submission of the respondent that “such members of the community should not be dissuaded from opposing appeals against the making of domestic violence orders, for fear of costs being awarded against them” is as per what Martin CJ observed in Conversation Council of Western Australia (Inc) v The Hon Stephen Dawson MLC [2018] WASC 34 that “care must be taken to ensure that the characterisation of proceedings as public interest litigation does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner.” Costs are awarded not to punish an unsuccessful party but, ordinarily, to indemnify a successful party. The respondent’s contention that there is further force in his submission because there is no longer a power for this court to issue a certificate indemnifying a respondent is not relevant to this appeal as there is such a power and each case must be considered on its own factors in determining whether there should be a departure from the general rule. I am not satisfied that any of the factors raised by the respondent warrant a departure from the usual rule. It follows that the appellants are entitled to an order that their costs be paid by the respondent (other than the costs of the appellants’ application to adduce fresh evidence) on the standard basis as agreed or assessed.
11. [11]
    The respondent seeks, in the event of a costs order being made against him, the grant of an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld). At the time of commencement of the appeals, section 15 (2) of that Act provided:

“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.”

12. [12]
    The appeals were commenced prior to the repeal of the above section by the Justice and Other Legislation Amendment Act 2023 (Qld) and the transitional provision is such that section 15 still applies to this proceeding. I am satisfied that the basis upon which the appeals were allowed was an error of law and that there is no matter telling against the exercise of discretion in favour of a grant of indemnity to the respondent.

Orders

13. [13]
    The orders of the court are as follows:

In D No 8 of 2023

1. The respondent pay the appellant’s costs of the appeal, not including the appellant’s application to adduce fresh evidence, on the standard basis as agreed or to be assessed.
2. The respondent be granted an indemnity certificate in respect of the appeal pursuant to section 15 (2) of the Appeal Costs Fund Act 1973 (Qld).

In D No 211 of 2024

1. The respondent pay the appellant’s costs of the appeal, not including the appellant’s application to adduce fresh evidence, on the standard basis as agreed or to be assessed.
2. The respondent be granted an indemnity certificate in respect of the appeal pursuant to section 15 (2) of the Appeal Costs Fund Act 1973 (Qld).