HIK v HCA (No. 2)[2024] QDC 163

DISTRICT COURT OF QUEENSLAND

TABLE OF CONTENTS

Overview2

What is the relevant legal framework governing a decision to order costs?3

Should I exercise my discretion to make an order other than that the costs follow the event?3

What are the orders?5

Overview

1. [1]
   On 22 February 2024, following a two-day contested hearing at which both the Appellant, who I will refer to as HIK, and the Respondent, who I will refer to as HCA, gave oral evidence, the learned Magistrate at Maroochydore made a protection order against the HIK under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Protection Order”).  The Protection Order named HCA as the aggrieved.  On 9 September 2024, I set aside the learned Magistrate’s decision to grant the Protection Order and dismissed the application for the protection order made by HCA.  I did so on the basis that the learned Magistrate erred in that:

   1. the learned Magistrate failed to provide adequate reasons with respect to the findings that HIK had committed acts of domestic violence;
   2. having regard to the incontrovertible facts, the findings of domestic violence were unreasonable and reached in error;
   3. the learned Magistrate failed to provide adequate reasons with respect to the finding that a protection order was necessary or desirable to protect HCA from domestic violence;
   4. the learned Magistrate erred in law in considering who was the person in the relationship most in need of protection under s 4(2)(e) of the Domestic and Family Violence Protection Act 2012 in circumstances where:
      1. HIK made no allegations of domestic violence;
      2. the evidence does not support a finding that HCA committed an act of domestic violence against HIK; and
      3. there was no evidence that HCA was committing acts of violence against HIK;
   5. the learned Magistrate failed to provide adequate reasons with respect to the learned Magistrate’s decision to name the children of HIK and HCA in the Protection Order.
2. [2]
   HIK submits that HCA should pay his costs of the appeal.  This is opposed by HCA.  I gave directions about the provision of written submissions on this issue.
3. [3]
   I have considered the affidavit material provided by each party with respect to this issue, and their written submissions.  For the reasons set out below, HIK is entitled to have his costs paid by HCA and it is appropriate that they be fixed at $7,723.56.  These reasons should be read together with my reasons for setting aside the decision of the learned Magistrate and dismissing the application for a protection order.

What is the relevant legal framework governing a decision to order costs?

4. [4]
   Costs are a creature of statute.  They can only be awarded in the circumstances stipulated by the legislature: Knight & Anor v FP Special Assets Limited & Ors [1992] HCA 28; (1992) 174 CLR 178, 182-3; Amos v Monsour Legal Costs Pty Ltd [2007] QCA 235; [2008] 1 Qd R 304, 314 [34]. 
5. [5]
   Section 169(1) of the Domestic and Family Violence Protection Act 2012 sets out the powers of this Court as the appeal court deciding the appeal.  It does not expressly include the power to award costs.  That said, in my view there is a power to award costs: s 142(2) of the Domestic and Family Violence Protection Act 2012 and rr 782, 785, 771 and chapter 17A of the Uniform Civil Procedure Rules 1999 (Qld). 
6. [6]
   The power to award costs is governed by chapter 17A of the Uniform Civil Procedure Rules 1999.  Within that chapter:

   1. r 680 provides that a party to a proceeding cannot recover any costs of the proceeding from another party other than under the Uniform Civil Procedure Rules 1999 or an order of the court;
   2. r 681 relevantly provides that 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; and
   3. r 687 empowers the court to fix an amount for costs.
7. [7]
   As such, in the present case, the starting point is that the costs of the appeal follow the event unless ordered otherwise.  The issue for my determination is whether I should order otherwise.

Should I exercise my discretion to make an order other than that the costs follow the event?

8. [8]
   The discretion to order costs must be exercised judicially and consistently with the purpose of the power.  Costs will generally follow the event unless there are special or exceptional circumstances that warrant depriving a successful party of its costs: Queensland Racing Integrity Commission v Endresz; Racing Queensland Board v Endresz [No 2] [2024] QCA 123, [4], citing Orr v Director of Proceedings on Behalf of the Health Ombudsman [No 2] [2024] QCA 106 at [2]; Courtney v Chalfen [2021] QCA 25; Speets Investment Pty Ltd v Bencol Pty Ltd (No 2) [2021] QCA 39; and Villan v The Body Corporate for The Winston (Cairns) Community Titles Scheme 37263 [No 2] [2024] QCA 54.
9. [9]
   On 23 September 2024, HCA provided an affidavit and submissions on which she relies to resist HIK’s application for costs.  In the submissions, HCA contends that this is an appropriate case for no award of costs to be made in favour of HIK and for an order that HIK pay her costs.  The circumstances advanced in support of those contentions are that:

   1. HIK failed to comply with procedural directions, therefore increasing the costs incurred by HCA;
   2. HIK has unnecessarily delayed proceedings in this court and the Federal Circuit Court;
   3. HIK has made applications and appeals in both courts with unsupported allegations of HCA’s abilities to parent and the need to protect the children;
   4. HIK has abandoned two previous appeals without adequate notice;
   5. HIK has brought proceedings in the Federal Circuit Court which is not justified by the amount of the claim;
   6. HIK interferes with family reports and then attempts to rely on inadmissible evidence;
   7. HIK has engaged in unnecessarily lengthy and time-consuming litigation in this court to create delays in the Federal Circuit Court;
   8. HCA cannot afford HIK’s court costs; and
   9. HIK sought to delay this appeal being heard.
10. [10]
    HCA’s affidavit contains numerous assertions that are expressed similarly to the grounds on which she relies to support her contentions with respect to costs. 
11. [11]
    Assuming, for present purposes, I was persuaded of the assertions made by HCA and of their relevance, they are to be viewed in a context in which:

    1. most of HCA’s allegations relate to proceedings in a different court;
    2. there is no evidence that HCA incurred legal costs in this proceeding – she represented herself throughout;
    3. HIK enjoyed complete success on all issues in the appeal;
    4. HCA resisted each of the grounds raised in the appeal; and
    5. although the errors were that of the learned Magistrate, the errors are, in part, informed by HCA’s application and supporting material at first instance.  
12. [12]
    In all the circumstances, I am satisfied that HIK should have his costs of the appeal, subject to the following.
13. [13]
    HIK’s solicitor has filed an affidavit setting out costs incurred by HIK.  Excluding costs and disbursements incurred with his solicitor on a conditional basis, the costs incurred by HIK include, but are not limited to:

    1. $1,443, being the filing fee for the Notice of Appeal;
    2. $2,603.40, being the fee for the transcript of the hearing;
    3. $6,600 for Counsel fees for the hearing of the appeal, which fee does not include additional Counsel fees for HIK’s unsuccessful stay application.
14. [14]
    The total legal costs for HIK for the appeal, excluding the stay application, are said to exceed $13,723.66.  Despite this, HIK does not seek an order for costs to be assessed but seeks costs fixed at $7,723.66. 
15. [15]
    Having considered the substantial record from the Magistrates Court, the invoices, and HIK’s submissions about the invoices, I am satisfied that an order fixing costs at $7,723.66 is appropriate in this appeal.   

What are the orders?

16. [16]
    I order that the Respondent pay the Appellant’s costs of the appeal fixed at $7,723.56.