DW v KM[2024] QDC 27

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 25 August 2023 I allowed the appeal and remitted the respondent’s application for a domestic violence order to the Magistrates Court.  I made a temporary protection order in the interim.  I reserved the issue of costs and ordered that counsel for the appellant provide further written submissions on that issue. 
2. [2]
   The determination of the appeal was straightforward.  The question of whether costs should be awarded to the appellant is not.
3. [3]
   The appellant is seeking indemnity costs of $27,795, inclusive of disbursements.  In the alternative, costs are sought on a standard basis.
4. [4]
   The respondent submits that it is not an appropriate case for an award of any costs to be made against the respondent.  However, the respondent submits that the appellant’s costs should be borne by her former lawyers, due to their negligent conduct, and misconduct, in appearing for the respondent in the Magistrates Court.
5. [5]
   Further, the respondent objects to the quantum of costs sought by the appellant.
6. [6]
   As a consequence, the hearing in respect of the costs was adjourned to allow the former lawyers for the respondent to be heard on this issue.  The costs hearing took place on 22 February 2024.  Ms E Lewsey, instructed by Jones & Associates, appeared for the appellant.  Mr G R Allan appeared for the respondent pro bono.  Mr D Madsen appeared for Madsen Law Solicitors.

Relevant facts

7. [7]
   The affidavits filed by the parties in respect of the original appeal were relied on in respect of the costs hearing.  In addition, further affidavits were filed in respect of the costs hearing.  The critical affidavits are as follows:

1. Affidavit of Jacob Michael Luhrs, filed 9 February 2023.
2. Affidavit of Tamara Anne Lawton, filed on 9 February 2023.
3. Affidavit of Violet Betty-Jean Boheim, filed on 3 March 2023.
4. Affidavit of Lili Joan Halliwell, filed on 3 March 2023.
5. Affidavit of KM, filed on 31 July 2023.
6. Affidavit of Alexander Ralston Jones, filed on 1 September 2023.
7. Affidavit of KM, filed on 29 November 2023.
8. Affidavit of David Mark Madsen, filed on 15 February 2024.
9. Affidavit of KM, filed on 26 February 2024.

8. [8]
   The affidavit of Jacob Luhrs establishes the following:

• he was a law clerk at Jones & Associates, Level 3, 376 George Street, Brisbane;
• his firm was engaged by the appellant to act on his behalf in response to the respondent’s application for a domestic violence order, shortly before the second review of the matter on 14 November 2022;
• Jones & Associates engaged a town agent in Beenleigh, Mr Bruce Affleck of Affleck Lawton Lawyers, to appear on their behalf at the review on 14 November 2022;
• the matter was then adjourned until 14 December 2022 for further mention.  The temporary protection order was continued at that time;
• on 24 November 2022 Mr Luhrs sought disclosure of the relevant material from Beenleigh Police Prosecutions;
• on 25 November 2022 Mr Luhrs was advised by Beenleigh Police Prosecutions that as the application was a private one, they had no involvement in the matter;
• on 28 November 2022 Mr Luhrs sent correspondence to the Beenleigh Domestic Violence Registry to seek disclosure of the relevant material;
• on 29 November 2022 Mr Luhrs received the relevant material from the Beenleigh Domestic Violence Registry and a request for his office to file a notice of change of address for service;
• on 29 November 2022 he filed a notice of address for service as requested;
• on 13 December 2022 Jones & Associates sent correspondence to Madsen Law in relation to the matter;
• on 13 December 2022 Jones & Associates engaged Affleck Lawton Lawyers to appear as town agent for the mention on 14 December 2022.

9. [9]
   JL-1 to the affidavit of Mr Luhrs is a copy of the Notice of Change of Address for Service dated 29 November 2022.
10. [10]
    Tamara Anne Lawton deposed the following relevant things:

• her firm was engaged by Jones & Associates to appear as their town agent in the Beenleigh Magistrates Court at the mention of the domestic violence application on 14 December 2022;
• on that day local practitioners were informed by the Magistrates Court Registry that the committal hearing and summary hearing call-over in Court 3 would commence at 8.30 am due to the large number of matters listed for mention;
• she attended Court 3 and attended to her obligations in that Court before going upstairs to appear for the appellant in the Specialist Domestic Violence Court.  A little after 9.30 am she attended the domestic violence counter to advise her appearance for the appellant.  She was informed the matter had already been finalised in the absence of the appellant or his legal representatives;
• she went straight into the courtroom to speak with both the prosecutor and depositions clerk, and she was informed that the application for the protection order had been made permanent at the request of Madsen Lawyers who appeared for the aggrieved (respondent in this appeal);
• she tried to mention the matter again and advised the presiding Magistrate that she had instructions to appear for the solicitors on the record.  However, the presiding Magistrate advised her that as the matter had been finalised her principals would need to file an application to vary the protection order.

11. [11]
    Lili Joan Halliwell deposed to the following relevant matters:

• she was the solicitor engaged to act on behalf of KM obtain a domestic violence order.  The application for a protection order was filed on 7 September 2022 in the Beenleigh Magistrates Court; the matter was first brought before the Beenleigh Magistrates Court on 11 October 2022.  The police prosecutor advised the Magistrate that DW had not yet been served with the application, and therefore the Magistrate made a temporary protection order in his absence, and the matter was adjourned to 14 November 2022;
• on 14 November 2022 she attended the Beenleigh Magistrates Court, holding instructions to seek that the temporary protection order be made final in the same terms.  She recalled a male solicitor town agent, whose name she could not recall,^[1] who approached her within the Domestic Violence Specialist Court and advised her that he had been engaged by DW’s solicitor to seek an adjournment for a month in this matter as they had only just received instructions.  The Magistrate granted an adjournment to 14 December 2022;
• on 14 December 2022 she checked in at the domestic violence registry counter at about 8.40 am.  She was told by the registry staff that neither DWnor a legal representative had checked in;
• she waited in the domestic violence specialist courtroom, and checked with the police prosecutor on two occasions after 9.00 am to see if DW or a lawyer had checked in, and she was advised on each occasion “no”. At about 9.15 am the Magistrate’s clerk advised her that Jones & Associates was on the record for this matter;
• at 9.27 am she sent a text message to Violet Boheim, law clerk at Madsen Law, and asked her to call Jones & Associates to see if they were intending to appear at the review.  At 9.31 am Ms Boheim called her back and said that she called Jones & Associates and no one answered her phone call;
• she used her mobile phone to search for Jones & Associates and could not locate a website for the firm.  She received a text message from Ms Boheim advising that she had called the law firm’s website, and there was no answer to the phone call;
• she recalled that the Magistrate had asked the clerk whether DW or a lawyer had checked in and the clerk advised him that neither had.  She recalled that the Magistrate asked her if she had heard from Jones & Associates or whether she had been in contact with them; she advised that she had not;
• the clerk then called DW’s name over the public address system and the court waited for about two minutes.  In the absence of an appearance by DW or a lawyer, the matter was then heard in DW’s absence. She recalled the Magistrate asking her what she was seeking, and she stated that they were seeking that the temporary protection order be made final in the same terms.  The Magistrate then proceeded to make the final order;
• on 14 December 2022 upon her return to her office at Madsen Law at about 10.00 am, she observed an email forwarded to her from Madsen Law reception, bearing the date 14 December 2022 and time of delivery at 8.40 am.  The email in question was sent by Jones & Associates to Madsen Law reception at 7.27 pm on 13 December 2022;
• apart from that email, she did not recall any phone calls or other emails from Jones & Associates.  On 10 January 2023 she received an email serving DW’s notice of appeal;
• Exhibit LJH-3 to this affidavit is the Magistrates Court notice of adjournment, stating that the application had been adjourned for mention on 14 December 2022 at 9.00 am.

12. [12]
    Exhibit LJH-5 to the affidavit is a copy of the email sent from Jacob Luhrs to Madsen Law reception at 7.27 pm on Tuesday, 13 December 2022.  The correspondence was not attached to the affidavit.
13. [13]
    The affidavit of KM filed on 31 July 2023 stated that she did not have the funds to oppose the District Court appeal by the appellant, and she would abide by the decision of the court.
14. [14]
    KM, the respondent, in an affidavit filed by leave on 30 November 2023 said the following relevant things:

• for the purpose of clarification, she confirmed that she gave no instructions to her solicitor, Lili Halliwell from Madsen Law or any other person from Madsen Law to apply for a final protection order on 14 December 2022 at the mention of her application;
• she first learnt about the final protection order being made when Ms Halliwell rang her on 14 December 2022;
• she was not present at court on 14 December 2022;
• she was not at fault for the events that developed on 14 December 2022, nor for the costs incurred by the appellant as a result of the final order of the Magistrate on 14 December 2022;
• her father, BM took over dealing with Madsen Law officially on 17 February 2023, as she was dealing with the stress of having been diagnosed with DCIS breast cancer,^[2] and having to undergo a double mastectomy in March 2023;
• on 19 May 2023 she ceased being represented by Madsen Law as she was unable to afford the legal costs;
• she paid a total of $4,610 in legal costs to Madsen Law;
• she is currently receiving the single parent payment and the family tax benefit from Centrelink, amounting to $1,369 per fortnight;
• she does not receive regular child support.  The appellant owes her $6,520 in child support;
• the approximate total amount of her expenses each fortnight is $1,360;
• her parents often assist her with weekly expenses as she is unable to afford them by herself;
• the court proceedings have “done nothing but weaken my financial ability to raise my child”.

Submissions of the appellant

15. [15]
    The appellant accepted that costs are a creature of statute and therefore can only be awarded where there is a legislative basis to do so.  The Domestic and Family Violence Protection Act 2012 (“DVA”), s 142(2) provides that the “Uniform Civil Procedure Rules 1999 (“UCPR”) apply to an appeal under the DVA.
16. [16]
    Pursuant to r 785, r 766(1)(d) permits the District Court of Queensland to make an order as to the whole or part of the costs of an appeal it considers appropriate.
17. [17]
    This power has been accepted by a number of judgments of the District Court of Queensland.^[3]
18. [18]
    Costs are in the discretion of the court, but follow the event unless the court orders otherwise.  Costs are not awarded to punish an unsuccessful party, but to indemnify a successful party.  The appellant was successful in the appeal and the respondent would not be able to advance any special circumstances sufficient to depart from the ordinary rule.
19. [19]
    The appellant sought indemnity costs of $27,795 (which is inclusive of disbursements).
20. [20]
    Following a determination as to costs, the court if it considered appropriate, may issue an appeal costs fund certificate under s 15(2) Appeal Costs Fund Act 1973 (“ACFA”).
21. [21]
    In conclusion, the appellant submitted the following:

• The starting point is that costs should follow the event.  The appellant was successful in the appeal and the respondent has not advanced any special circumstances sufficient to depart from the ordinary rule;
• The appeal arose due to circumstances outside the appellant’s control; 
• The conduct of the appeal was not straightforward nor expeditious and there was one day of hearing that was completely thrown away due to the actions of the respondent.  The appellant sought those costs be reserved on this date;
• It appears that the respondent received legal advice to technically not file any material in response and not appear on the date that the appeal was first listed;
• On 23 June 2023 the matter was listed for hearing.  There is no appearance at first instance by a lawyer or the respondent.  The matter was stood down and Madsen Law appeared.  During an exchange with the court, Mr Morgan indicated that his firm was not acting for the respondent, that the appeal material was provided to the respondent and that she had determined that she would not respond;
• The respondent was then contacted and she appeared by phone.  Following a discussion with the court, the matter was adjourned;
• The advice that she received, and chose to act upon, is not the fault of the appellant, who was ready to proceed and at all times complied with the directions of the court;
• Further, despite the court adjourning the hearing and providing a further chance for the respondent to file material, part of the material relied upon was filed out of time;
• The appellant has borne the costs of the appeal and has been entirely successful;
• It is submitted that costs could be awarded against the solicitors or an appeal costs fund certificate be issued if the court was not satisfied that the respondent was liable.^[4]

Amended respondent’s outline of submissions

22. [22]
    The respondent objected to paragraph 29 of the affidavit of Alexander Ralston Jones sworn on 31 August 2023.  The assessment of costs contained therein is based on secondary evidence of unproduced documents, namely the tax invoices and/or trust account receipts or trust account ledgers that record the fees and disbursements allegedly incurred and paid by the appellant.  The appellant should establish the amount of the costs he seeks by introducing the best evidence that is available.^[5]
23. [23]
    It is submitted that the court should make either of the following orders:

    1. Order that, pursuant to s 15 of the Civil Proceedings Act 2011 and in accordance with the general law principles applicable to the exercise of the court’s discretion to award non-party costs, the non-party, David Madsen the principal of Madsen Law, the respondent’s former lawyers, pay the appellant’s costs of the appeal either on the indemnity basis or assessed on the standard basis because of the dereliction of duty, misconduct and negligence of his employed solicitor, Ms Lily [sic] Halliwell;
    2. Alternatively, because of the misconduct and/or negligence of Mr Madsen’s employed solicitor, Ms Halliwell, make an order under r 690 of the UCPR that Mr Madsen repay all of the respondent’s costs if such costs are ordered to be paid by the respondent to the appellant.
24. [24]
    Section 15 of the Civil Proceedings Act 2011 provides that a court may award costs in all proceedings unless otherwise provided.  The Court of Appeal in KMB v Legal Practitioners Admissions Board (Qld) (No. 2) [2018] 1 Qd R 500 said that this section is wide enough to provide an order for costs to be made against a non-party.
25. [25]
    The respondent referred to r 690 UCPR, which allows a court to order a lawyer to repay to the lawyer’s client all or part of any costs ordered to be paid by the client to another party if the party incurred the costs because of the lawyer’s delay, misconduct or negligence.
26. [26]
    In respect of the meaning of “negligence” in r 690, paragraph 23.54 of the Law of Costs was quoted, which states:

“Following the (then) equivalent English court rules and the territories in Queensland state that the jurisdiction to order costs against a lawyer is triggered where costs are wasted or incurred through the lawyer’s ‘negligence’.  The extent to which this broadens the availability of the rule-based jurisdiction over the inherent one remains unclear.  In England, the jurisdiction was attracted where costs were wasted by a ‘failure to conduct proceedings with reasonable competence and expedition’ or ‘as a result of any improper, unreasonable or negligent act or omission’.  There the court held that deleting the term ‘misconduct’ was intended to broaden the court’s power, obviating the need to apply the test of gross misconduct laid down in the caselaw.  Instead the ordinary standard of negligence – a failure to act with the competence reasonably expected of ordinary members of the profession – not one requiring proof of gross neglect or serious dereliction of duty, applied pursuant to the statutory or rule based jurisdiction.”

27. [27]
    The respondent accepted that, as paragraph 23.55 of the Law of Costs observed, there are cases in some Australian jurisdictions that have held that the word “negligence” connotes more than ‘tortious negligence’.  It requires professional impropriety or gross negligence.^[6] 
28. [28]
    It is submitted that it does not matter in this case if the alternative construction referred to and approved in other Australian jurisdictions is adopted by the court, as the impugned conduct of Ms Halliwell attributed to Mr Madsen, amounted, in any event, to gross negligence or serious dereliction of duty.
29. [29]
    Reference was made to the judgment of Martin J in The Beach Retreat Pty Ltd v Mooloolaba Marina Ltd [2009] 2 Qd R 356, where His Honour observed that the discretion to order costs must be exercised judicially in accordance with general legal principles pertaining to the law of costs.  The exercise of the discretion comes down to a “fact-specific inquiry informed by various relevant considerations”.^[7]
30. [30]
    The respondent accepted that the appeal arose due to circumstances outside of the appellant’s control.  In such circumstances, it was also accepted that the appellant was entitled to be awarded his costs thrown away due to having to appeal the decision made by the Magistrate on 14 December 2022, subject to satisfactory evidence being adduced that the costs sought had been incurred and were wasteful or thrown away on the appeal and not in relation to any other legal services. 

31. [31]
    However, it was submitted as follows:

    1. Any costs awarded to the appellant should not be payable by the respondent, or in the alternative, the respondent should not be liable to pay any of the appellant’s costs;
    2. Mr Madsen should be ordered to pay any costs awarded to the appellant by reason of the negligence and misconduct of his employed solicitor appearing in the Beenleigh Magistrates Court on 14 December 2022, Ms Lily [sic] Halliwell, whose conduct caused the appeal.
32. [32]
    The respondent makes the following submissions between [30]-[36] of its amended outline:

• The application for a domestic violence order was listed for mention only on 14 December 2022;  it was not set down for hearing on that date;
• A town agent had been engaged to appear on behalf of the appellant’s solicitors, Jones & Associates;
• The town agent was present, in another courtroom, in the Beenleigh court building on 14 December 2022 when the domestic violence application was called on by the Magistrate.  The town agent had instructions to appear at the mention of the application and seek a further adjournment of the hearing of the application to early 2023 on the grounds that correspondence seeking to resolve the matter had recently been forwarded to the respondent’s solicitors;
• There is no basis at all on which any competent lawyer in the position of the town agent who attended the Beenleigh courts on that day on behalf of the appellant’s lawyers, and was unaware that the matter had been called on as she was in another court, could have possibly anticipated when the matter was listed for mention only, that the respondent’s solicitor would make an application at a mention for a “final order” namely a protection order, purportedly relying upon s 39 DVA;
• Whilst Madsen Law did have “standing” instructions which were given to them by the respondent shortly after she retained them on 23 September 2022 to “complete the DVO process”, those instructions plainly did not authorise Madsen Lawyers to make any application for a “final” protection order other than in accordance with the law;
• The statement at paragraph 6 of the Halliwell affidavit that: “On 14 November 2022, I attended the Beenleigh Magistrates Court, and I held instructions to seek that the temporary protection order be made final in the same terms” is misleading in view of the fact that the purpose of both proceedings on 14 November 2022 and 14 December 2022 was for the mention of the matter;
• When the instructions are considered in the context of the nature of the proceedings on both 14 November 2022 and 14 December 2022, and the preliminary wording of the pre-condition that must be satisfied for the Magistrate’s power under s 39 to be enlivened, Ms Halliwell’s evidence as to the instructions she deposes to that she received from the respondent must be accorded no weight for the purposes of this costs application.  Further, her affidavit is silent as to what instructions she had from the respondent on 14 December 2022;
• In fact, as stated above, at no time did the respondent give instructions to Madsen Lawyers to make an application to the court on 14 December 2022 at the mention that the TPO be made final [sic];
• Apart from lacking any instructions from the respondent to make an application for a final order at the mention on 14 December 2022, in point of law, Ms Halliwell had no standing to make such an application at a mention because the court had no jurisdiction to grant it under s 39, or any other section, of the DV Act.  This has been implicitly recognised in the decision by Judge Chowdhury referring to KJW v PQV [2022] QDC 200;
• Nor could any competent lawyer in the position of the town agent, have anticipated that the Magistrate would act beyond his powers as conferred under s 39 of the DVA and make a final protection order, and by doing so, err at law by denying the appellant natural justice by purporting to make an order which was adverse or, alternatively, affected the appellant’s interest in his absence when the appellant’s solicitors Jones & Associates were the solicitors on the record.

33. [33]
    Between [37]-[48] the respondent refers to the errors of law by the Magistrate, including the jurisdictional error and the denial of natural justice.  In particular, the following is submitted:

“[46] Despite the legal errors made by the magistrate, it is submitted that it was a misconduct and/or negligence that is attributable to Mr Madsen that caused the magistrate to fall into error by the respondent’s employed solicitor, Ms Halliwell making the application for the TPO to be made a ‘final’ protection order.

[47] As was adverted to by Judge Chowdhury in his decision, if no application had been made by Ms Halliwell and the matter had been stood down to adjourn for a short period, the town agent for the solicitors for the appellant would most certainly have appeared and the errors that he did make, would not have been made by the magistrate.”

34. [34]
    It was submitted that the respondent was not responsible in any way for the negligent conduct, and the misconduct of her solicitor on 14 December 2022.
35. [35]
    Reference was made to the text Lawyers’ Professional Responsibility 6^th edition (2017) where it was said that “whether a general law or under statute, the standard of care dictates that a lawyer is expected to possess the knowledge of the reasonably competent lawyer of well settled principles of law, and the relevant procedure and rules of court applicable to the client’s needs.”
36. [36]
    It was submitted that Ms Halliwell was under a duty to the respondent and to the court to act in accordance with the law and she did not do so and therefore acted in gross dereliction of those duties.  In particular, it was submitted that she had a duty to the court and the administration of justice not to mislead the court which she did by failing to refer the court to s 39(1) DVA, and by failing to refer the Magistrate to the decision of Sheridan DCJ in KJW v PQV, supra, which had only been published 3.5 months prior to the mention on 14 December 2022.
37. [37]
    Further, as a firm specialising in family law and holding itself out as being competent in that area, Mr Madsen must be taken to have been aware that the provisions of s 39 DVA were only enlivened if the respondent to the application for a protection order [here, the appellant] did not appear before the court that was to hear and decide the application, and the court was satisfied the respondent to the application had been served with a copy of the application.
38. [38]
    The particulars of Ms Halliwell’s impugned conduct that should be attributed to Mr Madsen are set out between [58]-[59].  The criticisms can be summarised as follows:

• Ms Halliwell knew that the appellant was legally represented;
• She had previously appeared at the mention of the application on 14 November 2022 when Mr Bruce Affleck from Affleck Lawton Lawyers appeared as town agent on behalf of the appellant’s lawyers, and sought an adjournment for a further mention;
• She had not had a communication with the appellant’s solicitors that might have informed her whether the application for a protection order that had been adjourned would be opposed;
• She knew that the matter was only set down for mention on 14 December 2022;
• She must have known that the respondent gave no instructions to anyone at Madsen Lawyers to make an application to the court at the mention that the TPO be made final.  Even if the respondent had given such instructions, Ms Halliwell had an ethical duty to comply with the law and the rules to advise the respondent that she would not able to comply with those instructions and that the court would have no power to make a final protection order under s 39 DVA;
• Ms Halliwell knew or ought to have known that s 39 DVA did not apply, that the Magistrate had no jurisdiction to order that the TPO be made a final order, and that she had no standing to make such an application;
• That she did not have in place a reliable communication system so that she could check work emails remotely on a mobile phone and as she had not attended her office before going to court, she did not know if there had been any email received from Jones & Associates after work hours on 13 December 2022;
• She did not know whether the application for a final protection order would be opposed by the appellant;
• She knew or must have taken to have known that the appellant was entitled to be afforded an adequate opportunity to be heard before any final protection order was made, otherwise he would be denied natural justice.

39. [39]
    It is submitted that the impugned conduct of Ms Halliwell, attributable to Mr Madsen, was in breach of at least nine rules in the Australian Solicitors’ Conduct Rules 2012, in particular r 3.1, r 4.11, r 4.13, r 4.15, r 19.1, r 19.4, r 19.6 and r 19.11.
40. [40]
    It was noted that the appellant’s submissions on costs were prepared prior to the commencement of the amendments to the Appeal Costs Fund Act 1973.  Those amendments commenced on 20 September 2023.  Consequently, despite the appeal notice being filed on 9 January 2023 prior to the commencement of the amending Act, the amendments apply to it.  Therefore the Court has no power under that Act to grant the respondent an indemnity certificate.
41. [41]
    The discretion to order a non-party to pay costs was discussed at [70]-[78] of the respondent’s amended outline. Reference was made to Symphony Group Pty Ltd v Hodgson [1994] QB 174.  Six classes of case were identified in that case, including where the non-party is a solicitor whose conduct has led to the incurring of costs in a way which brings it within the statutory criteria for the making of the costs order against the solicitor, or the solicitor’s conduct would justify the order in the exercise of the court’s inherent jurisdiction in relation to the conduct of solicitors.  In addition, one of the classes was where the person’s wrongful conduct had caused the action.
42. [42]
    It was submitted that this case was cited with apparent approval in Burns v State of Queensland & Croton [2007] QCA 240 at [17] and Grocon Constructors (Qld) Pty Ltd v Juniper Developer No 2 Pty Ltd [2015] QSC 33 at [22]-[24].
43. [43]
    Reference was made to the decision of the High Court of Australia in Knight v FP Special Assets Ltd & Ors (1992) 174 CLR 178, in particular the judgment of Mason CJ and Deane J at 192-193.  Their Honours said:

“Obviously, the prima facie general principle is that an order for costs is only made against a party to the litigation.  As our discussion of the earlier authorities indicates, there are, however, a variety of circumstances in which considerations of justice may, in accordance with general principles relating to awards of costs, support an order for costs against a non-party.  Thus, for example, there are several long established categories of case in which the equity recognised that it may be appropriate for such an order to be made.

For our part, we consider it appropriate to recognise a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation.  That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation.  Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made”.

44. [44]
    The respondent submitted that the Court had power to make a costs order against Mr Madsen as the principal of Madsen Law Solicitors, irrespective of whether or not he had personal knowledge of the manner in which Ms Halliwell was conducting the proceedings for an application to seek a domestic violence order:  Kelly v Jowett (2009) 76 NSWLR 405.

Submissions on behalf of Madsen Law Solicitors

45. [45]
    In an amended outline of argument filed 19 February 2024, Madsen Law Solicitors made the following submissions.  It was submitted that there were eight significant failings by the appellant personally and/or his legal representatives.  Those failings render it just and equitable that the appellant bear his own costs.  These failings were:

1. by 24 November 2022 (that is 12 days after being instructed) the appellant’s solicitors still had not read the protection order application.  Had they done so they so they would see at paragraph 1 the address for service of the respondent was care of Madsen Law and they could have contacted the respondent’s solicitor.  Paragraph 5 of the affidavit of Jacob Luhrs shows that the appellant’s solicitors had not read the application because had they done so, they would not have sought disclosure from the police who they assumed had made the application;

2. On 29 November 2022 the appellant’s solicitors filed an address for service, but they did not serve a copy of that address for service on Madsen Law;

3. At 7.27pm on the evening before the mention on 14 December 2022, the appellant’s solicitors sent correspondence on behalf of the appellant.  This was some 2.5 hours after close of business.  The reason why it was not sent during business hours is left deliberately unstated.  DMM-6 exhibited to the affidavit of David Mark Madsen filed 15 February 2024 attaches the letter.  The letter failed to identify the town agent instructed to attend court on 14 December 2022, nor did it unequivocally identify the intention of the appellant to oppose the application and on what grounds;

4. The town agent ought to have checked in and registered with the Domestic Violence Court on behalf of the appellant;

5. The town agent ought to have responded when DW’s name was called on three occasions;

6. The appellant ought to have presented himself in court when his name was called or ought to have made arrangements to attend electronically if there was a good reason why he could not attend in person;

7. The appellant’s solicitor ought to have made themselves contactable during business hours on the day of the mention;

8. The learned Magistrate invited the appellant to make the cost effective method of filing an application to vary the protection order (i.e. varying the date of the order so that it immediately expired).  The appellant instructed his solicitors not to do this and instead to lodge an appeal.

46. [46]
    Reference was made to the Magistrates Court Domestic and Family Violence Protection Act 2012 Benchbook, published in November 2017, said to have been current as of 14 December 2022.  At page 41, paragraph 5.3, it reads:

“Application served and respondent fails to appear

If a respondent fails to appear before the court that is to hear and decide the application for a protection order and the court is satisfied that the respondent has been served, the court may (s 39):

• hear and determine the application in the absence of the respondent”.

47. [47]
    Reference was made to the Explanatory Memorandum for the Domestic and Family Violence Protection Bill 2011.
48. [48]
    It was submitted that the Benchbook revealed there was some uncertainty, at least in Magistrates Court circles, as to what should occur if a respondent fails to appear at a mention, as opposed to a hearing.
49. [49]
    It was submitted that the solicitor appearing for the respondent did not act unethically or unprofessionally toward the appellant in seeking the final order.  The learned Magistrate was clearly satisfied an act of domestic violence had occurred and that an order was necessary or desirable.
50. [50]
    It was submitted that the arguments on behalf of the respondent were specious and misleading.  They ignore the legislative intention of s 39 DVA, and “it superimposes counsel’s own procedure in a situation where a busy court like the Magistrates Court at Beenleigh prefers a speedier dispatch of matters”.
51. [51]
    It was submitted that it would be unfortunate if an order were made requiring KM to pay the appellant’s costs, where the appellant, although successful in having the protection order set aside, failed to comply with the rules and accepted standards.
52. [52]
    It was submitted that the respondent had not established that Madsen Law was responsible for the denial of procedural fairness of the appellant for the reasons given at paragraphs 1-10 in the outline.

Respondent’s further submissions in reply to submissions of Madsen Law

53. [53]
    Reliance on the Domestic Violence Benchbook or the Explanatory Memorandum is completely irrelevant to the issue as Mr Madsen is required to accept the findings that I made when allowing the appeal.
54. [54]
    It was submitted that the critical matter that Mr Madsen had to, but failed to, demonstrate in his submissions or by evidence was that the conduct of his employed solicitor, Ms Halliwell, was not “wrongful conduct” or “conduct that led to the incurring of costs” as explained in two of the classes of case referred to in the decision of Symphony Group, supra.  Alternatively, for the purpose of r 690 UCPR, he had to demonstrate that Ms Halliwell’s conduct on 14 December 2022 was not “misconduct” and/or was not negligent.  He has not done so.
55. [55]
    It was further submitted that “Madsen Law” is merely a business or trading name with no legal identity.  It cannot be the subject of a costs order under r 690 UCPR, or alternatively, under s 15 Civil Proceedings Act 2011.  It is submitted that under the Legal Profession Act 2007 (“LPA”), Mr Madsen is a “legal practitioner director” as defined in s 110 LPA. 
56. [56]
    In accordance with Myers v Elman [1940] AC 282 and Kelly v Jowett, supra, Mr Madsen is personally liable for the misconduct or negligence of Ms Halliwell as set out at paragraphs 52-59 of the respondent’s amended outline, and it is open to the court to make a costs order against Mr Madsen.

Relevant statutory provisions

57. [57]
    Chapter 18, Part 3 UCPR deals with appeals to courts other than the Court of Appeal, including the District Court of Queensland.  Rule 782 states that this part applies to an appeal started to a court other than the Court of Appeal.
58. [58]
    Rule 783 relates to the procedure for appeals to the District Court from the Magistrates Court.
59. [59]
    Rule 785 states that Part 1 of Chapter 18 applies to appeals under Part 3, other than Rules 746, 753, 758, 766(3), 767, 776 and 777.  The power of this court to make a costs order is contained under r 766(1), which states that the court “may make the order as to the whole or part of the costs of an appeal it considers appropriate”.
60. [60]
    Rule 771 states that the costs of appeals and all other matters brought before the court under this part are assessed under Chapter 17A UCPR unless the court orders otherwise.

Relevant authorities

61. [61]
    In John Urquhuart t/as Hart Renovations v Partington & Anor [2016] QCA 199, the judgment of the Court said the following:

“[5] This Court allowed the appeal, set aside the decision below and returned the matter to the Appeal Tribunal.

[6]  On the face of it, the builder was successful in the outcome of the appeal. The builder submits he should therefore have his costs. The owners submit each party should bear its own costs.

[7] In exercising its power to award costs pursuant to s 15 Civil Proceedings Act 2011 (Qld) this Court may, pursuant to r  766(1)(d) Uniform Civil Procedure Rules 1999 (Qld), ‘make the order as to the whole or part of the costs of an appeal it considers appropriate’.

[8] Rule 766(1)(d) applies in appeals, not r 681(1)3 which provides that costs ‘are in the discretion of the court but follow the event, unless the court orders otherwise’. However the general principle that a successful party is usually given costs in its favour, a principle inherent in r 681(1), remains applicable in this Court determining the order as to costs considered appropriate pursuant to r 766(1)(a).

[9] McHugh J explained the rationale for that principle in Oshlack v Richmond River Council:^[8]

‘The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. … The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.’ (citations omitted)

[10] It is apparent from the terms of r 766(1)(d) and its reference to ‘the whole or part of the costs’ that a successful party in an appeal may be awarded less than its costs. However where a party has been successful in the outcome of the appeal the fact that it did not succeed on every issue or ground advanced will not usually warrant a departure from the general principle that costs should follow the outcome of the appeal …”

62. [62]
    In BAK v Gallagher & Anor (No 2) [2018] QDC 132, Muir DCJ, as she then was, made the following observations about appeals to the District Court of Queensland under the DVA:

“[17] Section 142(2) expressly provides that the UCPR apply to an appeal under the DV Act. If parliament had intended that the costs provision of the UCPR did not apply to an appeal under the DV Act it could have legislated accordingly by, for example, expressly excluding Chapter 17A of the UCPR. Or parliament could have included a provision confining the power to order costs on appeal as it has for costs of the applications in the first instance [s 157(2)]. But it did not do any such thing.

[18] It follows that the relevant provisions of the UCPR govern the issue of the costs of an appeal under the DV Act.”

63. [63]
    Her Honour went on to say the following:

“[31] The court has an absolute and unfettered discretion as to costs which must be exercised judicially without caprice, bearing in mind relevant considerations. 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. 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’. 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. The occasions justifying a departure from the ordinary rule have been described as rare and exceptional.”(references omitted)

64. [64]
    Her Honour observed that it was not controversial that the DVA was to be administered under the principle that the safety, protection and well-being of people who fear or who experienced domestic violence, including children are paramount.  Her Honour went on to say the following:

“[35] There is, as the first respondent describes ‘wide ‘public interest’ in the pursuit and outcome of domestic violence applications as the community requires that perpetrators of domestic violence are to be held accountable for their actions and their fellow citizens are able to feel safe in the community and pursue their lives in peace and without fear.

[36]  In my view, appeal proceedings which arise from the pursuit of a protection order under the DV Act such as those in this case can be generally characterised as public interest litigation.” (references omitted)

Consideration

65. [65]
    This case highlights the complicated and fraught nature of domestic violence litigation in this State. 
66. [66]
    It is well known that domestic violence courts at Beenleigh have a very heavy workload, as does the Magistrates Court.  I can understand the pressure on the Magistrate on a busy court day get through a list of matters, but it is still incumbent upon the Magistrate to ensure that natural justice is afforded to all parties.  In my ruling given on 25 August 2023, I observed that the then lawyer for the respondent, Ms Halliwell:

“really should have advised the Magistrate that the respondent did have a lawyer on the last occasion and there really should not have been the haste to make the final order.  The matter should have simply been stood down for the time to see if there was an appearance … “

67. [67]
    It is frequently seen in the Courts that as a matter of professional courtesy lawyers for one party will ask a Court to stand a matter down to see if they can contact the lawyers for the other side. 
68. [68]
    It is important to note that the matter had been called by the Magistrate, and because the town agent, Ms Lawton, was held up in the Magistrates Court callover, failed to appear in immediate response to that call.  Ms Lawton had not been able to check in at the domestic violence counter until after her appearances in the Magistrates Court.  In the circumstances I do not think that Ms Halliwell breached her duties as a solicitor by not asking for the matter to be stood down while she tried to contact the lawyers for the appellant. 
69. [69]
    The criticism of Ms Halliwell by counsel for the respondent at [54] of the amended outline puts the matter too strongly.  Judgments are delivered daily in the Supreme and District Court, and the volume of judgments delivered make it a difficult but important task for legal practitioners to read those judgments, particularly in the areas of law in which they practice.  Having said that, I do not believe a failure of Ms Halliwell to have read the decision of her Honour Judge Sheridan in KJW v PQV [2022] QDC 200 before the mention of 14 December 2022 amounts to negligence.
70. [70]
    She certainly had a duty to assist the Court and to avoid appellable error.^[9]  Having said that, the Magistrate should have known the powers he had to make a final order in the absence of the respondent.  A lawyer who practises in the field of family law is expected to have sufficient knowledge of the legislation, court rules and case law relevant to that area.  Some family lawyers may be experienced in the bringing of applications under the DVA, or resisting such applications.  Quite often parties to proceedings under the DVA are handled by criminal lawyers. I do not think that this failure amounts to the level of negligence required by the reported cases.
71. [71]
    The Magistrates Courts Practice Direction No 4 of 2022 should be amended to make it clear that a Magistrate only has power to make a final order against a respondent if the matter had been set down for hearing, the respondent had been served, and did not appear.  At the moment [44] of the practice direction does not make that sufficiently clear.
72. [72]
    Sometimes legal practitioners have to go to court before attending the office.  These days with modern technology many legal practitioners can access their emails on their mobile phone, but I do not consider it a failure to comply with a lawyer’s professional duty not to have such a mobile phone.  Lawyers for the appellant could easily have contacted Ms Halliwell in business hours on 13 December 2022 to advise her that they were still acting for the appellant, and that they had engaged a town agent to appear at the mention the following day.  Further, such a phone call would have communicated that they were going to send correspondence by email as soon as they could.  Ms Halliwell would have been alerted to expect an email from the appellant’s lawyers, and may have contacted someone at her office to check if such an email had been sent before court began.
73. [73]
    In my view, the real source of this unfortunate litigation is the learned Magistrate failing to set aside the final order he made once Ms Lawton appeared, and advised that she had instructions from the principal lawyers acting on behalf of the respondent.  In such a situation a prudent judicial officer would recognise the error, set aside the order made in the absence of the respondent, and then set the matter down for further mention or hearing at a later date.
74. [74]
    The respondent was not represented at the appeal hearing, but represented by Mr Allan pro bono.^[10]  She is in a difficult position financially in respect of any capacity to pay costs.
75. [75]
    In respect of the specific failings attributed to Ms Halliwell set in [58] of the respondent’s amended outline, in my view it is not correct to say that the respondent did not give instructions to anyone at Madsen Lawyers to make an application for the temporary protection order to be made final at the mention on 14 December 2022.  Clearly on the material the respondent had given Madsen Lawyers instructions to obtain a domestic violence order.
76. [76]
    I do not consider that the impugned conduct of Ms Halliwell amounts to the required level of negligence, let alone that it should then be attributed to Mr Madsen. 
77. [77]
    Mr Madsen referred to a decision of the New South Wales Court of Appeal in Rahman v Al-Maharmeh (No 2) [2021] NSWCA 151 which dealt with whether a “wasted costs order” should be made against the appellant’s solicitors under Civil Procedure Act 2005 (NSW).  In that case, Brereton JA, with whom Meagher and Leeming JJA agreed, observed at [22] that the jurisdiction to make such orders is to be exercised with care and discretion, and only in clear cases.  He observed that courts apply a three stage approach asking the following questions:

1. Has the legal representative of whom complaint is made acted improperly, unreasonably, or negligently?;
2. If so, did such conduct cause the applicant to incur unnecessary costs?;
3. If so, is it in all the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs?

78. [78]
    Mr Madsen in his submissions submitted that the lawyers for the appellant did not take up the suggestion of the presiding Magistrate to seek the vary the order, rather they lodged an appeal to this Court.  No criticism can be made of the lawyers for that; the appellant had a clear ground of appeal, which was ultimately successful. 
79. [79]
    The ultimate cause of the final protection order being made was not the actions of Ms Halliwell, to be imputed to her principal Mr Madsen, but the failure of the Magistrate upon hearing the town agent to set aside his order.  Therefore, I refuse to make any order of costs to be made against Mr Madsen.
80. [80]
    Then I turn to the question of whether the appellant should receive his costs as against the respondent.  I consider that the circumstances of this litigation are unique and special, and it would be unfair to order costs against the respondent. The appropriate order is that each party bear their own costs.  I therefore make no order as to costs.