JKL v DBA (No. 5)[2024] QDC 66

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   I dismissed the appeal in this matter on 22 April 2024^[1] and reserved the decision as to costs until the filing of written submissions.
2. [2]
   As I noted in my reasons on 22 April 2024, this is the tenth Application or Appeal brought against the respondent by the appellant since 2019.
3. [3]
   In JKL v DBA (No. 3) [2022] QDC 163, His Honour Judge Dearden considered an application for costs against the appellant, and his Honour’s summary is apposite:

“Power to award costs on appeal

[3] Costs are a creature of statute and therefore can only be awarded where there is a legislative basis to do so. 

[4] The Domestic and Family Violence Protection Act 2012 (Qld) (“DFVPA”)              s 142(2) provides that the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) apply to an appeal under the DFVPA.  I accept the conclusions reached by Byrne QC, DCJ in NNT v MEE (No. 2) [2020] QDC 100 [7]-[12] and Smith DCJA in AVI v SLA (No. 2) [2019] QDC 207 [7]-[10] in respect of my power to award costs in this appeal.

[5] As Smith DCJA identified in AVI v SLA (No. 2) QDC 207 [11]:

‘Chapter 18 Part 3 of the UCPR deals with appeals to courts other than the Court of Appeal.  Rule 785 provides that Chapter 18 Part 1 (other than some rules) applies to appeals to the District Court.  Rule 766(1)(d) of the UCPR provides that the Court of Appeal (and hence the District Court because of r 785 of the UCPR) ‘may make the order as to the whole or part of the costs of an appeal it considers appropriate.’

[6] UCPR r 766(1)(d) provides:-

‘766 General powers

1. The Court of Appeal –

 …

 (d) may make the order as to the whole or part of the costs of an appeal it considers appropriate.’

[7] UCPR r 771 provides:

 ‘771 Assessment of costs of appeals

The costs of appeals and all other matters brought before the Court of Appeal under this part are assessed under chapter 17A unless the Court of Appeal orders otherwise.’

[8] It is clear therefore that the power to make orders in respect of costs, and the assessment of those costs in an appeal to the District Court under the DFVPA, proceed in accordance with the provisions of UCPR rr 766(1)(d), 771 and chapter 17A.

[9] UCPR r 681(contained with UCPR Chapter 17A) sets out the general rule, namely:-

‘(1) 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.’

[10] The Court of Appeal in John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199 [8] confirmed that:-

‘… 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).’

[11] The High Court in Oshlack v Richmond River Council (1998) 193 CLR 72 [134] confirmed that the general rule is, that the successful party should have its costs, but the power to award costs is subject to the discretion of the court, provided the court acts judicially.

[12] It follows that:-

‘The starting point is that the costs of the appeal follow the event unless ordered otherwise.’

Discretion as to costs

4. [4]
   The appellant has submitted that I should exercise the discretion to not award costs against him for the following reasons:

   1. he sponsored the respondent to emigrate to Australia which involved costs for him;
   2. he is the recipient of Social Security payments and has no funds to meet any costs order;
   3. he is the sole financial provider for himself, his new partner and their infant child; and
   4. the Federal Circuit and Family Court of Australia in its Appellate Jurisdiction declined to order costs against him on 20 December 2021.

Consideration

5. [5]
   The appellant has not identified any issue which warrants departure from awarding costs, particularly considering that:

   1. there was no public interest aspect to the appeal^[2];
   2. the appeal was wholly unsuccessful; and
   3. the appellant’s ability to pay the respondent’s costs is not a relevant consideration.^[3]
6. [6]
   Furthermore, the decision to not award costs by the Federal Circuit and Family Court of Australia is of no relevance to the determination of this application for a number of reasons, but most notably, due to the provisions of s 117 of the Family Law Act 1975 (Cth) which provides that each party to a proceeding should bear his or her own costs.^[4]

Conclusion

7. [7]
   Given that the respondent was funded by Legal Aid Queensland, it is appropriate to award costs on the legal aid basis as set out in the Schedule of Costs attached to the respondent’s Outline of Submissions.

Order

1. The appellant pay the respondent’s costs fixed at $3,001.90.