FAJ v FJH [No 2][2024] QDC 69

DISTRICT COURT OF QUEENSLAND

1. [1]
   By order made on 19 March 2024,^[1] the Appellant succeeded in his appeal, by having a protection order made against him under the Domestic and Family Violence Protection Act 2012 (“DFVPA”) set aside, with the Respondent’s application being remitted to be determined pursuant to law.
2. [2]
   The Appellant now seeks that the Respondent pays his costs of that appeal, which she unsuccessfully opposed.  It is convenient to note that the Respondent, who has not been legally represented in both the proceedings below and on this appeal, urges the court to refrain from making such an order, having regard to the nature of the underlying proceeding under the DFVPA and her contentions that she proceeded under that legislation in good faith in bringing her application and  that she would be the subject of intimidation and punishment should the order be made.
3. [3]
   It must be recognised that the Respondent’s contentions, as couched in terms of intimidation and punishment of her, are to be put aside as inappropriately misconceived, as it is well recognised that, if available, such an award of costs is made in the nature of compensation for the costs incurred by a successful litigant, rather than by way of punishment of the unsuccessful litigant.^[2]
4. [4]
   The entitlement of the Appellant to seek that compensation by payment of costs has been acknowledged on a number of occasions.^[3]  The essential reasoning lies in understanding that:

   1. the primary rule expressed in s 157(1) of the DFVPA that, subject to limited expressed exceptions, the parties are to bear their own costs, applies to “a proceeding for an application under this Act”, which does not include an appeal brought in relation to any such proceeding;^[4]
   2. such an interpretation is confirmed in understanding that s 157 is to be found amongst, or in the direct context of, provisions relating to the hearing of applications brought pursuant to s 32 of the DFVPA, rather than in Division 5 of Part 5, which provides for such appeals.  Further, it is to be noted that the effect of s 142 (as it appears in Division 2 of Part 5 and is headed “Procedure for proceeding under this Act”) is to distinguish “an appeal under this Act” by specifically providing, in s 142(2), that the Uniform Civil Procedure Rules 1999 (“UCPR”) apply to such an appeal, in contrast to the provisions in s 142(1) and (3), which are to the effect that “in relation to a proceeding in a court under this Act”, the Domestic and Family Violence Protection Rules 2014 apply, rather than the UCPR and the Childrens Court Rules 1997;^[5] and
   3. accordingly and in circumstances where the powers of this Court in respect of an appeal under the DFVPA, as expressed in s 169, do not include any specific power to award costs, such power to do so may be found in s 15 of the Civil Proceedings Act 2011. Consistently with that, UCPR 766(1)(d) (as made applicable to appeals of this kind by UCPR 785) provides that this Court “may make the order as to the whole or part of the costs of an appeal it considers appropriate”.
5. [5]
   Such an exercise of discretion is to be determined having regard to the provisions of the UCPR, particularly those in Division 1 of Chapter 16. That commences with the recognition, in UCPR 681, of the ordinary rule that unless the Court orders otherwise, costs follow the event. Subsequent provisions serve to inform what may be allowed as a reasonable award in particular circumstances and as to the assessment of the appropriate amount to be recovered.  Regard is necessary to all of the relevant circumstances, including any which might warrant departure from the ordinary rule. Generally, it will be appropriate to have regard to the objects and principles for the administration of the DFVPA, but it is not appropriate to have regard to the provisions of s 157, as they are applicable only to limiting the availability of such compensation in different circumstances.^[6]
6. [6]
   There is evidence before the Court that the Appellant has incurred substantial costs, in terms of his legal representation for this appeal and it may be accepted that in some part those costs have been incurred as a consequence of the Respondent’s opposition to the appeal.
7. [7]
   The Appellant succeeded in his appeal, in a primary sense, upon the establishment of an error of law by the Magistrate in application of s 37(2) of the DFVPA. There is nothing in the relevant circumstances to detract from the ordinary rule that this successful Appellant should be compensated for the reasonable costs incurred in achieving that success.
8. [8]
   As was noted in ACJ v AD (No. 2) [2023] QDC 238, because the Notice of Appeal here was filed on 15 November 2022,^[7] and therefore prior to the repeal of Part 4 Division 1, including s 15(2), of the Appeal Costs Fund Act 1973,^[8] the transitional provision in s 33(a), as introduced by the amending legislation, serves to preserve the application of Part 4 Division 1 to this appeal, which was started before the commencement of that provision on 20 September 2023. It may therefore be noted that whilst it would require an application to be made by the Respondent,^[9] consistently with the approach taken in ACJ v AD (No. 2), it would be open to the Court to grant to the Respondent, pursuant to s 15(2), an indemnity certificate in respect of the appeal, thereby engaging the effect and entitlements, as so reserved, in s 16 of the Appeal Costs Fund Act 1973.
9. [9]
   The parties will be further heard as to the orders to be made in accordance with these reasons.