BE v PR [No 2][2024] QDC 81

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is the costs decision consequent on the decision given in BE v  PR^[1].
2. [2]
   The appellant submits that he was entirely successful in his appeal.  He submits that costs should follow the event.  Section 157 of the Domestic Violence and Family Protection Act (“DVFPA”) does not apply to appeals and the Uniform Civil Procedure Rules (“UCPR”) do.  He submits the respondent resisted the appeal to the end and filed submissions contrary to the appeal.  It is submitted the respondent acted under an abuse of process.  It is submitted her ouster application was malicious, vexatious and unreasonable particularly given that the Federal Circuit and Family Court of Australia had already refused to deal with the application.  It is submitted that the QPS should pay costs as they acquiesced to a five-year ouster order which was clearly not desirable or necessary.  Indemnity costs should apply because of the conduct of the respondent and the QPS.  Total costs of $14,435.08 are sought.
3. [3]
   The respondent submits that the appellant was not entirely successful.  The matter was remitted to the Brisbane Magistrates Court for a retrial.  It is submitted that the appellant denied access to the respondent to the property to collect the equipment.  The respondent says she is on Centrelink payments and can not afford to pay costs.  The outcome is not within her control.
4. [4]
   The Queensland Police Service submits that neither the Commissioner nor the QPS are a party to this appeal.  QPS concedes that the Court has the power to award costs under r 766 of the UCPR.  It concedes that a successful party would ordinarily be entitled to their costs but the entirety of the circumstances needs to be considered.
5. [5]
   The QPS submits that the application for the ouster condition under s 63 of the DFVPA is an entirely separate cause of action to the matter before the Family Court.  It is submitted that any error brought on in the Magistrate’s decision was not the conduct of the prosecutor.  It is submitted that the police prosecutor made appropriate submissions concerning the appellant’s filing of material.  It submits that the appellant was not entirely successful in his appeal.  It is also submitted that it is relevant the appellant amended his notice of appeal 11 days before the hearing.  It is submitted that the matter was listed for mention on 29 April 2024.  The QPS was served with the notice of appeal on 15 April 2024.  On 10 May 2024, the Commissioner exercised his right not to be a party to these proceedings pursuant to s 167 of the DFVPA.  The QPS had no right to represent the respondent at the appeal hearing.  It is also submitted that the costs sought are excessive.

Discussion

6. [6]
   Section 157 of the DFVPA 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.
7. [7]
   This section does not apply to appeals.^[2] Indeed it is common ground that the UCPR apply to appeals under the DFVPA.      
8. [8]
   UCPR 766(1)(d) provides that the Court of Appeal may make the order as to the whole or part of the costs of an appeal it considers appropriate.
9. [9]
   In my opinion there is a power to make a costs order against person who is not a party to the proceedings. In Knight v FP Special Assets Ltd^[3], the High Court held that s 58 of the Supreme Court Act 1867 (Qld) and O 91 r 1 of the Rules held that the rule was not confined to the parties to the proceedings.  The rule conferred jurisdiction to make an order for costs against non-parties. 
10. [10]
    However it is unusual to make such an order and such an order is only made in limited circumstances.
11. [11]
    In light of the fact the QPS was not a party to the proceedings or the appeal, I do not consider I should make a costs order against the Commissioner.
12. [12]
    Costs usually follow the event but there is a wide discretion in the court to make a different order provided the discretion is exercised judicially.^[4] 
13. [13]
    The impecuniosity of a respondent is no basis to refuse the award of costs.^[5]  
14. [14]
    The Appellant was successful in this case. He succeeded on most of his grounds– but not all of them. The respondent opposed the appeal.
15. [15]
    I am not prepared to find in light of the concomitant jurisdictions that the respondent’s original application was an abuse of process without further evidence or cross-examination of the respondent on the issue.
16. [16]
    Although the amendment to the application came from the bench during submissions, the police prosecutor on behalf of the respondent ultimately did not dissent from the proposal made by the Magistrate (pages 26 to 27).
17. [17]
    Also, the police prosecutor ought to have informed the Magistrate of the difficulties of making this order.  The police prosecutor should have pointed to the Magistrate that there was only jurisdiction to make orders within the terms of the application filed.^[6]  The Magistrate should also have been told that the property was not the aggrieved’s usual place of residence.^[7]  
18. [18]
    However, in light of the fact the Magistrate was the one that changed the application and not the respondent I do not consider that the respondent should be ordered to pay indemnity costs.  Additionally it seems to me that the costs sought by the appellant are on the high side.
19. [19]
    The appellant failed to file an affidavit in compliance with the directions made in the Magistrates Court. He has left it until this court to file fresh evidence which was important for the disposition of the appeal. The respondent as a result was required to file further material in this court to answer this fresh evidence.    
20. [20]
    Weighing up all matters, in the exercise of my discretion, I have determined to order that the respondent pay 50% of the appellant’s costs of and incidental to the appeal on the standard basis as agreed or assessed.

Order

21. [21]
    I order that the respondent pay 50% of the appellant’s costs of and incidental to the appeal on the standard basis as agreed or assessed.