ACJ v AD (No. 2) [2023] QDC 238

DISTRICT COURT OF QUEENSLAND CITATION: ACJ v AD (No. 2) [2023] QDC 238 PARTIES: ACJ (appellant) v AD (respondent) FILE NO: 6/23 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court Maroochydore DELIVERED ON: 15 December 2023 DELIVERED AT: Maroochydore HEARING DATE: Decided on the papers without oral hearing HEARD AT: Maroochydore JUDGE: Cash DCJ ORDER: 1. The respondent is to pay the appellant’s costs of the appeal fixed in the amount of $6,600; and 2. The respondent is granted an indemnity certificate in respect of the appeal. CATCHWORDS PROCEDURE – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – where appellant was the respondent to an application for a protection order – where the allegations were contested – where the respondent and appellant filed affidavit material – where the matter was listed for hearing but unable to proceed – where the parties agreed to the application being decided ‘on the papers’ without oral evidence – where the Magistrate’s findings were not supported by evidence – whether costs should be awarded in favour of the appellant – where appellant seeks an order that the respondent pay his costs fixed in the amount of $6,600 – where respondent seeks no order as to costs or if costs are awarded that an indemnity certificate issue – whether a costs order should be made – whether an indemnity certificate should issue. LEGISLATION: Domestic and Family Violence Protection Act 2012 (Qld), s 8, 11, 12, 37, 159, 164, 165, 166, 168, 169 -- 1 of 3 -- 2 CASES: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, [175] HBY v WBI & Anor [2020] QDC 81, [16]-[18] Mechanical and General Inventions Co Ltd v Austin [1935] AC 346, 349 APPEARANCES: B Taylor instructed by Karsas Lawyers for the appellant B McKenzie instructed by KLM Solicitors for the respondent [1] The appellant succeeded in an appeal against the making of a protection order.1 The appeal succeeded largely because of errors in factual findings made by the Magistrate, precipitated by a decision to determine the application ‘on the papers’ without hearing testimony from witnesses. The remaining issue is what order should be made as to the costs of the appeal. [2] The appellant seeks an order that the respondent pay his costs fixed in the amount of $6,600. This represents 75% of his legal fees. The respondent submits there should be no order as to costs, with an alternative position that if a costs order is made there should be a further order indemnifying the respondent pursuant to the Appeals Costs Fund Act 1973 (Qld). [3] The starting point is that an award of costs in an appeal of this kind is governed by the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’).2 The ‘ordinary rule’ is that costs follow the event.3 Here the appellant was wholly successful in the appeal. There would have to be some reason or justification before the appellant would be denied a favourable order as to costs. It is correct that I found the real cause of the problems that resulted in the successful appeal was the decision to determine the application on the papers. The appellant consented to this process despite the obvious difficulties which resulted. While I expressed a preliminary view that it might be appropriate that there be no order as to costs, on reflection the acquiescence of the appellant to this flawed process is an insufficient basis to deny him a favourable costs order. The role of an award of costs to indemnify a successful party is an important consideration and is enough in this case to warrant a favourable order for costs. [4] The appellant has put on evidence as to his legal costs. He proposes the sensible course of making an order for costs in a fixed amount rather than putting the parties to the expense of having costs assessed. The appellant then proposes his actual costs be discounted to reflect the ‘broad-brush’ approach often employed when fixing costs. This is also an approach I favour. There will be an order that the respondent pay the costs of the appellant in the appeal fixed in the amount of $6,600. [5] The remaining issue is whether the appellant can and should be indemnified. At the time this appeal was commenced, the Appeals Costs Fund Act 1973 (Qld) provided in section 15 1 ACJ v AD [2023] QDC 176. 2 For the reasons explained in HZA v ZHA [2018] QDC 125 and MNT v MEE (No 2) [2020] QDC 100, with which I agree. 3 UCPR, rule 681. -- 2 of 3 -- 3 (2) Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal. [6] This provision was repealed by the Justice and Other Legislation Amendment Act 2023 (Qld) with effect from September 2023, but applies to this proceeding by virtue of the transitional provision found in section 33. [7] Of course, section 15 could only apply if the appeal was allowed on ‘a question of law’. While my decision turned upon findings of fact made by the Magistrate, a complaint that there was no evidence to support a finding is an error of law and not of fact.4 In this appeal, the repealed section 15 allows the court to grant an indemnity certificate. This is an appropriate case for grant of such a certificate. While the respondent also acquiesced to the flawed procedure for determining the application at first instance, I accept this procedure was well-intentioned. [8] The orders of the court are: 1. The respondent is to pay the appellant’s costs of the appeal fixed in the amount of $6,600; and 2. The respondent is granted an indemnity certificate in respect of the appeal. 4 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2020) 241 CLR 390, [33], [90]-[91]. -- 3 of 3 --