AVI v SLA (No 2) [2019] QDC 207

DISTRICT COURT OF QUEENSLAND CITATION: AVI v SLA (No. 2) [2019] QDC 207 PARTIES: AVI (appellant) v SLA (respondent) FILE NO/S: 1951/19 DIVISION: Civil PROCEEDING: Appeal pursuant to s 169 of the Domestic and Family Violence Protection Act 2012 (Qld) ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 18 October 2019 DELIVERED AT: Brisbane HEARING DATE: On the papers. Appellant’s submissions dated 10 October 2019. Respondent’s submissions dated 15 October 2019. JUDGE: Smith DCJA ORDER: 1. I order the appellant pay the respondent’s costs fixed in the sum of $5,000.00. 2. I dismiss the appellant’s application for an indemnity certificate. CATCHWORDS: FAMILY LAW – DOMESTIC VIOLENCE – COSTS- where appeal unsuccessful- who should pay the costs (if any)- whether appeal costs fund certificate should be granted Appeal Costs Fund Act 1973 (Q) s15 Domestic and Family Violence Protection Act 2012 (Qld) ss 142, 157 Domestic and Family Violence Protection Rules 2014 (Qld) r 3 Uniform Civil Procedure Rules 1999 (Q) rr 681, 766, 785 AVI v SLA [2019] QDC 192 cited BAK v Gallagher (No2) [2018] QDC 132 cited HZA v ZHA [2018] QDC 125 applied Lachlan v Hartley [1980] Qd R 149 cited Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 cited Nerinda Pty Ltd v Redcliffe City Council [2018] QCA 196 cited -- 1 of 4 -- 2 Northern Territory v Sangare (2019) 93 ALJR 959; [2019] HCA 25 Urquhart v Partington [2016] QCA 199 applied COUNSEL: Mr Lake for the appellant Solicitors for the respondent SOLICITORS: Murdoch Lawyers for the appellant Bouchier Khan Lawyers for the respondent Introduction [1] This is the costs decision consequent on the decision given in AVI v SLA.1 On 2 October 2019 I ordered that the appeal be dismissed and the decision made in the Magistrates Court be confirmed. Appellant’s submissions [2] The appellant submits that the Uniform Civil Procedure Rules (“UCPR”) apply to an appeal under the Domestic and Family Violence Protection Act 2012 (“the Act”) by reason of s 142 of the Act. It is submitted the court “may make the order as to the whole or part of the costs of an appeal it considers appropriate”. [3] The appellant submits that in this matter each party should bear its own costs because of the public interest character of the matter and the respondent’s conduct of the appeal. It is submitted the Act is protective in nature and the sui generis character and public interest nature of the Act are relevant considerations. It is submitted that the respondent’s conduct in the appeal is relevant. For example, the respondent submitted to the court that the respondent was not cross-examined on the Zimbabwe incident which was not correct. Further the respondent ought to have conceded that the appellant’s reference to “beyond reasonable doubt” was an error of law. The respondent also re-agitated the “dismissal” claim in the appeal. [4] In the circumstances, it is submitted each party should bear its own costs. It is relevant that the appeal was not plainly hopeless or doomed to fail. An error of law was found. [5] If the appellant should bear some or all of the respondent’s costs then an appeal costs fund certificate ought be granted under s 15(2) of the Appeal Costs Fund Act 1973 (Qld). Respondent’s submissions [6] The respondent on the other hand submits that the starting point is that costs should follow the event. The respondent was successful in the appeal and the appellant has not advanced any special circumstances sufficient to depart from the ordinary rule. Whilst an error of law was found, the error was immaterial. Although the matter could be classed as public interest litigation, this was a private application. The appellant alleged numerous acts of violence occurred and these were found not to have occurred. The respondent has borne the cost of defending the proceedings and 1 [2019] QDC 192. -- 2 of 4 -- 3 the appellant has been entirely unsuccessful. A fixed amount in the sum of $6,019.42 is sought. Discussion [7] It is common ground between the parties that the UCPR apply on the issue of costs. [8] This is because section 142 of the Act provides: “142 Procedure for proceeding under this Act (1) The Domestic and Family Violence Protection Rules made under the Magistrates Courts Act 1921, section 57C apply for— (a) a proceeding in a court under this Act; or (b) the registry of a court in relation to a proceeding under this Act. (2) The Uniform Civil Procedure Rules 1999 apply to an appeal under this Act. (3) To remove any doubt, it is declared that the Childrens Court Rules 1997 and the Uniform Civil Procedure Rules 1999 do not apply to a proceeding in a court under this Act.” [9] In HZA v ZHA2 Devereaux SC DCJ noted that section 157 of the Act and the Domestic and Family Violence Protection Rules 2014 (Qld) do not apply to an appeal under the Act by reason of rule 3. His Honour’s decision was followed in BAK v Gallagher (No2)3. [10] I agree with their Honours because of Rule 3. [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.” [12] In Urquhart v Partington4 the Court of Appeal held that rule 681 of the UCPR does not apply to appeals but the general principle that the successful party is usually given costs in its favour remains applicable. [13] Further, in Oshlack v Richmond River Council5 it was held that the general rule is that the successful party should have its costs,6 but the power to award costs is subject to the discretion of the court, provided it acts judicially.7 [14] In BAK v Gallagher (No. 2)8 Muir DCJ noted that the starting point is that the cost of the appeal would follow the event unless ordered otherwise. [15] In HZA v SHA9 Devereaux SC, DCJ noted that relevant matters to the exercise of the discretion in an appeal of this type might include the public interest nature of the 2 [2018] QDC 125. 3 [2018] QDC 132 at [15]-[16]. 4 [2016] QCA 199 at [8]. Followed in Nerinda Pty Ltd v Redcliffe City Council [2018] QCA 196. 5 (1998) 193 CLR 72; [1998] HCA 72. 6 (1998) 193 CLR 72; [1998] HCA 72 at [1] per Brennan, CJ; McHugh J at [67]; Kirby J at [134]. 7 (1998) 193 CLR 72; [1998] HCA 72 per Kirby J at [134]. Also see Northern Territory v Sangare (2019) 93 ALJR 959; [2019] HCA 25 at [24]. 8 [2018] QDC 132 at [24]. 9 [2018] QDC 125 at [10]. -- 3 of 4 -- 4 proceeding under the Act, particularly where a police officer acts under section 100 of the Act. This is because the preamble to the Act notes its main objects and principles to be applied when administering the Act are to focus on the safety, protection and wellbeing of people who fear or experience domestic violence with a deliberate engagement with the criminal law.10 I have taken these matters into account in reaching my decision. [16] However, in this case the fact is the respondent was wholly successful and was put to the expense of responding to the appeal. The appellant’s evidence was not accepted with respect to a number of alleged acts of domestic violence. Whilst an error occurred with respect to the standard of proof it was immaterial. [17] It is my assessment that the acts relied upon in 2018 were never going to be sufficient to reach the conclusion that acts of domestic violence had occurred, in light of the state of the evidence. I did not consider the respondent’s conduct of the appeal to be unreasonable. It is my view the appeal from the points of view from both parties was appropriately conducted. The respondent conceded the Magistrate should not have used the term “beyond reasonable doubt” and the respondent’s focus on the Zimbabwe incident was that no evidence was adduced orally supporting the contention that the incident did occur. The “dismissal” claim was not pressed in oral argument. [18] In all of the circumstances I do consider that costs should follow the event and I propose to order the appellant pay the respondent’s costs. [19] I might say that I considered item eight, i.e. perusing documents including transcripts to be excessive and propose to reduce that amount. [20] In all of the circumstances I have determined that the sum of $5,000 is appropriate. [21] Finally I turn to the appellant’s application for an indemnity certificate. [22] Section 15 (2) of the Appeal Costs Fund Act 1973 (Qld) reposes a discretion in the District Court to grant a certificate where an appeal from the Magistrates Court on question of law is successful. In my view the appeal was not successful and the section is not engaged. [23] However even if I am wrong about this, I would have exercised my discretion against granting the certificate. In this case the appellant was not accepted concerning the alleged acts before 2018. As I have noted, the acts in 2018 could not have amounted to domestic violence. In those circumstances it was not a finely balanced case where a certificate might be granted.11 Orders [24] My formal orders are: 1. I order the appellant pay the respondent’s costs of incidental to the appeal fixed in the sum of $5,000. 2. I dismiss the application for an indemnity certificate. 10 Also see sections 3 and 4 of the Act. 11 Lachlan v Hartley [1980] Qd R 149 at page 151. -- 4 of 4 --