DISTRICT COURT OF QUEENSLAND
CITATION:
PR v KJ (No. 2) [2022] QDC 78
PARTIES:
PR
(appellant)v
KJ
(respondent)FILE NO:
145/21
DIVISION:
Appellate
PROCEEDING:
Determination of costs
DELIVERED ON: 6 April 2022 DELIVERED AT:
Maroochydore
HEARING DATE:
Decided on written submissions without oral hearing; submissions received 14 March 2022
HEARD AT:
Maroochydore
JUDGE:
Cash QC DCJ
ORDER:
1. The appellant is to pay the respondent’s costs of the appeal on the standard basis.
LEGISLATION:
Domestic and Family Violence Protection Act 2012 (Qld), s 142, s 169
Uniform Civil Procedure Rules 1999 (Qld), r 766, r 785CASES:
HZA v ZHA [2018] QDC 125
John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199, [8] and [10]
MNT v MEE [2020] QDC 100, [6]-[11]APPEARANCES:
Hawkes Lawyers for the appellant
ABA Lawyers for the respondent
On 28 February 2022 I dismissed the appellant’s appeal against the making of a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (“DFVPA”).[1] During the hearing of the appeal the respondent indicated she sought her costs in the event the appeal was dismissed. When giving judgment I encouraged the parties to attempt to agree as to costs but gave leave to the parties to make written submissions if necessary. Regrettably, the parties did not reach agreement. The appellant deposes that he was delayed in discussing the costs issue as he sought advice about his prospects of appeal. He says this was delayed while his legal advisers sought the transcript of the appeal hearing and it was not until 10 March 2022 that counsel advised “the prospects of a further appeal succeeding were very low”. I find this surprising. Lawyers familiar with the DFVPA would have known that section 169(2) provides that “the decision of the appellate court upon an appeal shall be final and conclusive”. This means that no appeal lies to the Court of Appeal from a decision of the District Court deciding an appeal from a Magistrate.[2] It is difficult to understand why it took more than a moment to advise there was no avenue to appeal my decision.
[1]PR v KJ [2022] QDC 29.
[2]WBI v HBY & Anor [2020] QCA 24; (2020) 3 QR 399.
None of this much matters because the fact is the parties did not reach agreement. I have considered their written submissions and decided the appellant should pay the respondent’s costs of the appeal on the standard basis. These are my reasons for that decision.
The District Court has the power to make an order about the costs of the appeal. That is because the Uniform Civil Procedure Rules 1999 (Qld) applies to an appeal under the DFVPA.[3] Rule 766(1)(d), which is picked up by rule 785, permits the District Court to make “the order as to the whole or part of the costs of an appeal it considers appropriate”. The well-established principle that “costs are in the discretion of the court but follow the event, unless the court orders otherwise” applies.[4] The respondent was wholly successful in resisting the appeal. The starting point is that she is entitled to be indemnified for the expense of the litigation unsuccessfully pursued by the appellant.
[3]DFVPA, section 142(2). See also MNT v MEE [2020] QDC 100, [6]-[11].
[4]John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199, [8] (citing Sequel Drill & Blast P/L v Whitsunday Crushers P/L (No 2) [2009] QCA 239).
The appellant, however, contends there should no order as to costs. The first reason advanced was that the respondent made allegations in the appeal that were not substantiated. Whether this is true or not, it would not disentitle the successful respondent to her costs. At most it would represent a failure on some minor aspects of the proceeding.[5] The respondent still succeeded in the outcome of the appeal. The next matter raised by the appellant is that he did nothing “vexatious” or of a “trivial nature” in conducting the appeal. This may be an argument against an award of indemnity costs, but it is not enough to avoid liability for costs entirely. The third matter concerns allegations about the respondent that the appellant frankly acknowledges have “nothing to do with the appeal” but which are said to be somehow relevant to whether he should pay the respondent’s costs. The appellant does not say how these matters are relevant. I do not think they are. Of more concern is that the allegations are unproven and presumably denied by the respondent. It would be inappropriate to take them into account without giving the respondent an opportunity to be heard. The last matter raised by the appellant is an assertion that the respondent is very wealthy while the appellant is not. Assuming this to be true, it still does not mean the appellant should be spared responsibility for the costs incurred by the respondent because of the appellant’s pursuit of the litigation.
[5]John Urquhart t/as Hart Renovations v Partington & Anor [2016] QCA 199, [10].
Anticipating he might be ordered to pay costs, the appellant submitted that there should be a further order staying the payment of costs until a proceeding between the parties in the Federal Circuit and Family Court of Australia is decided. To justify such an order the appellant points to his straightened financial circumstances. It is unfortunate that the appellant may have difficult satisfying the order for costs, but that is something he, and his legal advisers, should have considered before pursuing the appeal. I can see no proper basis for delaying the effect of an order for costs.
The respondent seeks that some of her costs should be awarded on the indemnity basis. To support this claim, the respondent has put in evidence some correspondence from September 2021 which invited the appellant to discontinue the appeal with each party to bear their own costs. The respondent submits this was a Calderbank offer, the unreasonable rejection of which gives rise to an entitlement to indemnity costs. That the appellant did not accept the offer is a relevant matter. But refusal of an offer does not give rise to a presumption in favour of indemnity costs. It is always for the court to exercise its discretion having regard to all relevant circumstances, including the refusal, in an attempt to balance the competing aims of appropriately encouraging settlement while not discouraging potential litigants. Factors relevant to the question of whether the refusal was unreasonable will include:
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed; and
(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.[6]
[6]Taken from Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; J & D Rigging Pty Ltd v Agripower Australia Limited [2014] QCA 23; and Hadgelias Holdings and Waight v Seirlis [2014] QCA 325.
There are matters here that would favour the award of indemnity costs, such as the lack of merit to the appeal. But there are factors tending against such an order. These include that the respondent has only ended up in a better position (compared to her offer) because I think she should have her costs. I consider the matter finely balanced and in the exercise of my discretion, decline to award costs on the indemnity basis.
The respondent’s alternative argument is that she should have indemnity costs from 1 March 2022, the day after judgment, because the appellant did not make any reasonable attempt to resolve the issue of costs. I have already mentioned the appellant’s explanation for not discussing the matter until March. But it is the case that on 11 March 2022 the appellant asked the respondent’s solicitors to advise the sum of her costs on the standard basis. This was very late in the day, but it cannot be said there was no attempt at all by the appellant to discuss the issue.
Having regard to these matters it is my opinion that the appropriate order is that the appellant pay the respondent’s costs of the appeal on the standard basis.