Domestic Violence Proceedings – Costs on Appeal

Article by Adam Moschella, Criminal Lawyer at Potts Lawyers

 

Given the prevalence of applications for protection orders being filed and heard by the Magistrates Court parties can sometimes be put to unnecessary expense responding to said applications, especially where those applications are then appealed to the District Court.

With most being justified applications by those genuinely requiring protection, some applicants seek orders with the intention of using the order against the responding party to, for example gain an unfair advantage against a party in family law proceedings.

1. Can costs be awarded in domestic violence proceedings?

Traditionally, where applications for protection orders are heard and a Magistrate refuses to make an application, costs can be recovered by the respondent pursuant to section 157(2) of the Domestic Violence Family Protection Act 2012 (DVFP Act).

The Act provides that generally, each party to a proceeding for an application must bear their own costs. However, a court may award costs to a responding party where an application is malicious, deliberately false, frivolous or vexatious. It is important to note that just because an applicant’s application is dismissed, that does not entitle a responding party to recover costs. Rather a positive finding must be made by the Magistrate that the application is malicious, deliberately false, frivolous or vexatious.

2. Can a person recover costs on appeal?

Background

Where applications were appealed to the District Court the case of GKE v EUT [2014] QDC 248 meant that the District Court could not award costs for matters which were appealed as it was not clear as to whether s 157 of the DVFP Act applied to appeals.

Further, the powers of the District Court on appeal as outlined in section 169 of the DVFP Act included no power to award costs and Chapter 17A of the Uniform Civil Procedure Rules 1999 (UCPR) was not made applicable by section 142 of the DVFP Act.

Ultimately, under the DVFP Act it was determined by the District Court that there existed no inherent power of the court to award costs, but as always the court could rely on section 11 of the Civil Proceedings Act which provides a general statutory power in civil cases. However, given that there was no mention of appeal costs in the DVFP Act, the court did not exercise a power to award costs in the circumstances.

Recent developments

In 2018 there were two decisions of the District Court which clarified its power to award costs on appeal in domestic violence proceedings.

In HZA v ZHA [2018] QDC 125, the District Court confirmed that by virtue of section 142 of the DVFP Act and the costs provisions in the UCPR, costs are applicable to appeals under the DVFP Act. Pursuant to rule 681 of the UCPR costs in proceeding are always the discretion of the court, but follow the event unless the court otherwise orders.

There are a number of considerations which a court considers when exercising that discretion as to costs, such as the public interest nature of the proceedings (especially in respect of police applications) and the objective of the domestic violence legislative regime to name some.

Further, this case also provides authority for indemnity certificates under the Appeal Costs Fund Act 1973 to be awarded to protect respondents to the appeal where the appeal is successful as a result of a matter of law and no fault of the responding party to the appeal.

This position was extended in BAK v Gallagher & Anor (No 2) [2018] QDC 132 where a police officer who filed an application for a protection order which was successfully dismissed on appeal was ordered to pay the costs of the appellant (the respondent to the original DV application).

It is important that to remember that applications for protection orders under the DVFP Act are applications which are civil in nature and therefore costs consequences can apply. It is important that both the responding and aggrieved parties are advised accordingly so that costs may be recovered where available and so parties can protect themselves against potential costs orders being made against them.

 

This article is of a general nature only and must not be relied upon in any legal proceeding. If you are an aggrieved or respondent in a domestic violence proceeding, you should seek legal advice by contacting our domestic violence lawyers.