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  • Writer's pictureJennifer Sheean

Costs in DVO appeals - not always straightforward

On 22 March 2024, Chowdhury DCJ handed down a costs decision after a successful appeal against the making of a final DVO against the appellant. The appellant sought costs on the indemnity basis.

The respondent, who at the time of the appeal was no longer represented by her former solicitors but had pro bono legal representation, sought an order either that her former solicitors pay any costs awarded against her or that if she is ordered to pay costs, that her former solicitors be ordered to repay all of her costs pursuant to Rule 690 of the Uniform Civil Procedure Rules 1999.

The respondent's former solicitors also appeared arguing that the appellant should bear his own costs pointing to what were said to be significant failures in the conduct of the matter either by the appellant or his solicitors.

The issue upon which the appeal was successful was the making of a final order when the appellant's legal representative did not initially appear when the matter was called on for mention. The appellant's legal representative (actually a town agent for the solicitor on the record) was delayed in another Courtroom and, upon learning that the matter had been disposed of, asked the Magistrate to re-open it so that the final order could be set aside and the matter continue on foot. The Magistrate did not grant that application.

Beyond the issue of whether costs should be ordered in favour of the appellant and, if so, who should have to pay those costs, the case raises an issue that has, at times, been somewhat vexed in these matters. That is, whether s. 39 of the Domestic and Family Violence Protection Act 2012 (Qld) allows a final order to be made in the absence of the respondent to the application's appearance on a mention or review of the matter (as opposed to the date upon which the matter is set down for a hearing). That particular issue was dealt with in KJW v PQV & Anor [2022] QDC 200 when Sheridan DCJ said that a review of a DVO matter was not a time when "the court ... is to hear and decide an application for a protection order."

In the circumstances of this particular case, Chowdhury DCJ decided that he would make no order as to costs. The decision is DW V KM [2024] QDC 27.

DW v KM [2024] QDC 27
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