Case shows Beenleigh court under pressure

A Beenleigh District Court judge says a recent matter has “highlighted the complicated and fraught nature of domestic violence litigation in this State”.

In his 25-page costs hearing decision published late last month, Judge Chowdhury defended the actions of solicitors involved in the application for a domestic violence order (DVO), pointing out it was “well known that domestic violence courts at Beenleigh have a very heavy workload, as does the Magistrates Court”.

In December last year, a temporary DVO granted in August was made final for “KM” against “DW” at a mention in Beenleigh Magistrates Court. It was made without authority under the Domestic and Family Violence Protection Act 2012 (Qld), without specific instructions from KM, and in DW’s absence.

DW successfully appealed the order and applied to the Beenleigh District Court for indemnity costs of $27,795, or alternatively, costs on a standard basis.

KM argued she gave no instructions to her lawyers in relation to making the DVO final, and so no costs should be awarded against her.

KM sought an order under Section 15 of the Civil Proceedings Act 2011 (Qld) that Madsen Law principal David Madsen pay DW’s costs because of the “dereliction of duty, misconduct and negligence of his employed solicitor” when appearing for her in the Magistrates’ Court, or alternatively, an order under Regulation 690 of the Uniform Civil Procedure Rules 1999 (Qld) that because of the misconduct and/or negligence of his employed solicitor, Mr Madsen repay all of her costs if she is ordered to pay costs to DW.


“The determination of the appeal was straightforward. The question of whether costs should be awarded to the appellant is not,” Judge Chowdhury stated, before explaining the circumstances.

Jones & Associates was engaged by DW to act on his behalf in response to KM’s DVO application. The firm then engaged a town agent in Beenleigh to appear on its behalf.

At the 14 December 2022 mention of the application, the town agent – on arriving half an hour late due to a concurrent matter in another court – was informed that the matter had been finalised in the absence of DW or his legal representatives, in that the DVO had been made permanent at the request of Madsen Lawyers who appeared for KM.

Madsen Lawyers’ solicitor had made several attempts to contact Jones & Associates on the morning of the mention, and DW’s name had been called over the public address system before the matter was heard.

Upon her return to her office, the solicitor saw an email forwarded to her from reception, dated 14 December 2022 and delivered at 8.40am. The email was sent by Jones & Associates to Madsen Law reception at 7.27pm on 13 December 2022 in relation to seeking an adjournment.

DW submitted that he was entirely successful in the appeal and KM had not advanced any special circumstances sufficient to depart from the ordinary rule that costs should follow the event. He also submitted that the appeal, which was “not straightforward nor expeditious”, arose due to circumstances outside his control.


KM accepted that the appeal arose due to circumstances outside of DW’s control, and because of this, DW was entitled to be awarded his costs thrown away due to having to appeal the decision made by the magistrate on 14 December.

However, KM submitted that she was not responsible in any way for the actions of her solicitor on that day, and alleged breaches of at least nine of the Australian Solicitors’ Conduct Rules 2012.

Madsen Law submitted that there were eight significant failings by DW and/or his legal representatives which rendered it just and equitable that he bear his own costs. Those failings included correspondence being sent to the firm well after close of business on the evening before the mention on December 14, and lack of due care and attention by the town agent and DW at the court on the day.

Judge Chowdhury said he did not think KM’s solicitor breached her duties as a solicitor by failing to ask for the matter to be stood down, nor was she negligent because she failed to refer to a relevant recent judgment.

“Judgments are delivered daily in the Supreme and District Court, and the volume of judgments delivered make it a difficult but important task for legal practitioners to read those judgments, particularly in the areas of law in which they practice,” he said.

“She certainly had a duty to assist the court and to avoid appellable error. Having said that, the magistrate should have known the powers he had to make a final order in the absence of the respondent.”


Judge Chowdhury said DW’s lawyers could easily have contacted KM’s solicitor during business hours on 13 December to advise her that they were still acting for DW, and that they had engaged a town agent to appear at the mention the following day to seek an adjournment.

“Further, such a phone call would have communicated that they were going to send correspondence by email as soon as they could. (KM’s solicitor) would have been alerted to expect an email from the appellant’s lawyers, and may have contacted someone at her office to check if such an email had been sent before court began,” he said.

He said “the real source of this unfortunate litigation”, however, was the magistrate failing to set aside the final order once the agent had arrived and advised they had instructions from the principal lawyers acting on behalf of KM.

“In such a situation a prudent judicial officer would recognise the error, set aside the order made in the absence of the respondent, and then set the matter down for further mention or hearing at a later date,” he said.

“I do not consider that the impugned conduct of (KM’s solicitor) amounts to the required level of negligence, let alone that it should then be attributed to Mr Madsen.”

After refusing to make an order of costs against Mr Madsen, Judge Chowdhury considered “that the circumstances of this litigation are unique and special, and it would be unfair to order costs against the respondent” either.


He concluded the appropriate order was that each party bear its own costs.

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