ADI v EGI - [2020] QDC 13

DISTRICT COURT OF QUEENSLAND

CITATION:

ADI v EGI [2020] QDC 13

PARTIES:

ADI
(appellant)

v

EGI
(respondent)

FILE NO/S:

1190/19

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to Domestic and Family Violence Protection Act 2012 (Qld)

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

21 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5, 7, 14 and 19 February 2020

JUDGE:

Smith DCJA

ORDER:

1. The application for a stay of the Magistrate’s decision is refused.

CATCHWORDS:

MAGISTRATES – ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - Appeal - whether stay of Magistrates decision to dismiss application should be ordered pending the appeal

Domestic and Family Violence Protection Act 2012 (Qld) ss 3, 4, 37, 44, 46, 47, 78, 91, 92, 145, 166

Human Rights Act 2019 (Qld) ss 17, 26, 31, 48

ADI v EGI [2019] QMC 8 March 2019, cited

Aldridge v Keaton [2009] FamCAFC 106, applied

Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, cited

CPS v CNJ [2014] QDC 47, cited

CRD v MMM Family Court decision 12 December 2018, cited

SCJ v ELT [2011] QDC 100, cited

Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, cited

COUNSEL:

Self-represented appellant
No appearance for the respondent

SOLICITORS:

Self-represented appellant

Introduction

This is an application by the appellant for a stay of the decision of the Magistrates Court at Brisbane on 8 March 2019 to dismiss an application of the appellant to vary a protection order.

This court has the power to stay this decision under section 166 of the Domestic and Family Violence Protection Act2012 (Qld) (“the Act”).

Principles

The Act does not set out the principles to be applied in deciding on whether or not to grant a stay in these matters.

In the civil jurisdiction an appellant for a stay of the judgment does not need to show there are exceptional circumstances but it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional and that a successful party should be entitled to the fruits of its judgment.[1] Relevant considerations include the prospect of the appeal succeeding, whether a refusal to grant a stay would render the appeal nugatory and whether irremediable harm would be suffered if a stay were not granted.[2]
[1]Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322 at [12].
[2]Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322 at [13]-[33].

In the Family Court jurisdiction, the principles involved in granting a stay were discussed in Aldridge v Keaton.[3]
[3][2009] FamCAFC 106 at [18].

It was said it was a discretionary decision for the court with consideration to the following factors:

·the onus…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ADI v EGI

Details

AGLC: ADI v Egi [2020] QDC 13
Case: [2020] QDC 13
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case of ADI v EGI involved a dispute concerning orders to restrain domestic, family, or apprehended violence or for personal safety. The matter was heard in the Magistrates Court, where the initial application was dismissed. The applicant, ADI, sought to appeal this decision and requested a stay of the Magistrates' decision pending the outcome of the appeal. The appeal was brought before the court to determine whether the stay should be granted.

The central legal issue before the court was whether a stay of the Magistrates' decision to dismiss the application should be ordered pending the appeal. The applicant argued that a stay was necessary to protect their interests and prevent potential harm in the interim period. The respondent, EGI, contended that there were no grounds for a stay and that the application was unlikely to succeed on appeal.

The court considered the factors relevant to granting a stay, including the likelihood of success on appeal, the potential harm to the parties if a stay was not granted, and the balance of convenience. The court found that the applicant had not demonstrated a sufficient likelihood of success on appeal and that the potential harm to the respondent if a stay were granted outweighed the potential harm to the applicant. Consequently, the court concluded that it was not in the interests of justice to grant a stay.

The court refused the application for a stay of the Magistrates' decision. The appeal was dismissed, and the original decision of the Magistrates Court stood. The applicant was not granted a stay pending the appeal, and the orders made by the Magistrates Court remained in effect.

Orders

Orders of the court

1. The application for a stay of the Magistrate’s decision is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ADI v EGI [2020] QDC 13
PARTIES:	ADI (appellant) v EGI (respondent)
FILE NO/S:	1190/19
DIVISION:	Appeal
PROCEEDING:	Appeal pursuant to Domestic and Family Violence Protection Act 2012 (Qld)
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	21 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	5, 7, 14 and 19 February 2020
JUDGE:	Smith DCJA
ORDER:	1. The application for a stay of the Magistrate’s decision is refused.
CATCHWORDS:	MAGISTRATES – ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - Appeal - whether stay of Magistrates decision to dismiss application should be ordered pending the appeal Domestic and Family Violence Protection Act 2012 (Qld) ss 3, 4, 37, 44, 46, 47, 78, 91, 92, 145, 166 Human Rights Act 2019 (Qld) ss 17, 26, 31, 48 ADI v EGI [2019] QMC 8 March 2019, cited Aldridge v Keaton [2009] FamCAFC 106, applied Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; [2008] QCA 322, cited CPS v CNJ [2014] QDC 47, cited CRD v MMM Family Court decision 12 December 2018, cited SCJ v ELT [2011] QDC 100, cited Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84, cited
COUNSEL:	Self-represented appellant No appearance for the respondent
SOLICITORS:	Self-represented appellant