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AJC v Constable Kellie-Ann Gijsberten

AJC v Constable Kellie-Ann Gijsberten

Case [2019] QDC 195 8 October 2019

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DISTRICT COURT OF QUEENSLAND

CITATION:

AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195

PARTIES:

AJC

(Appellant)

v.

Constable Kellie-Ann Gijsberten

(Respondent)

AJC

(Appellant)

v.

AME

(Respondent)

FILE NO/S:

DC 170/2018 207/2018

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Mt Isa

DELIVERED ON:

8 October 2019

DELIVERED AT:

Townsville

HEARING DATE:

26 April 2019

JUDGE:

Lynham DCJ

ORDERS:

Appeal 207 of 2018

1.       The time to file notice of appeal 207 of 2018 is extended to 3 September 2018.

2.       The appeal is allowed.

3.       The protection order made in the Mount Isa Magistrates Court on 14 June 2018 is set aside.

4.       The application for a protection order by AME be remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate.

The court directs that:

1.       If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019.

Appeal 170 of 2018

1.       The appeal is allowed.

2.       The order made in the Mount Isa Magistrates Court on 14 June 2018 refusing the appellant’s application for a protection order and the order that the appellant pay the respondents costs are set aside.

3.       The application for a protection order by the appellant is remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate.

The court directs that:

1.       If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019.

CATCHWORDS:

DOMESTIC VIOLENCE – APPEAL AND REVIEW – s 164 and 165 Domestic and Family Violence Protection Act 2012 – where parties brought opposing applications for a protection order pursuant to s 37 Domestic and Family Violence Protection Act 2012 – where protection order made against the appellant – where the appellant’s cross-application was dismissed – whether pursuant to s 41C Domestic and Family Violence Protection Act 2012 both applications should have been heard together – whether conduct of the proceedings constituted the applications being heard together

           DOMESTIC VIOLENCE – APPEAL AND REVIEW – where appellant was a self-represented litigant – whether the magistrate adequately explained to the appellant the process by which each application was to be heard and determined – whether the magistrate erred in prohibiting the appellant from cross-examining the aggrieved – whether the appellant was denied procedural fairness in opposing the magistrate’s prohibition on him cross-examining the aggrieved – whether the conduct of the hearing of each application resulted in the appellant not receiving a fair hearing - whether there has been any error on the part of the magistrate in dealing with each application - whether the decisions of the magistrate should be set aside and remitted to the Magistrates Court for rehearing

DOMESTIC VIOLENCE – APPEAL AND REVIEW – where the appellant filed notice of appeal 207 of 2018 out of…

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 AJC v Constable Kellie-Ann Gijsberten

Details

AGLC: AJC v Constable Kellie-Ann Gijsberten [2019] QDC 195
Case: [2019] QDC 195
Decision Date: 8 October 2019

CaseChat Overview and Summary

The appellant, AJC, filed an appeal against a protection order made against him by Constable Kellie-Ann Gijsberten in the Mount Isa Magistrates Court. The court was required to determine whether the magistrate erred in various procedural aspects of the case, including the handling of both applications for protection orders and the appellant's right to cross-examine the aggrieved party. Additionally, the court had to consider whether the appellant's self-represented status and the timing of the appeal filing warranted any special consideration.

The court found that the magistrate did not adequately explain the process to the appellant, a self-represented litigant, and thereby failed to ensure procedural fairness. The magistrate's prohibition on cross-examination and the handling of the proceedings were found to have deprived the appellant of a fair hearing. Furthermore, the court determined that the applications should have been heard together, as required by statute, and that the magistrate's conduct resulted in a breach of this requirement.

The appeal was allowed, and the protection order was set aside. The court ordered that the application for a protection order by the aggrieved party be remitted to the Magistrates Court for rehearing before a different magistrate. The court also granted an extension of time for the filing of the notice of appeal, allowing it to proceed. Additionally, the court directed that if an order as to costs (other than there be no orders as to costs) was sought, the parties were to exchange and file short written submissions by a specified date.

The court's final orders included the allowance of the appeals, the setting aside of the original protection order and the refusal of the appellant's application, and the direction for rehearing before a different magistrate. The court also provided directions for the exchange of written submissions if costs were to be considered.

Orders

Orders of the court

Appeal 207 of 2018

1. The time to file notice of appeal 207 of 2018 is extended to 3 September 2018.

2. The appeal is allowed.

3. The protection order made in the Mount Isa Magistrates Court on 14 June 2018 is set aside.

4. The application for a protection order by AME be remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate.

The court directs that:

1. If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019.

Appeal 170 of 2018

1. The appeal is allowed.

2. The order made in the Mount Isa Magistrates Court on 14 June 2018 refusing the appellant’s application for a protection order and the order that the appellant pay the respondents costs are set aside.

3. The application for a protection order by the appellant is remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate.

The court directs that:

1. If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019.

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.

Citations

AGLC Citation

AJC v Constable Kellie-Ann Gijsberten [2019] QDC 195

Most Recent Citation

EKL v Commissioner of Police and PEL [2020] QDC 194

Cases citing this decision · 6 of 6 shown

KT v CT
[2024] QDC 196 Para 40

…be determined without witnesses being called and cross-examined will depend on all of the circumstances of the case.[25] [25] AJC v Gijsberten & Ors [2019] QDC 195 at [50] (Lynham DCJ).…
Faj v FJH
[2024] QDC 23 Para 6

…at that person will give evidence as a witness at a hearing on oath or affirmation”.[28] [26]See: AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195 at [53]. [27][2009] QDC 92 at [9] (citations omitted). [28][2009] QDC 92 at [9]-[10].…
RQM v PAK
[2023] QDC 53 Para 16

…whether the Magistrate considered the elements of s 151 at all, much less giving the appellant a proper opportunity to be heard thereon. [31][2019] QDC 195.…
Wylie v AMN
[2022] QDC 241 Para 16

…These orthodox principles were applied in the context of the Act in AJC v Constable Kellie-Ann Gijsberten and Ors [2019] QDC 195, where Lynham DCJ dealt with the circumstances in which a Magistrate may conduct a hearing without witnesses giving sworn evidence and being cross-examination. His Honour stated:[24] (u…
QKL v Queensland Police Service
[2021] QDC 195 Para 1

…In the decision of AJC v Gijsberten & Ors [2019] QDC 195, Judge Lynham at paragraph 9, said:…
Ekl v Commissioner of Police and Pel
[2020] QDC 194 Para 4

…I refer to and respectfully adopt the analysis of Lynham DCJ in AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195 at [6]-[9]. Background…

View all 6 citing cases →

Cases cited in this decision · 16 of 16 shown

GKE v EUT
[2014] QDC 248 Para 1

…ence given in the proceeding before the Magistrate. That is so even though the nature of the appeal is not expressed in those terms.[4] [4] GKE v ETU [2014] QDC 248 at [2]-[3]…
R v Mundy
[2011] QCA 7

…icher [1998] 4 VR 439 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Mundy [2011] QCA 7, R v Tait [1999] 2 Qd R 667 R v Rostom (2007) 98 SASR 528 Re Bui and Federal Commissioner of Taxation [2008] AATA 666, Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 COUN…
Moore-McQuillan v Police (2)
[2010] SASC 160

…SASC 6 GKE v ETU [2014] QDC 248 MacPherson v The Queen (1981) 147 CLR 512 Marriage of F (2001) 161 FLR 189 Moore-McQuillan v Police (1998) 196 LSJS 488 Palmer Tube Mills (Aust) Pty Ltd v Semi Semi ; Transport Accident Commission v Streicher [1998] 4 VR 439 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 3…
DMO v RPD
[2009] QDC 92 Para 1

…cation and, for example, the suitability of hearing an application “on the papers”. In this regard, the observations of McGill DCJ in DMO v RPD [2009] QDC 92, whilst made in respect to the now repealed Domestic and Family Violence Protection Act 1989 (Qld), remain as much apposite to proceedings under the DFVPA…
Weinstein v Medical Practitioners Board of Victoria (No 2)
[2008] VSCA 224

…1999] 2 Qd R 667 R v Rostom (2007) 98 SASR 528 Re Bui and Federal Commissioner of Taxation [2008] AATA 666, Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 COUNSEL: C. Grant for the Appellant SOLICITORS: Anderson Telford Lawyers for the Appellant Ross & Robins Lawyers for the Respondent in appeal 170/2018 Queensland Police Service for t…
Weinstein v Medical Practitioners Board of Victoria
[2008] VSCA 193

…i and Federal Commissioner of Taxation [2008] AATA 666, Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 COUNSEL: C. Grant for the Appellant SOLICITORS: Anderson Telford Lawyers for the Appellant Ross & Robins Lawyers for the Respondent in appeal 170/2018 Queensland Police Service for the Respon…
Bui and Commissioner of Taxation
[2008] AATA 666

…QCA 7, R v Tait [1999] 2 Qd R 667 R v Rostom (2007) 98 SASR 528 Re Bui and Federal Commissioner of Taxation [2008] AATA 666, Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29 COUNSEL: C. Grant for the Appellant SOLICITORS: Anderson Telford Lawyers for the Appellant Ross & Robins Lawyers for the R…
R v Rostom
[2007] SASC 210 Para 1

…In R v Rostom (2007) 98 SASR 528, Gray J and Sulan J also said with respect to the obligations imposed on a judge where an accused is self-represented at 538:…
Friedrichs v Police
[2007] SASC 6 Para 1

…Finally, in Friedrichs v Police [2007] SASC 6, Gray J cited at [25] the observations of Bleby J in Moore-McQuillan v Police[27], where it had been said:…
Fox v Percy
[2003] HCA 22 Para 1

…ving due deference and attaching a good deal of weight to the Magistrate’s view.[6] [5] Allesch v Maunz (2000) 203 CLR 172 at 180 [6] Fox v Percy (2003) 214 CLR 118 at 25…
Re F: Litigants in person guidelines
[2001] FamCA 348 Para 1

…adequate opportunity to present his case and whether the hearing of the application was conducted according to proper procedure. In the Marriage of F (2001) 161 FLR 189, the Full Court of the Family Court took the opportunity to review the guidelines applicable in the Family Court for trial judges hearing matters inv…
Allesch v Maunz
[2000] HCA 40 Para 1

…ant facts and issues from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[6] [5] Allesch v Maunz (2000) 203 CLR 172 at 180 [6] Fox v Percy (2003) 214 CLR 118 at 25…
DJL v Central Authority
[2000] HCA 17 Para 1

…ppeals against orders made under the DFVPA are governed by Division 5 of the Act. S 168 of the DFVPA provides as follows: [3] DJL v Central Authority (2000) 201 CLR 226 at 246 at [40]…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 1

…ly with a statutory stipulation has the consequence of rendering the proceedings invalid. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the plurality at 399-389 said:…
Neil v Nott
[1994] HCA 23

…es where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott (1994) 68 ALJR 509 at 510.…
MacPherson v The Queen
[1981] HCA 46 Para 1

…In MacPherson v The Queen (1981) 147 CLR 512 the accused was self-represented. Evidence was given by police officers of confessions which they said the accused had made. The accused put to the police in cross-examination that he had made no confession but that they had made threats to induce him to confess. The trial judge did…

Legislation cited in this decision · 6

Domestic and Family Violence Protection Act 2012 (Qld)
145, 150, 151, 164, 165, 168, 169, 37, 4... 13 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
32CA 2 mentions
Domestic and Family Violence Protection Act 1989 (Qld)
2 mentions (from Para 1)
Domestic and Family Violence Protection Rules 2014 (Qld)
33 2 mentions (from Para 1)
Evidence Act 1977 (Qld)
21N 1 mention
Uniform Civil Procedure Rules 1999 (Qld)
1 mention

CITATION:	AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195
PARTIES:	AJC (Appellant) v. Constable Kellie-Ann Gijsberten (Respondent) AJC (Appellant) v. AME (Respondent)
FILE NO/S:	DC 170/2018 207/2018
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Mt Isa
DELIVERED ON:	8 October 2019
DELIVERED AT:	Townsville
HEARING DATE:	26 April 2019
JUDGE:	Lynham DCJ
ORDERS:	Appeal 207 of 2018 1. The time to file notice of appeal 207 of 2018 is extended to 3 September 2018. 2. The appeal is allowed. 3. The protection order made in the Mount Isa Magistrates Court on 14 June 2018 is set aside. 4. The application for a protection order by AME be remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate. The court directs that: 1. If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019. Appeal 170 of 2018 1. The appeal is allowed. 2. The order made in the Mount Isa Magistrates Court on 14 June 2018 refusing the appellant’s application for a protection order and the order that the appellant pay the respondents costs are set aside. 3. The application for a protection order by the appellant is remitted to the Mount Isa Magistrates Court for rehearing before a different Magistrate. The court directs that: 1. If an order as to costs (other than there be no orders as to costs) is sought, then the parties are to exchange and file short written submission by 4.00pm Friday 25 October 2019.
CATCHWORDS:	DOMESTIC VIOLENCE – APPEAL AND REVIEW – s 164 and 165 Domestic and Family Violence Protection Act 2012 – where parties brought opposing applications for a protection order pursuant to s 37 Domestic and Family Violence Protection Act 2012 – where protection order made against the appellant – where the appellant’s cross-application was dismissed – whether pursuant to s 41C Domestic and Family Violence Protection Act 2012 both applications should have been heard together – whether conduct of the proceedings constituted the applications being heard together DOMESTIC VIOLENCE – APPEAL AND REVIEW – where appellant was a self-represented litigant – whether the magistrate adequately explained to the appellant the process by which each application was to be heard and determined – whether the magistrate erred in prohibiting the appellant from cross-examining the aggrieved – whether the appellant was denied procedural fairness in opposing the magistrate’s prohibition on him cross-examining the aggrieved – whether the conduct of the hearing of each application resulted in the appellant not receiving a fair hearing - whether there has been any error on the part of the magistrate in dealing with each application - whether the decisions of the magistrate should be set aside and remitted to the Magistrates Court for rehearing DOMESTIC VIOLENCE – APPEAL AND REVIEW – where the appellant filed notice of appeal 207 of 2018 out of…