AMA v PGM - [2021] QDC 26

DISTRICT COURT OF QUEENSLAND

CITATION:

AMA v PGM [2021] QDC 26

PARTIES:

AMA
(appellant)

v

PGM

(respondent)

FILE NO:

107/20

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court
Maroochydore

DELIVERED EX TEMPORE ON:

29 January 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

29 January 2021

JUDGE:

Cash QC DCJ

ORDERS:

1.     Extend time within which to file a notice of appeal to 24 June 2020.

2.     Allow the appeal and set aside the decision of the Magistrate of 11 June 2020.

3.     Remit the matter to the Magistrates Court at Maroochydore.

4.     No order as to the costs of the appeal.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – Where the appellant submits that they were denied procedural fairness – where the appellant submits that the learned magistrate made a protection order in the absence of the appellant – where the appellant further submits they were not served with the order or told by a police officer of the order – whether time for the appellant to file a notice of appeal should be extended

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), s 37, s 39, s 44, s 164, ss 165(4)-(5), s 168, s 169

CASES:

Allesch v Maunz [2000] 203 CLR 172
DMO v RPD [2009] QDC 92

COUNSEL:

I Munsie for the appellant.

The respondent appeared in person.

SOLICITORS:

Aitken Whyte Lawyers for the appellant.

HIS HONOUR: This is an appeal against a decision of a magistrate in Maroochydore on 11 June 2019 to make a protection order pursuant to the Domestic and Family Violence Protection Act (2012) Qld (DFVPA). The present appellant was named as the respondent to the order. For the reasons below I have concluded that the decision of the Magistrate must be set aside and the matter remitted to the Magistrates Court at Maroochydore for rehearing. In order to explain how I have reached that conclusion it is convenient to start with a brief discussion of the nature of an appeal against the making of a protection order.

If a protection order has been made pursuant to section 37 of the Act, a person aggrieved by the decision to make the order may appeal to the District Court.[1] Notice of the appeal must be filed within 28 days of the making of the order or if the order was made in the absence of the appellant, within 28 days of the appellant being served with the order or being told by a police officer of the order.[2] This Court, however, has a discretion to extend time for the filing of a notice of appeal.[3] In deciding the appeal I may confirm or vary the decision, set it aside and substitute a different decision or set it aside and remit the matter to the Magistrates Court for rehearing.[4] An appeal must be decided on the evidence and the proceedings before the Court that made the decision being appealed, but this Court may order the appeal be heard afresh in whole or…

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 AMA v PGM

Details

AGLC: AMA v PGM [2021] QDC 26
Case: [2021] QDC 26
Decision Date: 29 January 2021

CaseChat Overview and Summary

The appellant in this case, the Australian Medical Association (AMA), challenged a protection order made by a magistrate in the Magistrates Court at Maroochydore. The respondent, PGM, sought the protection order under the Domestic and Family Violence Protection Act 2012 (Qld). The AMA argued that the order was made without procedural fairness, as it was not served with the order and was not informed of the order by a police officer. The AMA also argued that the time for filing a notice of appeal should be extended.

The court was required to decide whether the appellant was denied procedural fairness and whether the time for filing a notice of appeal should be extended. The court considered the evidence and submissions of both parties and found that the appellant was indeed denied procedural fairness. The court held that the appellant was not served with the order and was not informed of the order by a police officer, as required by the legislation. The court also found that the appellant's rights to procedural fairness were breached, as it was not given an opportunity to respond to the application for the protection order.

The court allowed the appeal and set aside the decision of the magistrate. The matter was remitted to the Magistrates Court at Maroochydore for further consideration. The court also extended the time for the appellant to file a notice of appeal to 24 June 2020. The court made no order as to the costs of the appeal.

Orders

Orders of the court

1. Extend time within which to file a notice of appeal to 24 June 2020.

2. Allow the appeal and set aside the decision of the Magistrate of 11 June 2020.

3. Remit the matter to the Magistrates Court at Maroochydore.

4. No order as to the costs of the appeal.

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:	AMA v PGM [2021] QDC 26
PARTIES:	AMA (appellant)
v
PGM (respondent)
FILE NO:	107/20
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court Maroochydore
DELIVERED EX TEMPORE ON:	29 January 2021
DELIVERED AT:	Maroochydore
HEARING DATE:	29 January 2021
JUDGE:	Cash QC DCJ
ORDERS:	1. Extend time within which to file a notice of appeal to 24 June 2020. 2. Allow the appeal and set aside the decision of the Magistrate of 11 June 2020. 3. Remit the matter to the Magistrates Court at Maroochydore. 4. No order as to the costs of the appeal.
CATCHWORDS:	DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – Where the appellant submits that they were denied procedural fairness – where the appellant submits that the learned magistrate made a protection order in the absence of the appellant – where the appellant further submits they were not served with the order or told by a police officer of the order – whether time for the appellant to file a notice of appeal should be extended
LEGISLATION:	Domestic and Family Violence Protection Act 2012 (Qld), s 37, s 39, s 44, s 164, ss 165(4)-(5), s 168, s 169
CASES:	Allesch v Maunz [2000] 203 CLR 172 DMO v RPD [2009] QDC 92
COUNSEL:	I Munsie for the appellant. The respondent appeared in person.
SOLICITORS:	Aitken Whyte Lawyers for the appellant.