Arte v Nugent

[2020] QDC 268

DISTRICT COURT OF QUEENSLAND

CITATION:	ARTE v Nugent & Anor [2020] QDC 268
PARTIES:	ARTE
(appellant)
v
CONSTABLE MATTHEW NUGENT
(first respondent)
And
LBXJ
(second respondent)
FILE NO/S:	415/2020
DIVISION:	Appellate
PROCEEDING:	Appeal under s 164 of the Domestic and Family Violence Protection Act 2012
ORIGINATING  COURT:	Brisbane Magistrate’s Court
DELIVERED ON:	23 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	1 October 2020
JUDGE:	Williamson QC DCJ
ORDER:	Orders made in accordance with paragraph [6] of these reasons for judgment.

CATCHWORDS: DOMESTIC AND FAMILY VIOLENCE LAW –

PROTECTION ORDER – APPEAL – where appeal under

s 164 of the Domestic and Family Violence Protection Act

2012 – whether the Magistrate at first instance erred in holding

that a Protection order was necessary or desirable to protect the

second respondent from domestic violence – whether the

Magistrate at first instance erred in imposing an ouster

condition in relation to the aggrieved’s usual place of residence – whether the conduct of the Magistrate occasioned a

miscarriage of justice – whether a new trial should be ordered – whether a new trial should be conducted by a different

Magistrate.

COUNSEL:	Mr S Kissick for the appellant
Mr M O’Brien for the first respondent
Mr G Seaholme for the second respondent
SOLICITORS:	Armstrong Legal for the appellant Queensland Police Service Legal Union for the first respondent Fallu McMillan Lawyers for the second respondent

Introduction

1. On 3 February 2020, a Magistrate made a Protection order against the appellant under s 37 of the Domestic and Family Violence Protection Act 2012 (DVFPA). The order was made after a contested hearing, and includes an ouster condition in relation to the

   aggrieved’s usual place of residence.

2. This is an appeal under s 164 of the DVFPA against the Magistrate’s decision of 3

   February 2020 to grant the Protection order (the order).

3. The appellant, who is the named respondent to the order, contends the decision should

   be set aside and the matter remitted to the Brisbane Magistrate’s Court for

   determination by a different Magistrate. A number of grounds of appeal are relied upon. In general terms, it is asserted the Magistrate erred in law, and her conduct during the trial occasioned a miscarriage of justice.

4. The first respondent, who was the applicant for the order at first instance, opposes the

   appeal, but concedes: (1) the Magistrate’s reasons for judgment disclose an error of

the kind contemplated by House v The King (1936) 55 CLR 499; and (2) it is
appropriate for the order to be varied such that the ouster condition is deleted.

1. The second respondent, who is the aggrieved and the person for whom the order is to benefit, is supportive of the appeal and the relief sought by the appellant.

2. For the reasons that follow, it is ordered that:

1.	The appeal be allowed.
2.	The Protection order dated 3 February 2020 be set aside.
3.	The first respondent’s application for a Protection order under s 37 of the

Domestic and Family…