AZ v By - [2017] QDC 67

DISTRICT COURT OF QUEENSLAND

CITATION:

AZ v BY [2017] QDC 67

PARTIES:

AZ
(applicant/appellant)

v

BY
(respondent)

FILE NO/S:

D18 of 2017

DIVISION:

Civil

PROCEEDING:

Appeal, s 165 of the Domestic and Family Violence Protection Act 2012

ORIGINATING COURT:

Magistrates Court at Maroochydore

DELIVERED ON:

24 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2017 and 17 March 2017 (at Maroochydore)

JUDGE:

Long SC DCJ

ORDER:

The application for stay of the operation of the Magistrate’s decision of 14 February 2017, is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – s 165 of the Domestic and Family Violence Protection Act 2012 – Where the appellant appeals against the refusal of her application for a protection order – Where the appellant filed an application pursuant to s 166(2) of the Domestic and Family Violence Protection Act 2012 for an order to stay the operation of the Magistrate’s decision to refuse her application for a protection order – Where the appellant was granted a temporary protection order upon the filing of her application for a protection order – Where the appellant seeks to maintain the effect of the temporary protection order – Whether it is an appropriate case for a stay

LEGISLATION:

Domestic and Family Violence Protection Act 2012; ss 3(1); 3(2)(a); 4; 37(1); 37(1)(a); 37(1)(b); 37(2); 45; 56; 98(c); 142; 165; 166(2); s 169(2)

Uniform Civil Procedure Rules 1999 r 761

CASES:

Attorney-General for the State of Queensland v Fardon [2011] QCA 111

Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453

Fox v Percy (2003) 214 CLR 118

Menso v Commonwealth Bank of Australia [2016] QCA 188

COUNSEL:

C van der Weegen for the applicant/appellant

A Hawkes (sol) for the respondent

SOLICITORS:

Freedom Law for the applicant/appellant

Hawkes Lawyers for the respondent

Introduction

On 14 February 2017 and after a trial in the Magistrates Court at Maroochydore, the appellant’s application for a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (“DFVPA”) was refused. On the same day and, it would appear, by a document that had been prepared in anticipation of that decision, the appellant filed a notice of appeal against that decision, pursuant to s 165 of the DFVPA. Subsequently and on 17 February 2017 an amended notice of appeal was filed and it is upon the grounds set out in that amended notice that the appellant intends to proceed.

This matter concerns the appellant’s application, filed on 8 March 2017 and pursuant to s 166(2) of the DFVPA, for an order to stay the operation of the decision to refuse her application for a protection order. Whilst and at first blush that might seem an unusual application, the utility of it is disclosed by understanding that upon the filing of her application for the protection order, the appellant was granted a temporary protection order, which was subsequently amended on 6 September 2016, upon application by the respondent to allow him to attend at…

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 AZ v By

Details

AGLC: AZ v By [2017] QDC 67
Case: [2017] QDC 67
Decision Date: 24 March 2017

CaseChat Overview and Summary

The appeal in this matter was brought forth by the appellant, AZ, against the decision made by a magistrate to deny her application for a protection order. The respondent, By, is the party against whom the protection order was sought. The crux of the dispute revolves around the appellant's request for a protection order under the Domestic and Family Violence Protection Act 2012, which the magistrate declined to grant. The appellant subsequently applied for a stay of the magistrate's decision to prevent it from taking effect, and this application was also dismissed.

The legal issues that the court was tasked with resolving centred on the interpretation and application of s 165 of the Domestic and Family Violence Protection Act 2012, which governs the stay of proceedings. Specifically, the court needed to determine whether it was appropriate to grant the appellant's application for a stay in light of the magistrate's refusal to issue a protection order. The appellant argued that a stay was warranted to maintain the effect of a temporary protection order that was in place while her application was being processed. Conversely, the respondent contended that the stay should not be granted because the temporary protection order had expired, and the appellant's application for a protection order was denied on its merits.

In delivering its judgment, the court carefully considered the provisions of the Act and the circumstances of the case. The court noted that the appellant had been granted a temporary protection order, which provided some level of protection until the substantive application was determined. However, upon the magistrate's refusal of the protection order application, the temporary protection order ceased to have effect. The court held that the appellant had not demonstrated any exceptional circumstances that would justify a stay of the magistrate's decision. Therefore, the court dismissed the appellant's application for a stay, thereby allowing the magistrate's decision to take full effect.

Orders

Orders of the court

The application for stay of the operation of the Magistrate’s decision of 14 February 2017, is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	AZ v BY [2017] QDC 67
PARTIES:	AZ (applicant/appellant) v BY (respondent)
FILE NO/S:	D18 of 2017
DIVISION:	Civil
PROCEEDING:	Appeal, s 165 of the Domestic and Family Violence Protection Act 2012
ORIGINATING COURT:	Magistrates Court at Maroochydore
DELIVERED ON:	24 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	10 March 2017 and 17 March 2017 (at Maroochydore)
JUDGE:	Long SC DCJ
ORDER:	The application for stay of the operation of the Magistrate’s decision of 14 February 2017, is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – s 165 of the Domestic and Family Violence Protection Act 2012 – Where the appellant appeals against the refusal of her application for a protection order – Where the appellant filed an application pursuant to s 166(2) of the Domestic and Family Violence Protection Act 2012 for an order to stay the operation of the Magistrate’s decision to refuse her application for a protection order – Where the appellant was granted a temporary protection order upon the filing of her application for a protection order – Where the appellant seeks to maintain the effect of the temporary protection order – Whether it is an appropriate case for a stay
LEGISLATION:	Domestic and Family Violence Protection Act 2012; ss 3(1); 3(2)(a); 4; 37(1); 37(1)(a); 37(1)(b); 37(2); 45; 56; 98(c); 142; 165; 166(2); s 169(2) Uniform Civil Procedure Rules 1999 r 761
CASES:	Attorney-General for the State of Queensland v Fardon [2011] QCA 111 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 Fox v Percy (2003) 214 CLR 118 Menso v Commonwealth Bank of Australia [2016] QCA 188
COUNSEL:	C van der Weegen for the applicant/appellant A Hawkes (sol) for the respondent
SOLICITORS:	Freedom Law for the applicant/appellant Hawkes Lawyers for the respondent