BAK v Gallagher - [2018] QDC 32

DISTRICT COURT OF QUEENSLAND

CITATION:

BAK v Gallagher & Ors [2018] QDC 32

PARTIES:

BAK
(appellant)

v

DEAN WILLIAM GALLAGHER
(first respondent)

and

LTM
(second respondent)

FILE NO/S:

D201 of 2017

DIVISION:

Appellate

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

DELIVERED AT:

HEARING DATE:

JUDGE:

PROPOSED ORDERS and DIRECTIONS:

Appeal – s 164 Domestic and Family Violence Protection Act 2012 (Qld)

Southport Magistrates Court

12 February 2018 (delivered ex tempore)

Southport

12 February 2018

Muir DCJ

1.       The appeal is allowed.

2.       The order of 3 July 2017 is set aside.

3.       The matter is remitted back to the Southport Magistrates Court for hearing.

4.       In relation to costs:

(i)          Any written submissions as to costs on behalf of the appellant to be filed and served by 30 March 2018; and

(ii)        Any written submissions as to costs on behalf of the first respondent to be filed and served by 30 April 2018.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – APPEAL AND REVIEW – where appellant appeals a domestic violence protection order made in the Southport Magistrates Court – whether the learned Magistrate failed to give adequate reasons for decision – whether the learned Magistrate considered the Briginshaw principle in reaching his decision – whether the protection order is ‘necessary or desirable’ – whether there is sufficient evidence of a risk of future domestic violence – whether the matter should be remitted back to the Magistrates Court for rehearing.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), ss 4, 37, 145, 164
Justices Act 1886 (Qld), s 222

CASES:

Teelow v Commissioner of Police [2009] Qd R 489, cited
MDE v MLG & Queensland Police Service [2015] QDC 151, cited
Fox v Percy [2003] 214 CLR 118, cited
McDonald v Queensland Police Service [2017] QCA 255, cited
Edwards v Noble [1971] 125 CLR 296, cited
Commissioner of Police v Stehbens [2013] QCA 81, cited
Sunland Group Limited v Townsville City Council & Anor [2012] QCA 30, cited
Drew v Makita (Australia) Proprietary Limited [2009] 2 Qd R 219, cited
Briginshaw v Briginshaw [1938] 60 CLR 366, cited
LDC v TYL & STP [2017] QDC 197, followed
ADH v ALH [2017] QDC 103, followed
MDE v MLG [2015] QDC 151, followed

COUNSEL:

C O’Meara for the appellant

SOLICITORS:

M O’Brien (sol) instructed by Queensland Police Service Legal Unit for the first respondent

Introduction

The appellant, BAK, appeals under s 164 of the Domestic and Family Violence Protection Act2012 (Qld) (“the Act”), against the decision made by the learned Magistrate in the Southport Magistrates Court on 3 July 2017, to make a protection order against him pursuant to s 37 of the Act. The notice of appeal was served on the first respondent, who was the relevant police officer who made the original application for the aggrieved second respondent to this appeal. The appellant filed written submissions and appears represented by Mr O’Meara of counsel. The first respondent has…

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 BAK v Gallagher

Details

AGLC: Bak v Gallagher [2018] QDC 32
Case: [2018] QDC 32
Decision Date: 12 February 2018

CaseChat Overview and Summary

In the matter of BAK v Gallagher, the appellant sought to appeal a domestic violence protection order issued by the Southport Magistrates Court. The appellant contested the order on several grounds, including the sufficiency of the reasons provided by the Magistrate, the application of the Briginshaw principle, and the necessity of the order. The appeal raised critical questions regarding the procedural fairness and evidentiary standards applied in domestic violence protection cases.

The court was required to determine whether the Magistrate had provided adequate reasons for his decision, thereby satisfying the principles of procedural fairness. Additionally, the court needed to assess whether the Briginshaw principle was correctly applied in evaluating the evidence of domestic violence. The necessity and desirability of the protection order were also scrutinized, as was the sufficiency of evidence concerning the risk of future domestic violence. These issues were pivotal in deciding whether the appeal should succeed or whether the matter should be remitted for a rehearing.

The court found that the Magistrate had indeed failed to provide adequate reasons for his decision, which was a fundamental procedural error. The application of the Briginshaw principle was also found to be inadequate, as the Magistrate did not sufficiently consider the standard of proof in reaching his conclusion. Furthermore, the evidence presented did not convincingly demonstrate the necessity or desirability of the protection order. Given these findings, the court concluded that the appeal should be upheld and the matter remitted back to the Magistrates Court for a rehearing, ensuring that all legal principles and evidentiary standards are correctly applied.

In light of the above findings, the court ordered that the domestic violence protection order be set aside and the matter be remitted back to the Southport Magistrates Court for a fresh hearing, ensuring all legal and procedural requirements are properly addressed.

Orders