BBB v RAB

[2006] QDC 80

DISTRICT COURT OF QUEENSLAND

CITATION:

BBB v RAB [2006] QDC 080

PARTIES:

BBB

Appellant

V

RAB

Respondent

FILE NO/S:

Appeal 4204/05

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

13 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2006

JUDGE:

McGill DCJ

ORDER:

Appeal allowed; protection order set aside; order in lieu that the application to the Magistrates Court be dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – Duty of court below to give reasons – relevant facts not found – appeal allowed

FAMILY LAW – Domestic Violence – what amounts to an act of domestic violence

Domestic and Family Violence Protection Act 1989 ss 11(1), 20(1), 65.

Bawden v ACI Operations Pty Ltd [2003] QCA 293 – followed.
Crystal Dawn Pty Ltd v Rudruth Pty Ltd [1998] QCA 373 – followed.
D v G [2004] QDC 477 – followed.
Martin v Rowling [2005] QCA 128 – followed.
MAN v MAM [2003] QDC 398 – followed.
Mifsud v Campbell (1991) 21 NSWLR 725- applied.
R v Byrant [1984] 2 Qd R 545 – followed.
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 – applied.

COUNSEL:

J. Korn for the appellant

The respondent did not appear

SOLICITORS:

Bottoms English solicitors for the appellant

The respondent was not represented

1. This is an appeal under s.63 of the Domestic and Family Violence Protection Act 1989 (the Act) from the decision of a magistrate on 18 October 2005 to make a domestic violence order (a protection order) against the appellant. By s.65 the appeal is “by way of rehearing on the record and under the rules of court applying to the District Court, or in so far as those rules cannot be applied to such appeals, in accordance with direction given by a District Court judge.”

1. The respondent did not appear when the matter was called on for hearing, although the court had given her notice that it had been set down for that day, and she had previously filed a substantial “respondent’s outline of argument”.  Much of this document, however, appears to be in the form of evidence rather than any argument relating to an appeal.  The appeal is by way of rehearing on the record, and even if fresh evidence could be admitted under the relevant rules of court[1], it could only be admitted on the basis that the evidence complied with the usual rules for admission of evidence of the first time on appeal.[2]  There is certainly no general right of parties to put further evidence before the court on an appeal.  Most of the material contained in this document appears to be really an attempt to put fresh evidence before the court, in circumstances where it is not shown that the fresh evidence rules have been satisfied.  It must therefore be disregarded.

   [1]UCPR v 766(i)(c), applied by r.785(1).

   [2]Clarke v Japan Machines (Aust) Pty Ltd [1984] 1 Qd R 404 at 408; Walker v Davlyn Holmes Pty Ltd [2003] QCA 565 at [11]

1. The…