SUPREME COURT OF QUEENSLAND
CITATION:
Bell v Bay-Jespersen [2004] QCA 68
PARTIES:
IAN BRUCE BELL
(applicant/respondent)
v
R H LIEBSANFT, Acting Magistrate
(first respondent)
S C JOHNSTONE, Magistrate
(second respondent)
D F WILKINSON, Magistrate
(third respondent)
ANGELA MONIQUE BAY-JESPERSEN(fourth respondent/applicant)
FILE NO/S:
Appeal No 9591 of 2003
SC No 4921 of 2003
DIVISION:
Court of Appeal
PROCEEDING:
Application for Security for Costs
Miscellaneous Application – Civil
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
19 March 2004
DELIVERED AT:
Brisbane
HEARING DATE:
1 March 2004
JUDGES:
McMurdo P, McPherson JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Application filed by respondent on 27 February 2004 dismissed with costs
2. Affidavit in support of application filed by respondent on 27 February 2004 must be removed from the file and placed in a sealed envelope marked “not to be opened except by order of the Court or Judge”
3. Until further order, the respondent’s application dated 17 December 2003 for leave to appeal and to extend the time for doing so, from the orders of the Supreme Court made on 26 September 2003 and 13 November 2003 in no S4921 of 2003, and all proceedings in that application and the appeal filed on 27 October 2003 be stayed until the respondent gives security in the sum of $10,000 in such form as may be agreed by the parties or in default determined by the Registrar for the costs of that application.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – JURISDICTION – EXISTENCE OF OTHER RIGHTS OF REVIEW – whether application for judicial review of temporary protection order should have been dismissed because adequate provision made for review by appeal to District Court in s 63 of Domestic and Family Violence Protection Act
FAMILY LAW AND CHILD WELFARE – FAMILY LAW ACT 1975 AND RELATED LEGISLATION – TEMPORARY PROTECTION ORDERS – whether when making and subsequently extending such an order magistrate should have had regard to rules of evidence despite s 84(2) of Domestic and Family Violence Protection Act
PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where appeal incompetent as leave not obtained – whether Court of Appeal has power under UCPR r 670 to grant security for costs in application for leave to appeal – whether Court should exercise discretion to do so
Domestic and Family Violence Protection Act 1989 (Qld), s 13(3), s 34B(1)(g), s 39A, s 63, s 64, s 65
Judicial Review Act 1991 (Qld), s 12, s 14(b), s 20, s 43, s 48 (5)
Uniform Civil Procedure Rules 1999 (Qld) r 440, r 670, r 671, r 672, r 771Capricorn Inks Pty Ltd v Lawter International (Australiasia) Pty Ltd [1989] 1 Qd R 8, referred to
Johns v Johns [1988] 1 Qd R 138, referred to
Jiminez v Jayform Contracting Pty Ltd [1993] 1 Qd R 610, referred to
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- AGLC
- Bell v Bay-Jespersen [2004] QCA 68
- Case
- [2004] QCA 68
- Decision Date
CaseChat Overview and Summary
The central legal issues addressed by the Court of Appeal were whether the Supreme Court should have dismissed the application for judicial review because an adequate provision for review had been made by appeal to the District Court under section 63 of the Domestic and Family Violence Protection Act 1994 (Qld). Another issue was whether the magistrate should have considered the rules of evidence when making and extending the TPO, despite section 84(2) of the Act, which provides that evidence need not conform to the rules of evidence. Lastly, the Court considered whether it had the power to grant security for costs in an incompetent appeal and whether it should exercise the discretion to do so.
The Court of Appeal found that the Supreme Court had correctly exercised its jurisdiction, and the application for judicial review should have been dismissed. The Court held that the statutory scheme provided adequate avenues for review, and the magistrate was not required to apply the rules of evidence in making the TPO. Regarding the appeal, the Court determined that it did have the power to grant security for costs in an incompetent appeal under UCPR rule 670, and it exercised its discretion to do so.
The orders of the Court of Appeal were that the application filed by the respondent on 27 February 2004 be dismissed with costs, the affidavit in support of the application be removed from the file and sealed, and the appeal and related proceedings be stayed until the respondent gave security for costs in the sum of $10,000.
Orders
Orders of the court
1. Application filed by respondent on 27 February 2004 dismissed with costs
2. Affidavit in support of application filed by respondent on 27 February 2004 must be removed from the file and placed in a sealed envelope marked “not to be opened except by order of the Court or Judge”
3. Until further order, the respondent’s application dated 17 December 2003 for leave to appeal and to extend the time for doing so, from the orders of the Supreme Court made on 26 September 2003 and 13 November 2003 in no S4921 of 2003, and all proceedings in that application and the appeal filed on 27 October 2003 be stayed until the respondent gives security in the sum of $10,000 in such form as may be agreed by the parties or in default determined by the Registrar for the costs of that application.
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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