BLJ v QLB - [2018] QDC 14

DISTRICT COURT OF QUEENSLAND

CITATION:

BLJ v QLB & Another [2018] QDC 14

PARTIES:

BLJ
(appellant)

v

QLB
(first respondent)

and

THE COMMISSIONER OF THE POLICE SERVICE
(second respondent)

FILE NO:

3353 of 2017

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

20 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2018

JUDGE:

Rosengren DCJ

ORDER:

1.   Appeal is allowed.

2.   Application to adduce fresh evidence is granted.

3.   Orders of 8 August 2017 are set aside and the matter is remitted to the Magistrates Court at Brisbane for rehearing according to law.

4.   No order as to costs.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – APPEAL AND REVIEW – where the appellant appeals a protection order made pursuant to s 164 of the Domestic Violence and Protection Act 2012 – where the order was made in the Magistrates Court at a pre-trial mention where the appellant failed to appear – whether the appellant was denied procedural fairness

APPLICATION TO ADDUCE FURTHER EVIDENCE – where the appellant made an application at the hearing of the appeal to adduce fresh evidence – whether exceptional circumstances exist to allow the application

Domestic Violence and Protection Act 2012 (Qld), ss 37, 157 168, 169, 39(2)(b)

GKE v EUT [2014] QDC 248, cited
University of Wollongong v Metwally (No 2) 1985 59 ALJR 481 at 483, cited
Rattan v The Queen (1974) 131 CLR 510 at 519, cited    National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 at 312, cited Allesch v Maunz [2000] HCA 40, cited Oshlack v Richmond River Council (1998) 193 CLR 72, cited Taylor v Taylor (1979) 143 CLR 1, cited

COUNSEL:

SK Hartwell for the appellant
No appearance by the first respondent
E Kennedy (sol) for the second respondent

SOLICITORS:

Bickford Lawyers for the appellant
No appearance by the first respondent  Legal Unit of the Queensland Police Service for the second respondent

On 8 August 2017, at a pre-trial mention, a protection order was made in the Brisbane Magistrates Court pursuant to s 37 of the Domestic Violence and Protection Act 2012 (‘the Act’). It was made against the appellant in favour of the first respondent and their child. The appellant was not present at the hearing.
The appellant appeals against the learned Magistrate’s decisions to dismiss his application to extend time for the filing of his affidavit material and to make the protection order, on the following bases:
(i) the appellant was denied procedural fairness;
(ii)the Magistrate erred in finding that the appellant had committed an act of domestic violence;
(iii)the Magistrate failed to find that the protection order was necessary or desirable; and
(iv)the Magistrate erred in finding that the protection order was necessary or desirable.
At the hearing of the appeal, the appellant and the second respondent were represented. The first respondent was not represented and did not appear. The appeal was opposed by the second respondent.
For the…

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 BLJ v QLB

Details

AGLC: BLJ v QLB & Another [2018] QDC 14
Case: [2018] QDC 14
Decision Date: 20 February 2018

CaseChat Overview and Summary

The appellant, BLJ, has appealed a protection order made by the Magistrates Court at Brisbane on 8 August 2017, pursuant to section 164 of the Domestic Violence and Protection Act 2012. The order was made during a pre-trial mention when BLJ did not appear. The respondent, QLB, is the applicant for the protection order. The legal dispute before the court was whether the appellant was denied procedural fairness and whether exceptional circumstances existed to allow the appellant to adduce fresh evidence.

The court was required to determine whether the appellant was denied procedural fairness due to their absence at the pre-trial mention and whether there were exceptional circumstances that justified the admission of fresh evidence at the appeal hearing. The appellant argued that their absence was due to an administrative error and that they were unaware of the mention. They further submitted that the new evidence would be crucial to rebut the allegations of domestic violence.

The court found that the appellant was indeed denied procedural fairness as their absence was not due to any fault on their part. The court further held that exceptional circumstances existed to permit the appellant to adduce fresh evidence. Consequently, the appeal was allowed, and the orders made on 8 August 2017 were set aside. The matter was remitted to the Magistrates Court at Brisbane for rehearing according to law. No order was made regarding costs.

Orders

Orders of the court

1. Appeal is allowed.

2. Application to adduce fresh evidence is granted.

3. Orders of 8 August 2017 are set aside and the matter is remitted to the Magistrates Court at Brisbane for rehearing according to law.

4. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

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:	BLJ v QLB & Another [2018] QDC 14
PARTIES:	BLJ (appellant) v QLB (first respondent) and THE COMMISSIONER OF THE POLICE SERVICE (second respondent)
FILE NO:	3353 of 2017
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	20 February 2018
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2018
JUDGE:	Rosengren DCJ
ORDER:	1. Appeal is allowed. 2. Application to adduce fresh evidence is granted. 3. Orders of 8 August 2017 are set aside and the matter is remitted to the Magistrates Court at Brisbane for rehearing according to law. 4. No order as to costs.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DOMESTIC VIOLENCE – APPEAL AND REVIEW – where the appellant appeals a protection order made pursuant to s 164 of the Domestic Violence and Protection Act 2012 – where the order was made in the Magistrates Court at a pre-trial mention where the appellant failed to appear – whether the appellant was denied procedural fairness APPLICATION TO ADDUCE FURTHER EVIDENCE – where the appellant made an application at the hearing of the appeal to adduce fresh evidence – whether exceptional circumstances exist to allow the application Domestic Violence and Protection Act 2012 (Qld), ss 37, 157 168, 169, 39(2)(b) GKE v EUT [2014] QDC 248, cited University of Wollongong v Metwally (No 2) 1985 59 ALJR 481 at 483, cited Rattan v The Queen (1974) 131 CLR 510 at 519, cited National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296 at 312, cited Allesch v Maunz [2000] HCA 40, cited Oshlack v Richmond River Council (1998) 193 CLR 72, cited Taylor v Taylor (1979) 143 CLR 1, cited
COUNSEL:	SK Hartwell for the appellant No appearance by the first respondent E Kennedy (sol) for the second respondent
SOLICITORS:	Bickford Lawyers for the appellant No appearance by the first respondent Legal Unit of the Queensland Police Service for the second respondent