CAO v HAT - [2013] QDC 42

DISTRICT COURT OF QUEENSLAND

CITATION:

CAO v HAT [2013] QDC 42

PARTIES:

CAO
(applicant/appellant)
v
HAT
(first respondent)
COMMISSIONER OF POLICE
(second respondent)

FILE NO/S:

DC No 3046 of 2012
DC No 3309 of 2008

DIVISION:

Civil

PROCEEDING:

DC No 3046 of 2012- General Civil Appeal - Miscellaneous Application – Civil;

DC No 3309 of 2008 - Miscellaneous Application – Civil

ORIGINATING COURT:

DC No 3046 of 2012 - Magistrates Court at Brisbane

DELIVERED ON:

15 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2013

JUDGE:

Devereaux SC DCJ

ORDER:

DC No 3046 of 2012

1.    The appeal is dismissed.

2.    The applications, filed within the appeal proceeding, that charges of contempt of court be brought against three named persons are dismissed.

DC No 3309 of 2008

3.   The application to re-open the appeal is dismissed.

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – IN GENERAL – applications for contempt filed pursuant to r 925 Uniform Civil Procedure Rules 1999 (Qld) – where application relied on five affidavits – where earlier court orders required proof of service of applications and any supporting affidavits – where applicant sent applications and one affidavit in support by registered post – whether personal service effected on respondents pursuant to r 106 Uniform Civil Procedure Rules 1999 (Qld) – whether earlier orders satisfied

MAGISTRATES – ORDERS AND CONVICTIONS – ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY – VARIATION, REVOCATION AND EXTENSION – where domestic violence order obtained against appellant – where appellant unsuccessful in application to revoke – where appellant appeals against decision refusing revocation – where it was argued that subpoenaed material proved the aggrieved lied to the original trial so that the original order was obtained by fraud for the purposes of r 667 Uniform Civil Procedure Rules 1999 (Qld) – whether there was an error regarding various sections of the Domestic and Family Violence Protection Act 1989 (Qld) (repealed) – whether primary court unfairly pre-determined the outcome – whether there are sufficient grounds to allow an appeal to revoke the domestic violence order

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – APPEAL AND NEW TRIAL – where applicant applies for leave to re-open appeal decision of District Court judge – where application relies on s 147A Justices Act 1886 (Qld) – whether applicant can seek leave to re-open appeal

District Court of Queensland Act 1967 (Qld), s 129
Domestic and Family Violence Protection Act 1989 (Qld) (repealed), s 17A, s 34 , s 35, s 36, s 38, s 47(5), s 48, s 48(5), s 51, s 63, s 64(A)
Domestic and Family Violence Protection Act 2012 (Qld), s 34, s 39, s 91, s 92, s 165, s 167, s 168, s 209
Justices Act 1886 (Qld), s 147A
Uniform Civil Procedure Rules 1999 (Qld), r 106, r 667, r 668, r 925, r 926

CAO v Hedges [2013] QCA 1, cited
Cloud v…

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 CAO v HAT

Details

AGLC: CAO v HAT [2013] QDC 42
Case: [2013] QDC 42
Decision Date: 15 March 2013

CaseChat Overview and Summary

CAO commenced proceedings against HAT in the District Court, challenging the validity of a domestic violence order against CAO. The dispute centred on the procedural fairness of the original decision and the contention that the order was obtained by fraud. The case was heard by the Queensland Court of Appeal. The primary legal issues revolved around the service of process, the grounds for revoking a domestic violence order, and the authority to re-open an appeal.

The Court of Appeal first addressed the issue of service of process. It found that the applicant had not complied with the earlier court orders to serve all applications and supporting affidavits on the respondents. The applicant had only served one affidavit by registered post, not all required documents, and had not provided evidence of personal service. The Court held that this non-compliance with court orders rendered the applications for contempt defective. Regarding the revocation of the domestic violence order, the Court examined the evidence presented by CAO and found no merit in the argument that the order was obtained by fraud or that there were errors in the primary court's interpretation of the Domestic and Family Violence Protection Act 1989 (Qld). The Court also dismissed the argument that the primary court had pre-determined the outcome of the appeal.

The Court of Appeal dismissed the appeal and the applications for contempt, holding that the procedural errors in serving the applications and affidavits were fatal to the proceedings. The Court also dismissed the application to re-open the appeal, finding no grounds for leave under s 147A Justices Act 1886 (Qld). Consequently, the appeal was dismissed, and the applications for contempt were also dismissed.

Orders

Orders of the court

DC No 3046 of 2012

1. The appeal is dismissed.

2. The applications, filed within the appeal proceeding, that charges of contempt of court be brought against three named persons are dismissed.

DC No 3309 of 2008

3. The application to re-open the appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CAO v HAT [2013] QDC 42
PARTIES:	CAO (applicant/appellant) v HAT (first respondent) COMMISSIONER OF POLICE (second respondent)
FILE NO/S:	DC No 3046 of 2012 DC No 3309 of 2008
DIVISION:	Civil
PROCEEDING:	DC No 3046 of 2012- General Civil Appeal - Miscellaneous Application – Civil; DC No 3309 of 2008 - Miscellaneous Application – Civil
ORIGINATING COURT:	DC No 3046 of 2012 - Magistrates Court at Brisbane
DELIVERED ON:	15 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	11 March 2013
JUDGE:	Devereaux SC DCJ
ORDER:	DC No 3046 of 2012 1. The appeal is dismissed. 2. The applications, filed within the appeal proceeding, that charges of contempt of court be brought against three named persons are dismissed. DC No 3309 of 2008 3. The application to re-open the appeal is dismissed.
CATCHWORDS:	PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – IN GENERAL – applications for contempt filed pursuant to r 925 Uniform Civil Procedure Rules 1999 (Qld) – where application relied on five affidavits – where earlier court orders required proof of service of applications and any supporting affidavits – where applicant sent applications and one affidavit in support by registered post – whether personal service effected on respondents pursuant to r 106 Uniform Civil Procedure Rules 1999 (Qld) – whether earlier orders satisfied MAGISTRATES – ORDERS AND CONVICTIONS – ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY – VARIATION, REVOCATION AND EXTENSION – where domestic violence order obtained against appellant – where appellant unsuccessful in application to revoke – where appellant appeals against decision refusing revocation – where it was argued that subpoenaed material proved the aggrieved lied to the original trial so that the original order was obtained by fraud for the purposes of r 667 Uniform Civil Procedure Rules 1999 (Qld) – whether there was an error regarding various sections of the Domestic and Family Violence Protection Act 1989 (Qld) (repealed) – whether primary court unfairly pre-determined the outcome – whether there are sufficient grounds to allow an appeal to revoke the domestic violence order PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – APPEAL AND NEW TRIAL – where applicant applies for leave to re-open appeal decision of District Court judge – where application relies on s 147A Justices Act 1886 (Qld) – whether applicant can seek leave to re-open appeal District Court of Queensland Act 1967 (Qld), s 129 Domestic and Family Violence Protection Act 1989 (Qld) (repealed), s 17A, s 34 , s 35, s 36, s 38, s 47(5), s 48, s 48(5), s 51, s 63, s 64(A) Domestic and Family Violence Protection Act 2012 (Qld), s 34, s 39, s 91, s 92, s 165, s 167, s 168, s 209 Justices Act 1886 (Qld), s 147A Uniform Civil Procedure Rules 1999 (Qld), r 106, r 667, r 668, r 925, r 926 CAO v Hedges [2013] QCA 1, cited Cloud v…