Cao v HAT - [2014] QCA 61

SUPREME COURT OF QUEENSLAND

CITATION:

CAO v HAT & Ors [2014] QCA 61

PARTIES:

CAO
(applicant)
v
HAT
(first respondent)
COMMISSIONER OF POLICE
(second respondent)
LEIGH THOMAS MADDEN
(third respondent)
PAUL PETER PATTY
(fourth respondent)

FILE NO/S:

Appeal No 3292 of 2013
DC No 3309 of 2008
DC No 3046 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2013

JUDGES:

Margaret McMurdo P, Morrison JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to adduce new evidence refused.1.

Application for leave to appeal refused.2.

The applicant must pay the costs of the third and fourth respondents of the application for leave to appeal to be assessed.3.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where a domestic violence order was made against the applicant in 2008 – where the applicant in 2009 was unsuccessful in appealing the domestic violence order – where the applicant’s application to reopen the 2009 appeal was dismissed by the primary judge – where the applicant applied in 2012 for the revocation of the domestic violence order – where the magistrate refused to revoke the domestic violence order – where the applicant’s appeal against that refusal was dismissed by the primary judge – where the applicant applied to adduce new evidence on the application for leave to appeal the decision of the primary judge – where the evidence was ascertainable by the applicant for the hearing before the primary judge – where the futility of the appeals makes the new evidence irrelevant

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where a domestic violence order was made against the applicant in 2008 – where the applicant applied for the revocation of the order – where the magistrate dismissed the application – where the applicant’s appeal against the refusal of the magistrate to revoke the order was dismissed by the primary judge – where s 169(2) Domestic and Family Violence Protection Act 2012 (Qld) provides that the decision of the appellate court is final and conclusive – whether there is jurisdiction for an appeal from the primary judge’s dismissal of the magistrate’s refusal to revoke the domestic violence order

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the applicant was unsuccessful in an appeal to the District Court in 2009 against a domestic violence order – where the applicant sought leave to reopen the 2009 appeal – where s 66(5) Domestic and Family Violence Protection Act 1989 (Qld) provided the decision of the District Court was final and conclusive – whether there…

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 [2014] QCA 61
Case: [2014] QCA 61
Decision Date: 1 April 2014

CaseChat Overview and Summary

Cao filed an appeal against a decision of a primary judge, who dismissed his appeal against the refusal by a magistrate to revoke a domestic violence order made against him in 2008. Cao also sought leave to adduce new evidence on the application for leave to appeal the decision of the primary judge. The appeal and the application for leave to adduce new evidence were heard in the Queensland Court of Appeal.

The court considered whether there was jurisdiction for an appeal from the primary judge’s dismissal of the magistrate’s refusal to revoke the domestic violence order, and whether there was jurisdiction for an appeal from the primary judge’s refusal to grant leave to reopen the 2009 appeal. The court also considered whether the primary judge erred in dismissing the applications for contempt against the second, third and fourth respondents, who were Cao’s former partners.

The court held that the decision of the appellate court was final and conclusive, and that there was no jurisdiction for an appeal from the primary judge’s dismissal of the magistrate’s refusal to revoke the domestic violence order. The court also held that there was no jurisdiction for an appeal from the primary judge’s refusal to grant leave to reopen the 2009 appeal, as the decision of the District Court was final and conclusive. The court further held that the primary judge did not err in dismissing the applications for contempt against the second, third and fourth respondents, as Cao failed to personally serve the respective applications and supporting affidavit on the relevant respondents. The application for leave to adduce new evidence was refused as the evidence was ascertainable by Cao for the hearing before the primary judge, and the futility of the appeals made the new evidence irrelevant.

The application for leave to adduce new evidence was refused. The application for leave to appeal was refused. Cao must pay the costs of the third and fourth respondents of the application for leave to appeal to be assessed.

Orders

Orders of the court

Application for leave to adduce new evidence refused.1.

Application for leave to appeal refused.2.

The applicant must pay the costs of the third and fourth respondents of the application for leave to appeal to be assessed.3.

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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CITATION:	CAO v HAT & Ors [2014] QCA 61
PARTIES:	CAO (applicant) v HAT (first respondent) COMMISSIONER OF POLICE (second respondent) LEIGH THOMAS MADDEN (third respondent) PAUL PETER PATTY (fourth respondent)
FILE NO/S:	Appeal No 3292 of 2013 DC No 3309 of 2008 DC No 3046 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	1 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	14 October 2013
JUDGES:	Margaret McMurdo P, Morrison JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Application for leave to adduce new evidence refused.1. Application for leave to appeal refused.2. The applicant must pay the costs of the third and fourth respondents of the application for leave to appeal to be assessed.3.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where a domestic violence order was made against the applicant in 2008 – where the applicant in 2009 was unsuccessful in appealing the domestic violence order – where the applicant’s application to reopen the 2009 appeal was dismissed by the primary judge – where the applicant applied in 2012 for the revocation of the domestic violence order – where the magistrate refused to revoke the domestic violence order – where the applicant’s appeal against that refusal was dismissed by the primary judge – where the applicant applied to adduce new evidence on the application for leave to appeal the decision of the primary judge – where the evidence was ascertainable by the applicant for the hearing before the primary judge – where the futility of the appeals makes the new evidence irrelevant APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where a domestic violence order was made against the applicant in 2008 – where the applicant applied for the revocation of the order – where the magistrate dismissed the application – where the applicant’s appeal against the refusal of the magistrate to revoke the order was dismissed by the primary judge – where s 169(2) Domestic and Family Violence Protection Act 2012 (Qld) provides that the decision of the appellate court is final and conclusive – whether there is jurisdiction for an appeal from the primary judge’s dismissal of the magistrate’s refusal to revoke the domestic violence order APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where the applicant was unsuccessful in an appeal to the District Court in 2009 against a domestic violence order – where the applicant sought leave to reopen the 2009 appeal – where s 66(5) Domestic and Family Violence Protection Act 1989 (Qld) provided the decision of the District Court was final and conclusive – whether there…