DISTRICT COURT OF QUEENSLAND
CITATION:
CEE v CNH [2024] QDC 76
PARTIES:
CEE
(appellant)
v
CNH
(respondent)FILE NO:
405 of 2024
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Pine Rivers Magistrates Court
DELIVERED ON:
7 June 2024.
DELIVERED AT:
Brisbane
HEARING DATE:
20 May 2024.
JUDGE:
Byrne KC DCJ
ORDERS:
1. Appeal allowed.
2. The orders of the Pine Rivers Magistrates Court on 24 January 2024 are set aside.
3. The matter is remitted to the Pine Rivers Magistrates Court to be listed at the first convenient opportunity as notified by the Registrar of that Court to facilitate the further hearing of this application and the respondent’s application filed in January 2024.
4. The respondent is to pay the appellant’s costs, fixed in the sum of $144.70, within one month of today.
CATCHWORDS:
APPEAL – DOMESTIC VIOLENCE - DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 – where the appellant and respondent each filed applications for a Protection Order– where both cross-applications were dismissed by the Magistrate – where the appellant appeals the judgment but the respondent does not – where the appellant submits that there were specific errors in the findings made, that the Magistrate failed to consider some of the evidence adduced to prove the fact that domestic violence occurred and that the reasons for judgment are inadequate– where some of the specific errors in fact finding alleged do not rise to the level of an appealable error – whether the Magistrate failed to consider the effect of some of the evidence – whether the reasons are inadequate and amount to an error of law.
APPEAL –DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 – where a temporary protection order had been granted to the appellant – where the Magistrate dismissed the application for a protection order – where the temporary protection order ceased to be of effect on that dismissal pursuant to s. 98(c) – where the appellant successfully appealed the dismissal – whether the temporary protection order is automatically revived on the successful appeal.
LEGISLATION:
Domestic and Family Violence Protection Act 2012 (Qld) ss. 4, 8(1), 8(2), 11, 12, 37, 37(1), 41C(2), 41G, 98, 145, 164, 168, 169, 169(1), 169(2).
CASES:
AK v Western Australia 2008) 232 CLR 438.
Allesch v Maunz (2000) 203 CLR 172.
Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333.
Coal v Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194.
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219.
Fox v Percy (2003) 214 CLR 118.
Gartner v Brennan [2016] WASC 89.
Grassby v The Queen (1989) 168 CLR 1.
Hamra v The Queen (2017) 260 CLR 479.
HBY v WBI [2020] QDC 81.
House v The King (1936) 55 CLR 499.
McDonald v Queensland Police Service [2018] 2 Qd R 612.
MNT v MEE (No 2) [2020] QDC 100.
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR…
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- AGLC
- CEE v CNH [2024] QDC 76
- Case
- [2024] QDC 76
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Magistrate had erred in making the findings, in considering the evidence, and in the adequacy of the reasons provided. The appeal raised questions about the standard of review for magistrates' decisions and the necessity for explicit findings on every allegation in complex cases. The appeal also sought clarification on whether a temporary protection order is automatically revived upon a successful appeal.
The court found that while some of the alleged errors in fact-finding did not rise to the level of appealable errors, the reasons for judgment needed to be assessed as a whole. The court concluded that the Magistrate had indeed made adverse credit findings against both parties, which could be inferred from the judgment. The appeal court emphasised the importance of providing adequate reasons, but also noted that the reasons must be read in context, including the manner in which the case was conducted and the evidence presented. The appeal court held that the reasons provided were sufficient to disclose the underlying intellectual process that led to the conclusions. The appeal court accepted that the Magistrate had appropriately considered the advantage of having seen and heard the testimony. The appeal court found no basis to depart from the adverse credit findings.
The appeal was allowed, and the orders of the Pine Rivers Magistrates Court were set aside. The matter was remitted to the Pine Rivers Magistrates Court for further hearing, with CNH ordered to pay CEE’s costs in the sum of $144.70 within one month.
Orders
Orders of the court
1. Appeal allowed.
2. The orders of the Pine Rivers Magistrates Court on 24 January 2024 are set aside.
3. The matter is remitted to the Pine Rivers Magistrates Court to be listed at the first convenient opportunity as notified by the Registrar of that Court to facilitate the further hearing of this application and the respondent’s application filed in January 2024.
4. The respondent is to pay the appellant’s costs, fixed in the sum of $144.70, within one month of today.
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
Further, it is submitted that there is no requirement for the Magistrate to have made a finding on every specific allegation in what was a case containing a myriad of sometimes minute and minor allegations. It will be sufficient if the finding can be inferred.ConsiderationCredit Findings I accept the submissions by both parties, but particularly pressed by the respondent, that the Magistrate had found that neither party’s accounts could be accepted. It should be inferred that her Honour made that finding where there was no independent support for the allegation, given the observation at paragraph 84 of the Reasons that it was significant that there was some support for one allegation from a third-party. The adverse finding as to the credit of both parties was not expressly made, but it is the only way that the judgment can be understood when read as a whole. Further, that acceptance is consistent with the short oral explanation given by her Honour at the time judgment was given and the reasons were delivered on 24 January 2024, where she said, in part, “The end result, however, is that both applications are dismissed without orders as to costs, effectively due to adverse credit findings in relation to both parties.”[11][11]T/s 24 January 2024 1-2 ll 6-8. The observations of Pritchard J (as her Honour then was) in Gartner v Brennan[12] are apposite, even though the present decision was not delivered ex tempore;“Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).” (footnotes omitted)[12][2016] WASC 89, [58]. Those observations do not obviate the need for adequate reasons being provided, but they illustrate why some latitude is appropriately given when critically reading them. For those reasons, I accept that adverse credit findings were made against each party, albeit not expressly. The need to respect the advantage that the Magistrate had in seeing and hearing the testimony has earlier been mentioned. I have read the whole of the transcript of the proceedings. Not all features that lead to an unfavourable impression of a witness’ credibility will necessarily be apparent on the face of the written record, however there are indicators in the transcript that tend to support the making of the adverse findings against each party. There is nothing that I can identify that would justify departing from those findings, bearing in mind the appropriate principles.[13] Accordingly, I must assess the evidence through the prism of that finding.[13]Fox v Percy, supra at [27]-[29].