CF v KT

[2022] QDC 37

DISTRICT COURT OF QUEENSLAND

CITATION:

CF v KT [2022] QDC 37

PARTIES:

CF
(Appellant)

v

KT

(Respondent)

FILE NO/S:

BD 1111/2021

DIVISION:

Appellate

DELIVERED ON:

3 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2022

JUDGE:

Barlow QC DCJ

ORDERS:

1.   The appeal be allowed.

2.   The orders of the magistrate made on 13 April 2021 be set aside.

3.   The proceeding be remitted to the Magistrates Court for a fresh hearing before a different magistrate.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITTNESS – GENRALLY – where the appellate appeals against a protection order made against him by a magistrate – where the magistrate made findings of fact which were not supported by the evidence – where findings of credit formed a significant part of the magistrate’s decision

Domestic and Family Violence Protection Act 2012 (Qld) Justices Act 1886 (Qld) ss 222

Allesch v Maunz (2000) 203 CLR 172
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598

COUNSEL:

Appellant self-represented

Z.G. Brereton, for the respondent

SOLICITORS:

Legal Aid for the respondent

1. The appellant, CF,[1] appeals pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (DV Act), against a protection order under s 37 of that Act made against him by a magistrate.  The order was for the benefit of the respondent, KT, and her two children (whose father is the appellant).

   [1]I have anonymised the parties to avoid identifying their children, in particular.

2. CF was self-represented in this appeal but represented by a solicitor in the Magistrates’ Court hearing.  KT was represented by counsel in this appeal and by a solicitor below.  

3. For the following reasons, the appeal should be allowed and the magistrate’s order should be set aside.  The matter should be remitted to the Magistrates Court for a fresh hearing before a different magistrate.

4. The appellant’s notice of appeal is somewhat discursive, but it is possible to glean the following grounds:[2]

   (a)the magistrate made a number of factual findings that are not supported by the evidence;

   (b)the appellant was denied procedural fairness, in that he was not permitted to inspect and copy subpoenaed documents until the morning of the hearing;

   (c)the magistrate failed to give adequate reasons for her decision;

   (d)the magistrate failed to take into account relevant considerations; and

   (e)the decision was affected by apprehended bias on the part of the magistrate.

   [2]This description of the grounds is substantially taken from the respondent’s written outline of submissions.

5. The appellant seeks orders allowing the appeal and setting aside the magistrate’s decision.  He did not seek an order that the matter be remitted to the Magistrates Court for a fresh hearing.

6. In an appeal of this nature, “the powers of the appellate court are exercisable only where the appellant can demonstrate…