DISTRICT COURT OF QUEENSLAND
CITATION:
CNE v VYN & Anor [2024] QDC 90
PARTIES:
CNE
(appellant)v
VYN
(first respondent)
and
COMMISSIONER OF POLICE
(second respondent)FILE NO:
2464 of 2023
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Wynnum Magistrates Court
DELIVERED ON: Judgment delivered ex tempore 31 May 2024.
Reasons delivered 13 June 2024.
DELIVERED AT:
Brisbane
HEARING DATE:
31 May 2024.
JUDGE:
Byrne KC DCJ
ORDERS:
1. The appeal is allowed.
2. The matter is remitted to the Magistrates Court at Brisbane to be heard by a different Magistrate.
3. No order as to costs.
CATCHWORDS:
APPEAL – DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 – where an application for a protection order was made after a police protection notice was issued– where a temporary protection order was sought at the first mention – where the respondent argued that a temporary protection order should not be granted - where the Magistrate dismissed the whole of the application at the first mention –whether it was an appropriate case for summary dismissal – whether there had been a denial of natural justice by the Magistrate not alerting the parties that he was considering dismissing the whole of the application.
APPEAL – DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 - where a police protection notice was issued in favour of the aggrieved against the first respondent – where the Magistrate directly questioned the aggrieved at the first mention, who was not legally represented – whether that was breach of procedural fairness.
APPEAL – DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 - where a police protection notice was issued in favour of the aggrieved against the first respondent – where the Magistrate dismissed the whole of the application at the first mentioned – where the appellant succeeded on appeal – whether the police protection notice was automatically revived on the success of the appeal.
LEGISLATION:
Domestic and Family Violence Protection Act2012 (Qld) ss. 3, 4, 11, 23(2), 37, 45, 56, 78, 101, 106A, 107A, 111(3), 112, 145(1), 157, 164, 167, 168, 169.
District Court of Queensland Act 1967 (Qld) s. 113.
Uniform Civil Procedure Rules 1999 (Qld) rr. 766, 785.CASES:
Allesch v Maunz (2000) 203 CLR 172.
Bui v SNL and Anor [2021] QDC 285.
CEE v CNH [2024] QDC 76.
Coal v Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194.
DMO v RPD [2009] QDC 92.
Fox v Percy (2003) 214 CLR 118.
Gartner v Brennan [2016] WASC 89.
Grassby v The Queen (1989) 168 CLR 1.
HDI v HJQ [2020] QDC 83.
House v King (1936) 55 CLR 449.
Kioa v West (1985) 159 CLR 550.
McDonald v Queensland Police Service [2018] 2 Qd R 612.
MNT v MEE (No. 2) [2020] QDC 100.
OSE v HAN [2020] QDC 309.
R v War Pensions Entitlement Tribunal; ex parte Bott (1933) 50 CLR 228.
Robinson Helicopter Company Inc. v McDermott (2016) 90 ALJR…
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- AGLC
- CNE v VYN [2024] QDC 90
- Case
- [2024] QDC 90
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether the Magistrate had the authority to summarily dismiss the application for a protection order and if the dismissal was justified under the circumstances. It also examined whether the Magistrate's conduct during the first mention, including questioning the applicant who was not legally represented, constituted a breach of procedural fairness. The appeal further explored whether the police protection notice was automatically revived upon the success of the appeal.
In the appeal, the court found that the Magistrate erred in summarily dismissing the application for a protection order. The court highlighted that while there is an implied power to dismiss applications summarily, this should only occur in the clearest of cases and with exceptional caution. The court noted that at the first mention, the matter was not at an advanced stage, and there was insufficient evidence to warrant summary dismissal. The court also found that the Magistrate's questioning of the applicant, who was not legally represented, was a breach of procedural fairness. The appeal was allowed, and the matter was remitted to the Magistrates Court at Brisbane to be heard by a different Magistrate.
The final orders of the court were to allow the appeal, remit the matter to the Magistrates Court at Brisbane to be heard by a different Magistrate, and make no order as to costs.
Orders
Orders of the court
1. The appeal is allowed.
2. The matter is remitted to the Magistrates Court at Brisbane to be heard by a different Magistrate.
3. 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
Then, after ascertaining that the appellant had engaged a “family lawyer”, his Honour said:“I think given that that is the next logical step where this is going to go I do not think it is appropriate that the Court grant a domestic violence order today. These matters are well in hand and the parties have had the good sense to engage lawyers. And that, I think, is really the jurisdiction where these matters are going to be properly resolved. On that basis I intend to strike out the application given it is a police application. … But on the basis as it has been presented today I am not satisfied there is sufficient evidence there that the Court would activate the jurisdiction, so I am striking the police application out.”[22][22]Affidavit of Rebecca Elsa Fogerty affirmed 28 February 2024 p. 37, l 48 - p. 38, l 11.ConsiderationGround 3: The learned Magistrate erred in summarily dismissing the application for a Protection Order. As this is the ground which was, properly, conceded by the first respondent, it is convenient to deal with it first. In OSE v HAN,[23] I found that there was an implied power contained within the Act to summarily dismiss an application for a PO. However, I also found that an application for a summary dismissal should only be granted in the clearest of cases and with the exercise of exceptional caution. I further found that it was required that an application not be summarily dismissed where there is any evidence which, when taken its highest, is capable of supporting the grant of an application. [23][2020] QDC 309, [46], [50]-[52]. Notably, the application there entertained was at an advanced stage of a contested hearing for a PO. Affidavits had been filed by both the appellant and the respondent in those proceedings, and the appellant had been cross-examined on three separate dates. The fact that the respondent had not yet been cross-examined was a relevant consideration, and affected what material should be relied on.[24] [24]OSE v HAN, supra at [59](b) and [90]. In the present case, the matter was at its first mention. There had not been any directions for the filing of material, let alone any filed. It was far from a clear case that warranted summary dismissal and, although the Magistrate appears to have weighed the material before him, it cannot be said that he exercised exceptional caution. The power to summarily dismiss applications of this nature is not to be used as some form of triaging the matters deemed suitable to proceed to a hearing stage. That error is compounded when the justification for dismissal of the proceedings is based on a value-judgment generated by, given the workload of the Magistrates Court, a necessarily brief reading of the preliminary material,[25] and questioning of the aggrieved, who was not then legally represented. His Honour did not know whether the respondent would even file material in response, which may have contained some admissions as to certain conduct. [25]His Honour was interrupted in the course of his reasons and was taken to the allegations of sexual touching, of which he was obviously not previously aware.