COA v HAT - [2013] QCA 272

[2013] QCA 272

COURT OF APPEAL

MARGARET McMURDO P
MUIR JA
PHILIPPIDES J

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

CAO Applicant

HAT First Respondent

QUEENSLAND COMMISSIONER OF POLICE Second Respondent

LEIGH THOMAS MADDEN Third Respondent

PAUL PETER PATTY Fourth Respondent

BRISBANE

MONDAY, 23 SEPTEMBER 2013

THE PRESIDENT: The applicant, who is self-represented, has applied for leave to appeal from an order of a District Court judge made on 15 March 2013, dismissing her application to reopen an appeal concerning a domestic violence order made against her and dismissing her appeal against the dismissal of her application to revoke that order: see CAO v HAT [2013] QDC 42.

The first respondent to her application for leave to appeal is her daughter. The applicant's daughter indicated to the registry on 19 June this year that she wants the domestic violence order to remain in place and does not wish to be involved in the applicant's ongoing litigation in the matter. She has no wish to make any further submission in the proceedings and does not intend to attend court hearings. The lawyer for the second respondent, the Commissioner of Police, informed this Court today that he spoke to the first respondent this morning and she confirmed that she did not wish to appear today or make submissions to the Court. The lawyer for the second respondent also made no written submissions and stated his client would also abide the orders of the Court in today’s proceedings.

The applicant has also applied for leave to appeal from the District Court judge’s order refusing to deal with her applications for the second, third and fourth respondents to be charged with contempt of court. Her application for leave to appeal to this Court named the first and second respondents as parties but not the third respondent, Leigh Thomas Madden, an officer in the Magistrates Court. Nor did it name as a party the fourth respondent, Paul Peter Patty, a legal support officer in the Office of the Director of Public Prosecutions (Queensland).

On 31 July this year, the third and fourth respondents applied to this Court to be joined as respondents to the applicant's application for leave to appeal and any resulting appeal. In determining that preliminary application, Fraser JA found that, despite the applicant's opposition, the third and fourth respondents had a strong and direct interest in being parties to her proceedings in this Court and ordered that they be joined.

The applicant today originally sought to have the third and fourth respondents removed as respondents to her application for leave to appeal, which I note is listed for hearing before this Court on Monday 14 October. At one point during today’s hearing, she stated that she would amend her application for leave to appeal and her proposed notice of appeal to remove all reference to the third and fourth respondents. Counsel for the third and fourth respondents indicated that they would have…

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 COA v HAT

Details

AGLC: COA v HAT [2013] QCA 272
Case: [2013] QCA 272
Decision Date: 23 SEPTEMBER 2013

CaseChat Overview and Summary

In this case, the applicant, who is self-represented, sought leave to appeal against a District Court decision which dismissed her application to reopen an appeal concerning a domestic violence order made against her. The applicant also sought leave to appeal the dismissal of her appeal against the revocation of that order. Additionally, she sought to appeal the District Court's refusal to deal with her applications for the third and fourth respondents to be charged with contempt of court. The Court of Appeal was asked to transfer the proceedings to the Court of Appeal of the Supreme Court of New South Wales.

The legal issues before the Court of Appeal were whether the Court had jurisdiction to transfer the proceedings to the New South Wales Court of Appeal under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), and whether it was in the interests of justice for the application for leave to appeal to be determined by the New South Wales Supreme Court. The applicant also alleged bias on the part of the Queensland judiciary and registry staff.

The Court of Appeal held that the Cross-vesting Act might not apply to quasi-criminal matters such as the applicant's application for leave to appeal. Even if the Act did apply, the Court found that it was not in the interests of justice for the application for leave to appeal to be determined by the New South Wales Supreme Court. The Court further held that there was no evidence to substantiate the applicant's allegations of bias against the Queensland judicial system and its registry staff. The Court emphasised that the entitlement to an impartial tribunal is fundamental to the justice system, and that the Court of Appeal would deal impartially with the applicant's allegations of bias against the District Court judge.

The Court of Appeal refused the applicant's application to transfer the proceedings to the Court of Appeal of the Supreme Court of New South Wales, and ordered the applicant to pay costs.

Orders