Cousins v HAL and Ly - [2008] QCA 49

SUPREME COURT OF QUEENSLAND

CITATION:

Cousins v HAL & Anor [2008] QCA 49

PARTIES:

PETER COUSINS
(applicant)
v
HAL
(represented child)
LY
(second respondent)

FILE NO/S:

Appeal No 2046 of 2008
DC 117 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Childrens Court at Brisbane

DELIVERED EX TEMPORE ON:

7 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2008

JUDGES:

Fraser JA

ORDER:

1. Application dismissed

2. Applicant to pay the respondents’ costs of the application to be assessed on the indemnity basis

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – CREATION OF NEW STATUTORY JURISDICTION – NECESSITY FOR EXPRESS ENACTMENT – where an application for a child protection order was adjourned by a Childrens Court magistrate – where the magistrate made an interim custody order pending the hearing of the application – where the child’s parents appealed to the Childrens Court against that interim custody order – where the Childrens Court allowed a stay of the interim custody order subject to various conditions pending the appeal to the Childrens Court – where the Childrens Court was constituted by a judge of the District Court – where the applicant appealed to the Court of Appeal seeking a stay of the order made by the Childrens Court – whether s117(2) of the Child Protection Act 1999 (Qld) confers a right of appeal to the Court of Appeal from the decision of the Childrens Court

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DEFINITIONS – where s 118(3) of the District Court of Queensland Act 1967 (Qld) permitted appeals from the District Court to the Court of Appeal with leave of the Court of Appeal – where a judge of the District Court sat as a judge of the Childrens Court – whether the Childrens Court of Queensland established by the Childrens Court Act 1992 (Qld) may also be regarded as the District Court for the purposes of the right of appeal conferred by s 118(3) of the District Court of Queensland Act 1967 (Qld)

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant argued for a stay on the basis of a proceeding under the Judicial Review Act 1991 (Qld) – where the applicant contended that the judge who constituted the Childrens Court failed to take into account matters that the legislation required to be taken into account – where the applicant submitted that there were several findings by the Childrens Court judge that amounted to a finding that the application made below had no prospects of success – where the respondents contended that the findings of the Childrens Court Judge did not attract relief under the Judicial Review Act 1991 (Qld) as they did not extend to the judge’s authority to make any order or decision in the circumstances of the case – whether the findings of the Childrens Court Judge amounted to a finding that…

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.

Keep reading for free

Create a free CaseChat account to read Cousins v HAL and Ly and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] QCA 49
Decision Date: 7 March 2008

CaseChat Overview and Summary

The case of Cousins v HAL and Ly involved an application for a stay of an order made by the Childrens Court of Queensland. The parents of a child appealed an interim custody order made by a Childrens Court magistrate, and the appeal was heard by a judge of the District Court sitting as a judge of the Childrens Court. The applicant then appealed to the Court of Appeal seeking a stay of the order made by the Childrens Court. The applicant argued that s 117(2) of the Child Protection Act 1999 (Qld) confers a right of appeal to the Court of Appeal from the decision of the Childrens Court. The respondents argued that the Court of Appeal did not have jurisdiction to hear the appeal, as the appeal was from the decision of the Childrens Court rather than the District Court.

The legal issues in the case included whether s 117(2) of the Child Protection Act 1999 (Qld) conferred a right of appeal to the Court of Appeal from the decision of the Childrens Court, and whether the Childrens Court of Queensland could be regarded as the District Court for the purposes of the right of appeal conferred by s 118(3) of the District Court of Queensland Act 1967 (Qld). The court also considered whether the findings of the Childrens Court Judge amounted to a finding that the application made below had no prospects of success and whether the judge had ignored any precondition to her jurisdiction or disregarded the limits of her powers. Finally, the court considered whether an order for indemnity costs was warranted given that the application was misconceived because the Court of Appeal had no jurisdiction to hear the application.

The Court of Appeal found that s 117(2) of the Child Protection Act 1999 (Qld) did not confer a right of appeal to the Court of Appeal from the decision of the Childrens Court. The court held that the Childrens Court of Queensland could not be regarded as the District Court for the purposes of the right of appeal conferred by s 118(3) of the District Court of Queensland Act 1967 (Qld). The court also found that the findings of the Childrens Court Judge did not amount to a finding that the application made below had no prospects of success, and that the judge had not ignored any precondition to her jurisdiction or disregarded the limits of her powers. Finally, the court held that an order for indemnity costs was warranted given that the application was misconceived because the Court of Appeal had no jurisdiction to hear the application.
The orders of the Court of Appeal were that the application be dismissed and that the applicant pay the respondents’ costs of the application to be assessed on the indemnity basis.

Orders

Orders of the court

1. Application dismissed

2. Applicant to pay the respondents’ costs of the application to be assessed on the indemnity basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cousins v HAL & Anor [2008] QCA 49
PARTIES:	PETER COUSINS (applicant) v HAL (represented child) LY (second respondent)
FILE NO/S:	Appeal No 2046 of 2008 DC 117 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Childrens Court at Brisbane
DELIVERED EX TEMPORE ON:	7 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2008
JUDGES:	Fraser JA
ORDER:	1. Application dismissed 2. Applicant to pay the respondents’ costs of the application to be assessed on the indemnity basis
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – CREATION OF NEW STATUTORY JURISDICTION – NECESSITY FOR EXPRESS ENACTMENT – where an application for a child protection order was adjourned by a Childrens Court magistrate – where the magistrate made an interim custody order pending the hearing of the application – where the child’s parents appealed to the Childrens Court against that interim custody order – where the Childrens Court allowed a stay of the interim custody order subject to various conditions pending the appeal to the Childrens Court – where the Childrens Court was constituted by a judge of the District Court – where the applicant appealed to the Court of Appeal seeking a stay of the order made by the Childrens Court – whether s117(2) of the Child Protection Act 1999 (Qld) confers a right of appeal to the Court of Appeal from the decision of the Childrens Court PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DEFINITIONS – where s 118(3) of the District Court of Queensland Act 1967 (Qld) permitted appeals from the District Court to the Court of Appeal with leave of the Court of Appeal – where a judge of the District Court sat as a judge of the Childrens Court – whether the Childrens Court of Queensland established by the Childrens Court Act 1992 (Qld) may also be regarded as the District Court for the purposes of the right of appeal conferred by s 118(3) of the District Court of Queensland Act 1967 (Qld) ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant argued for a stay on the basis of a proceeding under the Judicial Review Act 1991 (Qld) – where the applicant contended that the judge who constituted the Childrens Court failed to take into account matters that the legislation required to be taken into account – where the applicant submitted that there were several findings by the Childrens Court judge that amounted to a finding that the application made below had no prospects of success – where the respondents contended that the findings of the Childrens Court Judge did not attract relief under the Judicial Review Act 1991 (Qld) as they did not extend to the judge’s authority to make any order or decision in the circumstances of the case – whether the findings of the Childrens Court Judge amounted to a finding that…