Des v CJR

[2022] QDC 154

DISTRICT COURT OF QUEENSLAND

CITATION:

DES v CJR [2022] QDC 154

PARTIES:

DES

(Applicant/appellant)

v

CJR

(Respondent)

FILE NO:

13/21

DIVISION:

Appeal

PROCEEDING:

Appeal pursuant to the Domestic Violence and Family Protection Act 2012

ORIGINATING COURT:

Magistrates Court at Bundaberg

DELIVERED ON:

8 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

19 May 2022

JUDGE:

Rackemann DCJ

ORDER:

1.    The time for filing the notice of appeal be extended to 8 December 2021.

2.    The decision of the Acting Magistrate in so far as it dismissed the applicant/appellant’s application to vary the duration of the protection order and in so far as it ordered her to pay the respondent’s costs be set aside and those matters remitted to the Magistrates Court to be heard and determined according to law by a different Magistrate.

3.    The appeal is otherwise dismissed.

CATCHWORDS:

APPEAL FROM MAGISTRATE – APPLICANT APPEAL AGAINST REFUSAL OF AN APPLICATION TO VARY A PROTECTION ORDER MADE UNDER THE DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 – whether time to appeal ought be extended – whether appeal ought be heard afresh in whole or in part – where application to vary sought relief, including a revocation order, that was not available but, in the alternative, sought to vary the duration of the order – where the application was dismissed at first instance at the conclusion of the applicant’s case in response to a ‘no case’ submission– where consideration not given to whether the respondent ought be put to an election – whether applicant’s evidence was irrelevant to the relief sought – where the application revealed that the respondent’s affidavit material had been read and considered

LEGISLATION:

Domestic and Family Violence Protection Act 1989 ss 35, 36

Domestic and Family Violence Protection Act 2012 ss 37, 39, 86, 91, 92, 93, 97, 165, 167, 169

CASES:

ASIC v Healey [2011] FCA 717, 278 ALR 618 at [535] – [543]

CAO v HAT [2013] QDC 42 at [43]

Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68 at [3] and [14]

OSE v HAN [2020] QDC 309 at [46], [59], [69] and [86]

APPEARANCES:

Each party was self-represented.

1. By this proceeding the applicant/appellant seeks to appeal against the decision of an acting magistrate, made on 27 October 2021, that an application by the applicant/appellant to vary a domestic violence order be dismissed and that she pay the respondent’s costs in the sum of $1,500.00. The proceeding in this Court was commenced by way of a notice of appeal subject to leave because, having been filed on 8 December 2021, it was out of time. By reason of s 165(4) of the Domestic and Family Violence Protection Act 2012 (the Act), a notice of appeal must be filed within 28 days after, relevantly, the day upon which the decision was made. A power to extend time is conferred on the appellate court by s 165(5) of the Act.

2. By reason of s 168 of the Act, an appeal must be decided…