Djs v A Police Officer - [2021] QDC 148

DISTRICT COURT OF QUEENSLAND

CITATION:

DJS v A Police Officer & Anor [2021] QDC 148

PARTIES:

DJS

(Appellant)

V

A POLICE OFFICER

(First Respondent)

And

NKY

(Second Respondent)

FILE NO:

292/2021

DIVISION:

Appeal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Sandgate (Magistrate Cornack)

DELIVERED ON:

18 June 2021 (ex-tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2021

JUDGE:

Reid DCJ

ORDER:

1.   Appeal allowed.

2.   Application for a protection order dismissed.

3.   No order as to costs between the appellant and the second respondent.

4.   First respondent to pay the appellant’s costs of the appeal fixed by agreement in the sum of $18, 000.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where appeal initiated under s 164 of the Domestic and Family Violence Protection Act 2012 – whether appellant denied procedural fairness – whether learned Magistrate at first instance erred in holding that Protection order necessary or desirable to protect second respondent from domestic violence – whether learned Magistrate at first instance erred in imposing ouster condition – whether conduct of the learned Magistrate constituted miscarriage of justice – where issues of credit in respect of both parties – where issues of motive in respect of second respondent – whether Magistrate failed to consider motive – where appeal allowed

LEGISLATION:

Domestic & Family Violence Protection Act 2012 (Qld) s 37, 164

CASES:

BJH v CJH [2016] QDC 27

COUNSEL:
Ms K Hillard with Ms A Cousen for the appellant
Mr J. Paratz (Legal Officer) for the first respondent

Mr G Kalimnious for the second respondent

SOLICITORS:
Aitken Whyte Lawyers for the appellant
QPS Legal Unit for the first respondent
Mr G Kalimnious for the second respondent

Introduction

In this matter the appellant appeals pursuant to the provisions of s 164 of the Domestic & Family Violence Protection Act against the making of a protection order made for a period of eight months pursuant to s 37 of the Act. The application was brought by the first respondent. The decision appealed from was made on 25 January 2021 by Magistrate Cornack in the Sandgate Magistrates Court, naming the second respondent as the aggrieved and her adult daughter and her mother as associates of the aggrieved also protected by the protection order.
The approach to such a matter was set out by Rackermann DCJ in BJH v CJH [2016] QDC 26 as follows:
“This appeal is brought pursuant to s 164 of the Act. Under s 169, in deciding this appeal, the court can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court. The effect of s 168, is that the appeal proceeds by way of rehearing. It is appropriate that this court observe the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. This court should interfere with the order made below only where it is the result of…

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.

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Details

Case: [2021] QDC 148
Decision Date: 18 June 2021

CaseChat Overview and Summary

In the matter of Djs v A Police Officer, the appellant, a police officer, sought to appeal a decision made by a Magistrate under section 164 of the Domestic and Family Violence Protection Act 2012. The appellant contested the imposition of a protection order against them by the second respondent, who was a family member. The primary issues revolved around whether the appellant was denied procedural fairness during the original proceedings, if the Magistrate had erred in deciding that a protection order was necessary or desirable, and whether the Magistrate had made a miscarriage of justice by imposing an ouster condition. Additionally, the appeal considered the credit issues of both parties and the motive of the second respondent.

The court addressed the appellant's contention that they were denied procedural fairness due to the Magistrate's failure to consider the second respondent's motive. The court examined the evidence and found that the Magistrate had indeed overlooked the second respondent's motive, which was a significant factor in the decision-making process. This oversight constituted a failure to consider a relevant aspect of the case and amounted to an error in procedure. Furthermore, the court held that the Magistrate had erred in determining that a protection order was necessary or desirable and in imposing an ouster condition without adequate consideration of the evidence and arguments presented.

The appeal was allowed, and the application for a protection order was dismissed. The court ruled that there would be no order as to costs between the appellant and the second respondent. However, the first respondent was ordered to pay the appellant's costs of the appeal, which were fixed by agreement at $18,000. The detailed reasoning and findings of the court provided clarity on the procedural errors made in the original proceedings and set a precedent for future cases involving similar issues.

Orders

Orders of the court

1. Appeal allowed.

2. Application for a protection order dismissed.

3. No order as to costs between the appellant and the second respondent.

4. First respondent to pay the appellant’s costs of the appeal fixed by agreement in the sum of $18, 000.

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:	DJS v A Police Officer & Anor [2021] QDC 148
PARTIES:	DJS (Appellant) V A POLICE OFFICER (First Respondent) And NKY (Second Respondent)
FILE NO:	292/2021
DIVISION:	Appeal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Sandgate (Magistrate Cornack)
DELIVERED ON:	18 June 2021 (ex-tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	18 June 2021
JUDGE:	Reid DCJ
ORDER:	1. Appeal allowed. 2. Application for a protection order dismissed. 3. No order as to costs between the appellant and the second respondent. 4. First respondent to pay the appellant’s costs of the appeal fixed by agreement in the sum of $18, 000.
CATCHWORDS:	DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where appeal initiated under s 164 of the Domestic and Family Violence Protection Act 2012 – whether appellant denied procedural fairness – whether learned Magistrate at first instance erred in holding that Protection order necessary or desirable to protect second respondent from domestic violence – whether learned Magistrate at first instance erred in imposing ouster condition – whether conduct of the learned Magistrate constituted miscarriage of justice – where issues of credit in respect of both parties – where issues of motive in respect of second respondent – whether Magistrate failed to consider motive – where appeal allowed
LEGISLATION:	Domestic & Family Violence Protection Act 2012 (Qld) s 37, 164
CASES:	BJH v CJH [2016] QDC 27
COUNSEL:	Ms K Hillard with Ms A Cousen for the appellant Mr J. Paratz (Legal Officer) for the first respondent Mr G Kalimnious for the second respondent
SOLICITORS:	Aitken Whyte Lawyers for the appellant QPS Legal Unit for the first respondent Mr G Kalimnious for the second respondent