DMO v RPD

[2009] QDC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

DMO v RPD  [2009] QDC 92

PARTIES:

DMO

  Appellant

AND

RPD

  Respondent

FILE NO/S:

Appeal 2351/08; MAG 00081378/08(8)

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Wynnum

DELIVERED ON:

17 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2009

JUDGE:

McGill DCJ

ORDER:

Appeal allowed.  The protection order made by the Magistrates Court at Wynnum on 5 August 2008 against the appellant set aside.  In lieu thereof, order that the application for a protection order by the respondent against the appellant be dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – Domestic Violence – errors of law – breach of the principles of procedural fairness – protection order set aside.

INFERIOR COURTS – Magistrates Court – requirements of procedural fairness – failure to conduct proper hearing – order made without proper material – no reasons given – protection order set aside.

Domestic and Family Violence Protection Act 1989 ss 20, 38(2)(a), 48, 66, 84(2).

BB v Liebsanft [2003] QSC 326 – considered.
Drew v Makita (Australia) Pty Ltd [2009] QCA 66 – cited.
Re: His Honour Judge Dodds, ex parte, Smith and Graham [1990] 2 Qd R 80 – cited.
Kioa v West (1985) 159 CLR 550 – cited.
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 – cited.
Minister for Immigration v Bhardwaj (2002) 209 CLR 597 – cited.
Pledge v Roads and Traffic Authority (2004) 78 ALRJ 572 – cited.
R v Hendon Justices, ex parte Gorchein [1973] 1 WLR 1502 – cited.

COUNSEL:

The appellant appeared in person

There was no appearance for the respondent

SOLICITORS:

The appellant was not represented

The respondent was not represented

1. On 5 August 2008 a protection order under the Domestic and Family Violence Protection Act 1989 (“the Act”) was made in the Magistrates Court at Wynnum against the appellant as respondent, in favour of the respondent as aggrieved person. This is an appeal pursuant to Part 5 of the Act against that order. The appeal was on the ground that the appellant was not accorded procedural fairness by the magistrate, which was conceded by the respondent. When the appeal came on for hearing the appellant appeared in person and handed up a letter signed by the respondent and purporting to be witnessed by a solicitor which in substance accepted that the order made should be struck out, that is that the appeal should be allowed. The respondent’s signature corresponded with the signature on his outline of submissions filed 16 January 2009, and the certificate of readiness filed 19 February 2009, and indeed on the application for a protection order filed in the Magistrates Court. Having read the outlines and having looked at the transcript of the hearing, it was clear that the ground of appeal had been made out, and in the circumstances I allowed the appeal, set aside the protection order which had been made, and ordered that the respondent’s application be dismissed. I said at the time that I would give written…