Du v TG - [2022] QDC 247

DISTRICT COURT OF QUEENSLAND

CITATION:

DU v TG and Another [2022] QDC 247

PARTIES:

DU

(Appellant)

v
TG

(First Respondent)
Queensland Police Service
(Second Respondent)

FILE NO/S:

88/22

DIVISION:

District Court of Queensland

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

16 September 2022

DELIVERED AT:

Southport

HEARING DATE:

16 September 2022

JUDGES:

Jackson KC DCJ

ORDER:

1. The appeal in relation to the final order be dismissed.

2. The appeal in relation to the cross-application be allowed and the matter be remitted to the Magistrates Court at Southport to be heard and determined by a different Magistrate.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN AN APPEAL LIES – ERROR OF LAW – where the learned Magistrate made a Domestic Violence Protection order against the appellant – where the learned Magistrate refused the appellant’s cross-application – where the appellant appeals the decision under section 164 of the Domestic and Family Violence Protection Act 2012 (Qld) – whether the learned Magistrate erred in finding that the protection order against the appellant was necessary or desirable – whether the learned Magistrate erred in finding that the cross application was not necessary or desirable.

COUNSEL:

Self-represented for the appellant

No appearance for the first respondent
I Fraser (Legal Officer) for the second respondent

SOLICITORS:

Self-represented for the appellant

No appearance for the first respondent
Queensland Police Service for the second respondent

Introduction

Orders were made in the Southport Magistrates Court on 2 March 2022 under the Domestic and Family Violence Protection Act 2012 (“the Act”) being a final order on a police protection notice against the appellant and a refusal of the appellant’s private application for a protection order against the first respondent, which I will call the cross-application.
The appellant appeals each decision by a notice of appeal filed 30 March 2022.
The hearing before his Honour commenced on 19 October 2021 but was adjourned to allow the appellant the opportunity to obtain a lawyer in circumstances where the second respondent’s application pursuant to s 151 of the Act was allowed such that the appellant was not permitted to personally cross-examine the first respondent. The matter came back on for hearing on 2 February 2022. However, the appellant had not obtained a lawyer and there was thus no cross-examination of the first respondent on the resumption of the hearing. One of the grounds of appeal concerns his Honour’s decision pursuant to s 151 of the Act, to not allow cross-examination by the applicant.
The matter was adjourned to a date to be fixed and a decision was given on 2 March 2022 in the terms I have already identified.
The first respondent has indicted via an email and I have also been told uncontroversial today, that she did not wish to take part in the appeal or to be contacted again.[1] The second respondent has also indicated that while it is not a party to the appeal in respect of the cross-application, it concedes an error…

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 Du v TG

Details

AGLC: Du v TG [2022] QDC 247
Case: [2022] QDC 247
Decision Date: 16 September 2022

CaseChat Overview and Summary

The appeal in the case of Du v TG concerns a Domestic Violence Protection Order made by a Magistrate under the Domestic and Family Violence Protection Act 2012 (Qld). The appellant, Du, sought to appeal the decision to grant the order against him and to set aside his cross-application, which was refused by the Magistrate. The legal issues before the court were whether the Magistrate erred in finding that the protection order against the appellant was necessary or desirable, and whether the Magistrate erred in finding that the cross-application was not necessary or desirable.

The court examined the evidence presented during the proceedings, including affidavits from the first respondent, the appellant, and other witnesses, as well as cross-examination of these individuals. The court noted that the Magistrate had allowed an application for the first respondent to be treated as a protected witness due to concerns about potential intimidation and emotional harm. The court found that the Magistrate's findings were supported by the evidence and that there was no error in the decision to grant the protection order or to refuse the cross-application. However, the court did find that the cross-application should be remitted to the Magistrates Court to be determined by a different Magistrate, allowing for a fresh consideration of the evidence and any changes in the relationship status between the parties.

The final orders of the court were to dismiss the appeal in relation to the final order and to allow the appeal in relation to the cross-application. The matter was to be remitted to the Magistrates Court at Southport to be heard and determined by a different Magistrate. This decision ensures that the cross-application can be properly considered in light of any new evidence or changes in the circumstances of the parties.

Orders

Orders of the court

1. The appeal in relation to the final order be dismissed.

2. The appeal in relation to the cross-application be allowed and the matter be remitted to the Magistrates Court at Southport to be heard and determined by a different Magistrate.

Background

Background to the litigation

Section 56 provides that a domestic violence order must contain the conditions set out in that section. Section 57 allows the court to impose other conditions. In this matter the appellant told his Honour he did not want the first respondent to be ordered to not have contact with him. His Honour was right, in my view, to question this given the contention that the first respondent had been abusive to the appellant over a long period of time.[5] In my view, this raised a real question as to whether it would have been necessary or desirable to make an order against the first respondent even if his Honour had been satisfied that there had been acts of domestic violence. But it is unnecessary to consider this aspect further because his Honour was not so satisfied.[5]See the transcript of the second day of the hearing at 1-76/3 to 1-77/19.Factual Background The first respondent and the appellant met sometime in 2013 when the first respondent was 14 years of age and the appellant was 22. They dated on and off from 2015 until early 2021 when the events underlying this matter arose. On 27 February 2021 his Honour found that a physical incident took place. A police protection notice was served soon thereafter. On 3 March 2021 a temporary protection order was made including the mandatory terms and other non-contact conditions. On 4 June 2021 the appellant filed an application naming the first respondent as respondent. The evidence comprised an affidavit of Constable Lang Keith, an affidavit of the first respondents’ father, an affidavit of the first respondents’ mother, affidavits of the first respondent and of the appellant. There was also cross-examination of the first respondent’s parents, Constable Lang Keith, and the appellant. There was also cross-examination of the first respondent’s parents, Constable Lankeith and the appellant. As I have already indicated his Honour allowed an application pursuant to s 151(2) of the Act on the basis that the first respondent was a protected witness whom the self-represented appellant wished to cross-examine. His Honour was satisfied that the first respondent was likely to suffer emotional harm or distress or be so intimidated as to be disadvantaged as a witness.The findings below The learned Magistrate further adjourned the matter after the second day of the hearing on 2 February 2022 and delivered his reasons on 2 March 2022. He referred to the evidence in appropriate detail. He referred to the appellant’s cross-examination of the first respondent’s parents and the attack on their credit. He recorded finding that he found the first respondent’s father to be a credible witness who, inferentially, had appropriate reasons for not wanting to have anything further to do with the appellant which reasons were further exposed as the cross-examination continued. His Honour also clearly accepted the first respondent’s mother’s evidence and upon review of her evidence and her cross-examination that is hardly surprising.

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

It may be a matter of speculation but his Honour in querying the appellant as to his position as to whether he was abused might have been based on a proposition that he was finding that difficult to reconcile with a proposition that he did not want to have a contact order and wished to continue a relationship with the first respondent. But it is unnecessary to consider that any further.Consideration It will be clear from what I have said that the appeal in relation to the final order ought in my view be dismissed and the appeal in relation to the cross-application must be allowed. As to that, the cross‑application ought to be remitted to the Magistrates Court, to be determined by a different Magistrate. That is because there the evidence can be properly tested and issues relevant to whether it is necessary or desirable to make an order and if so in what form can be considered. Including by reference to perhaps more recent material as to interactions between the appellant and first respondent. The appellant will of course be able to pursue that application should he wish to. Equally, to the extent there has been some change as to the relationship status between the parties or as to matters relevant to the order currently in place, that should properly be subject to an application to vary in my view rather than seeking to rely on the evidence relevant to such an application to contend that his Honour made some error in respect of the matters the subject of this appeal. In the circumstances, the orders will be that the appeal in relation to the final order be dismissed and the appeal in relation to the cross application be allowed. The matter be remitted to the Magistrates Court at Southport to be determined by another Magistrate.

CITATION:	DU v TG and Another [2022] QDC 247
PARTIES:	DU (Appellant) v TG (First Respondent) Queensland Police Service (Second Respondent)
FILE NO/S:	88/22
DIVISION:	District Court of Queensland
PROCEEDING:	Appeal
ORIGINATING COURT:	Southport Magistrates Court
DELIVERED ON:	16 September 2022
DELIVERED AT:	Southport
HEARING DATE:	16 September 2022
JUDGES:	Jackson KC DCJ
ORDER:	1. The appeal in relation to the final order be dismissed. 2. The appeal in relation to the cross-application be allowed and the matter be remitted to the Magistrates Court at Southport to be heard and determined by a different Magistrate.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN AN APPEAL LIES – ERROR OF LAW – where the learned Magistrate made a Domestic Violence Protection order against the appellant – where the learned Magistrate refused the appellant’s cross-application – where the appellant appeals the decision under section 164 of the Domestic and Family Violence Protection Act 2012 (Qld) – whether the learned Magistrate erred in finding that the protection order against the appellant was necessary or desirable – whether the learned Magistrate erred in finding that the cross application was not necessary or desirable.
COUNSEL:	Self-represented for the appellant No appearance for the first respondent I Fraser (Legal Officer) for the second respondent
SOLICITORS:	Self-represented for the appellant No appearance for the first respondent Queensland Police Service for the second respondent