Garcia v Brigitte - [2023] QDC 210

DISTRICT COURT OF QUEENSLAND

CITATION:

Garcia v Brigitte [2023] QDC 210

PARTIES:

JUANITA GARCIA

(appellant)

v
EVA BRIGITTE

(respondent)

FILE NO/S:

DC 19 of 2023

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

29 August 2023 (delivered ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

15 June 2023; 11 July 2023; 29 August 2023.

JUDGES:

Wooldridge KC DCJ

ORDER:

1.   The date for filing of the notice of appeal is extended to 3 February 2023.

2.   The appeal is allowed.

3.   The order made in the Magistrates Court at Southport on 17 October 2022, as relates to the complaint against Ms Garcia and the making of a peace and good behaviour order against Ms Garcia, is set aside.

4.   The complaint of Ms Brigitte as against Ms Garcia is remitted to the Magistrate Court at Southport for re-hearing.

5.   The parties to be heard on the issue of costs.

CATCHWORDS:

APPEAL – MAGISTRATES – PEACE AND GOOD BEHAVIOUR – appeal pursuant to section 222 of the Justices Act 1886 (Qld) – application for extension of time in which to appeal pursuant to section 222 of the Justices Act 1886 (Qld) – where a Peace and Good Behaviour Order was made pursuant to the provisions of the Peace and Good Behaviour Act1982 (Qld) against the appellant in favour of the respondent – where the orders were made in the absence of the appellant when the matter was listed for a hearing review – where the appellant was self-represented – where the appellant contends they were given leave to appear by telephone at the hearing review and were not contacted by the Court – whether the application for extension of time in which to appeal should be allowed – whether the appellant was denied natural justice – whether the learned Magistrate gave sufficient reasons.

Justices Act 1886 (Qld) s 142, s 222, s 223, s 224, s 225
Peace and Good Behaviour Act1982 (Qld) s 5, s 7, s 8, s 9

ABF v DZT [2020] QDC 136
Drew v Makita (Australia) Proprietary Limited [2009] 2 Qd R 29
Holden v Queensland Police Service [2018] QDC 217
R v Tait [1999] 2 Qd R 667
Sinclair v Lynch [2021] QDC 190

COUNSEL:

The appellant appeared on her own behalf

The respondent appeared on her own behalf

SOLICITORS:

The appellant appeared on her own behalf
The respondent appeared on her own behalf

Background

Ms Brigitte sought to commence proceedings against Ms Garcia pursuant to the provisions of the Peace and Good Behaviour Act1982 (Qld). The initial appearance date, further to the resulting complaint and summons, was 11 May 2022. Ms Garcia had also brought an application with reference to the provisions of the Peace and Good Behaviour Act1982 (Qld) against Ms Brigitte. The initial appearance date for that cross-application was 3 August 2022.
On 17 October 2022, Ms Garcia’s complaint as concerns Ms Brigitte was dismissed. Ms Brigitte’s application was allowed, and an order was…

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 Garcia v Brigitte

Details

AGLC: Garcia v Brigitte [2023] QDC 210
Case: [2023] QDC 210
Decision Date: 29 August 2023 (delivered ex tempore)

CaseChat Overview and Summary

In the matter of Garcia v Brigitte, the appellant, Ms Garcia, sought an extension of time to appeal a Peace and Good Behaviour Order made against her in the Magistrates Court at Southport. The respondent, Ms Brigitte, was the beneficiary of the order. The appellant contended that she had been given leave to appear by telephone at the hearing review of 22 September 2022, and had not been contacted by the Court when the matter was adjourned to 17 October 2022, leading to her absence from the hearing. She argued that this resulted in a denial of natural justice and that the learned Magistrate did not give sufficient reasons for proceeding in her absence.

The legal issues before the Court were whether the appellant's application for an extension of time in which to appeal should be allowed and whether the appellant was denied natural justice and whether the learned Magistrate gave sufficient reasons. The Court considered the material filed by the parties, including the transcripts of the proceedings and submissions made by both parties. The Court found that the appellant was given leave to appear by telephone at the hearing review of 22 September 2022, and that the listing of 17 October 2022 was a hearing review date adjourned administratively from 22 September 2022. The Court accepted that the appellant's expectation would have been that the matter would proceed to a substantive hearing on a date thereafter, subject to the attendance of the parties at that time.

The Court held that the application for an extension of time for filing of the notice of appeal ought to be granted. The Court found that the appellant was not denied natural justice, as the adjournment notice specified that the parties' personal attendance was required, but did not necessarily mean that any attendance must be in person. The Court also found that the learned Magistrate gave sufficient reasons for proceeding in the appellant's absence at the time. The Court set aside the order made in the Magistrates Court at Southport on 17 October 2022 and remitted the complaint of Ms Brigitte against Ms Garcia to the Magistrates Court at Southport for re-hearing. The parties were to be heard on the issue of costs.

Orders

Orders of the court

1. The date for filing of the notice of appeal is extended to 3 February 2023.

2. The appeal is allowed.

3. The order made in the Magistrates Court at Southport on 17 October 2022, as relates to the complaint against Ms Garcia and the making of a peace and good behaviour order against Ms Garcia, is set aside.

4. The complaint of Ms Brigitte as against Ms Garcia is remitted to the Magistrate Court at Southport for re-hearing.

5. The parties to be heard on the issue of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

I am satisfied, in the circumstances, that the application for an extension of time for filing of the notice of appeal ought to be granted.Application for Leave to Adduce Evidence Pursuant to section 223(2) of the Justices Act 1886 (Qld), the District Court may give leave to adduce fresh, additional or new evidence if the Court is satisfied there are special grounds for so giving leave.[15] To the extent that each of the parties within the material filed on the application have made reference to conduct of the other since the orders the subject of this appeal made in October of last year, such matters are not of relevance to the issues on this appeal, and leave is not given to adduce evidence of those matters.[15]See Holden v Queensland Police Service [2018] QDC 217 at [24] and [27]. Leave is given to adduce the further evidence contained within the material filed only to the extent that the evidence or material pertains to the reasons why this appeal was brought outside of the one-month prescribed appeal period and as relate to Ms Garcia’s submissions that she did not fail to appear on 17 October 2022, and why she did not attend in person on that date. I note that Ms Brigitte did not oppose the granting of leave to Ms Garcia to adduce the material in support of these aspects of her appeal and submissions.Discussion Ms Garcia’s submissions to this Court as to why she did not attend in person at Court on 17 October 2022 include the following: · On 3 August 2022 she was given leave to appear by telephone at the hearing review of 22 September 2022. · She had understood that the administrative orders made moving the matter from 22 September 2022 to 17 October 2022 resulted in the matter being listed for hearing review only on that later date rather than hearing. · She had understood that the means by which she was required to appear at the hearing review of 17 October 2022 would not have changed from what had been indicated in Court on 3 August 2022 may be the case when the hearing review was to have proceeded on 22 September 2022, without her being informed of that. I accept the material before the Court establishes that on 3 August 2022, Ms Garcia was given leave to appear by telephone at the hearing review of 22 September 2022. I also accept that the listing of 17 October 2022 was a hearing review date adjourned administratively from 22 September 2022; the listing is referred to a number of times as a hearing review in the transcripts of the proceedings of 17 October 2022. I accept that the expectation would have been that the matter would be listed for and proceed to substantive hearing on a date thereafter, subject, of course, to the attendance of the parties at that time. While the adjournment notice specified, as Ms Brigitte highlights, that the parties’ personal attendance was required, I am of the view that this did not necessarily mean that any attendance must be in person, irrespective of any other order. Ms Brigitte, fairly and reasonably, upon having recourse to the transcripts and other material referred to in the course of submissions, did not submit that the Court should proceed contrary to the submissions of Ms Garcia as to how it was that she came to not appear in person on 17 October 2022, and that she had been at home expecting to be contacted by telephone. Ms Brigitte submitted that it was, however, a matter for the learned Magistrate to have decided whether it was appropriate to proceed in Ms Garcia’s absence at the time.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Garcia v Brigitte [2023] QDC 210
PARTIES:	JUANITA GARCIA (appellant) v EVA BRIGITTE (respondent)
FILE NO/S:	DC 19 of 2023
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	29 August 2023 (delivered ex tempore)
DELIVERED AT:	Southport
HEARING DATE:	15 June 2023; 11 July 2023; 29 August 2023.
JUDGES:	Wooldridge KC DCJ
ORDER:	1. The date for filing of the notice of appeal is extended to 3 February 2023. 2. The appeal is allowed. 3. The order made in the Magistrates Court at Southport on 17 October 2022, as relates to the complaint against Ms Garcia and the making of a peace and good behaviour order against Ms Garcia, is set aside. 4. The complaint of Ms Brigitte as against Ms Garcia is remitted to the Magistrate Court at Southport for re-hearing. 5. The parties to be heard on the issue of costs.
CATCHWORDS:	APPEAL – MAGISTRATES – PEACE AND GOOD BEHAVIOUR – appeal pursuant to section 222 of the Justices Act 1886 (Qld) – application for extension of time in which to appeal pursuant to section 222 of the Justices Act 1886 (Qld) – where a Peace and Good Behaviour Order was made pursuant to the provisions of the Peace and Good Behaviour Act1982 (Qld) against the appellant in favour of the respondent – where the orders were made in the absence of the appellant when the matter was listed for a hearing review – where the appellant was self-represented – where the appellant contends they were given leave to appear by telephone at the hearing review and were not contacted by the Court – whether the application for extension of time in which to appeal should be allowed – whether the appellant was denied natural justice – whether the learned Magistrate gave sufficient reasons. Justices Act 1886 (Qld) s 142, s 222, s 223, s 224, s 225 Peace and Good Behaviour Act1982 (Qld) s 5, s 7, s 8, s 9 ABF v DZT [2020] QDC 136 Drew v Makita (Australia) Proprietary Limited [2009] 2 Qd R 29 Holden v Queensland Police Service [2018] QDC 217 R v Tait [1999] 2 Qd R 667 Sinclair v Lynch [2021] QDC 190
COUNSEL:	The appellant appeared on her own behalf The respondent appeared on her own behalf
SOLICITORS:	The appellant appeared on her own behalf The respondent appeared on her own behalf