Grace v Peter - [2024] QSC 69

SUPREME COURT OF QUEENSLAND

CITATION:

Grace v Peter [2024] QSC 69

PARTIES:

GRACE (a pseudonym)

(Applicant)

v

MAGISTRATE SCOINES

(First Respondent)

and
PETER (a pseudonym)

(Second Respondent)

FILE NO/S:

703 of 2023

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court of Queensland at Cairns

DELIVERED ON:

30 April 2024

DELIVERED AT:

Cairns

HEARING DATE:

16 February 2024

JUDGE:

Henry J

ORDERS:

1.   It is declared the application for a domestic violence protection order was withdrawn on 1 November 2023.

2.   All orders of the Magistrates Court made in respect of the application on or subsequent to 1 November 2023 are set aside.

3.   I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am 22 May 2024 (out of town parties having leave to appear by videolink).

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – ORDERS TO REVIEW – THE ORDER TO REVIEW – APPLICATION – where the applicant seeks a judicial review of a decision to prevent the withdrawal of her application for a protection order – where the reviewable matter was the decision of the Magistrate to not allow the withdrawal of the Applicant’s DVO application and to dismiss it.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DISCONTINUANCE AND WITHDRAWAL – where the applicant sought to orally withdraw her application for a protection order at the beginning of the hearing – whether a domestic violence protection application must be decided before it can be dismissed – whether the applicant had the right to withdraw the application orally at the beginning of the hearing – whether the Magistrate had the jurisdiction to, or exercised power improperly, by refusing to allow the withdrawal of the DVO application and purportedly hearing and dismissing the DVO application

Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 38, 98, 136, 142, 145, 148, 151, 157

Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld) s 49

Domestic and Family Violence Protection Rules (Qld) rr 6, 22, 23, 26, 50

Frigger v Holbrook [2015] WASC 469, discussed
KAV v Magistrate Bentley & Anor [2016] QSC 46, discussed
OSE v Han [2020] QDC 309, cited
R v Jell, ex parte Attorney-General [1991] 1 Qd R 48, discussed
Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412, discussed

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR, 247, cited

COUNSEL:
A Lawrence for applicant

P McCafferty KC, with him M Rawlings for respondents

SOLICITORS:
North Queensland Women’s Legal Service for applicant

Fisher Dore for respondents

Grace filed an application for a domestic violence protection order - a DVO - against her former de facto husband Peter.[1] A summary hearing of the foreshadowed application for summary dismissal was listed to occur.
[1]These names are pseudonyms because of the Domestic and Family Violence Protection Act 2012 (Qld) s 159 “Prohibition on publication of certain information for proceedings”.
At the outset of the…

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 Grace v Peter

Details

AGLC: Grace v Peter [2024] QSC 69
Case: [2024] QSC 69
Decision Date: 30 April 2024

CaseChat Overview and Summary

The matter of Grace v Peter came before the Queensland Court of Appeal. The applicant, Grace, sought a judicial review of a decision made by the Magistrates Court to prevent her from withdrawing her application for a domestic violence order (DVO). The primary issue before the court was whether the Magistrate had the jurisdiction to refuse the applicant's request to withdraw her DVO application and whether this refusal constituted an exercise of improper power. The applicant argued that she had the right to withdraw her application orally at the beginning of the hearing, and that the Magistrate did not have the authority to dismiss the application without first deciding whether the application should proceed.

The court considered the statutory framework governing domestic violence protection orders and the procedural rules applicable to the withdrawal of such applications. It examined whether the Magistrate had the jurisdiction to refuse the withdrawal and whether such a refusal was an exercise of improper power. The court held that the applicant did have the right to withdraw her application orally at the beginning of the hearing, and that the Magistrate did not have the jurisdiction to refuse this request and subsequently hear and dismiss the application. The court found that the Magistrate had exercised power improperly by not allowing the withdrawal of the DVO application.

As a result, the court declared that the application for a domestic violence protection order was withdrawn on 1 November 2023. All orders of the Magistrates Court made in respect of the application on or subsequent to 1 November 2023 were set aside. The court scheduled a hearing for the parties to discuss costs, if not agreed upon beforehand, on 22 May 2024, with the option for out-of-town parties to appear via video link.

Orders

Orders of the court

1. It is declared the application for a domestic violence protection order was withdrawn on 1 November 2023.

2. All orders of the Magistrates Court made in respect of the application on or subsequent to 1 November 2023 are set aside.

3. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am 22 May 2024 (out of town parties having leave to appear by videolink).

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:	Grace v Peter [2024] QSC 69
PARTIES:	GRACE (a pseudonym) (Applicant) v MAGISTRATE SCOINES (First Respondent) and PETER (a pseudonym) (Second Respondent)
FILE NO/S:	703 of 2023
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Cairns
DELIVERED ON:	30 April 2024
DELIVERED AT:	Cairns
HEARING DATE:	16 February 2024
JUDGE:	Henry J
ORDERS:	1. It is declared the application for a domestic violence protection order was withdrawn on 1 November 2023. 2. All orders of the Magistrates Court made in respect of the application on or subsequent to 1 November 2023 are set aside. 3. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am 22 May 2024 (out of town parties having leave to appear by videolink).
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – ORDERS TO REVIEW – THE ORDER TO REVIEW – APPLICATION – where the applicant seeks a judicial review of a decision to prevent the withdrawal of her application for a protection order – where the reviewable matter was the decision of the Magistrate to not allow the withdrawal of the Applicant’s DVO application and to dismiss it. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DISCONTINUANCE AND WITHDRAWAL – where the applicant sought to orally withdraw her application for a protection order at the beginning of the hearing – whether a domestic violence protection application must be decided before it can be dismissed – whether the applicant had the right to withdraw the application orally at the beginning of the hearing – whether the Magistrate had the jurisdiction to, or exercised power improperly, by refusing to allow the withdrawal of the DVO application and purportedly hearing and dismissing the DVO application Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 38, 98, 136, 142, 145, 148, 151, 157 Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld) s 49 Domestic and Family Violence Protection Rules (Qld) rr 6, 22, 23, 26, 50 Frigger v Holbrook [2015] WASC 469, discussed KAV v Magistrate Bentley & Anor [2016] QSC 46, discussed OSE v Han [2020] QDC 309, cited R v Jell, ex parte Attorney-General [1991] 1 Qd R 48, discussed Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412, discussed Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR, 247, cited
COUNSEL:	A Lawrence for applicant P McCafferty KC, with him M Rawlings for respondents
SOLICITORS:	North Queensland Women’s Legal Service for applicant Fisher Dore for respondents