Harvey v Walker

Case [2016] QDC 180

DISTRICT COURT OF QUEENSLAND

CITATION:

Harvey v Walker [2016] QDC 180

PARTIES:

ROBERT HARVEY

(Appellant)

v

KAY WALKER

(Respondent)

FILE NO/S:

3/16

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Dalby Magistrates Court

DELIVERED ON:

21 July 2016

DELIVERED AT:

Dalby

HEARING DATE:

15 July 2016

JUDGE:

Bowskill QC DCJ

ORDER:

1.   The appeal is allowed.

2.   The order made by the Magistrate on 7 March 2016 is set aside.

3.   The respondent’s complaint is returned to the Magistrates Court at Dalby for rehearing.

CATCHWORDS:

PEACE AND GOOD BEHAVIOUR – appeal against making of a peace and good behaviour order – whether the Magistrate erred by failing to take into account the Briginshaw principle in applying the standard of proof on the balance of probabilities – whether the Magistrate erred by accepting and relying upon unsworn statements by persons not present at the hearing – whether the Magistrate made adequate findings as to the “matters of the complaint”

Peace and Good Behaviour Act 1982, ss 4, 6, 8

Justices Act 1886, ss 222, 223, 225, 226

Abalos v Australian Postal Commission (1990) 171 CLR 167

Briginshaw v Briginshaw (1938) 60 CLR 336

Dufficy v Berry [2007] QDC 227

Fox v Percy (2003) 214 CLR 118

Hughes v Talty & Anor [2015] QDC 145

Laidlaw v Hulett [1998] 2 Qd R 45

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

Wiltshire v Imoda & Anor [2012] QDC 345

COUNSEL:

SOLICITORS:

R Everest (Carvosso & Winship Solicitors) for the Appellant.

The Respondent appeared on her own behalf.

  1. Mrs Walker and Mr Harvey are neighbours in Dalby.   It seems to be an understatement to say that they do not get along, or even enjoy a benign disinterest in one another.  In about November 2015, Mrs Walker brought a complaint against Mr Harvey, seeking an order under the Peace and Good Behaviour Act 1982. As is contemplated by s 4(3) of that Act, the matter was referred to mediation. An agreement was reached at mediation for the construction of a fairly significant fence between Mrs Walker’s and Mr Harvey’s properties, which it was hoped would end the conflict between them. The evidence before the Magistrate revealed that, by the time of the hearing, that fence had not yet been constructed. Consequently, Mrs Walker, in substance, renewed her application for an order (by filing a further complaint, on 25 February 2016). That was heard by the Magistrate at Dalby on 7 March 2016, resulting in the making of an order that the defendant keep the peace and be of good behaviour for a period of 6 months, with additional conditions including that he not threaten to assault or do bodily injury to Mrs Walker, or threaten to damage any of her property.

  2. Mr Harvey appeals to this court, under s 222 Justices Act 1886, from the making of that order.

  3. The appeal is by way of rehearing on the evidence given in the proceeding before the Magistrate.[1]   The…

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AGLC
Harvey v Walker [2016] QDC 180
Case
[2016] QDC 180
Decision Date

CaseChat Overview and Summary

The appellant, Harvey, sought to appeal a peace and good behaviour order made against him by the Magistrate. The respondent, Walker, filed a complaint against the appellant alleging various incidents of harassment and intimidation. The dispute was heard and determined in the Queensland Court of Appeal. The central legal issues revolved around the standard of proof applied by the Magistrate, whether the Magistrate properly considered the Briginshaw principle, and if the Magistrate erred in accepting and relying upon unsworn statements from persons not present at the hearing. Additionally, the court had to assess whether the Magistrate made adequate findings on the "matters of the complaint".

The court found that the Magistrate did not correctly apply the Briginshaw principle, which requires a higher standard of proof in civil cases compared to criminal cases. The Magistrate had applied the lower criminal standard of proof on the balance of probabilities rather than the higher civil standard of proof on the balance of probabilities. This error was significant as it impacted the reliability and weight given to the evidence presented. Furthermore, the court determined that the Magistrate erred in accepting and relying upon unsworn statements from persons not present at the hearing, which compromised the fairness of the proceedings. Finally, the court found that the Magistrate did not make adequate findings on the "matters of the complaint", thus failing to properly address the allegations.

Given these findings, the Court of Appeal allowed the appeal, set aside the order made by the Magistrate, and returned the respondent’s complaint to the Magistrates Court at Dalby for rehearing. This decision underscores the importance of adhering to the appropriate standard of proof and ensuring that all evidence is fairly and lawfully considered in civil peace and good behaviour proceedings.

Orders

Orders of the court

1. The appeal is allowed.

2. The order made by the Magistrate on 7 March 2016 is set aside.

3. The respondent’s complaint is returned to the Magistrates Court at Dalby for rehearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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