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HBY v WBI & Anor

HBY v WBI & Anor

Case [2020] QDC 81 14 May 2020

Appeal

Interlocutory Orders

Domestic and Family Violence Protection Act 2012 (Qld)

Costs

Civil Litigation & Procedure

Family Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

HBY v WBI & Anor [2020] QDC 81

PARTIES:

HBY

(Applicant/Appellant)

v

LAP

(First respondent)

and

CONSTABLE WBI

(Second respondent)

FILE NO/S:

DC No 4040 of 2018

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane – Unreported, 31 May 2019

DELIVERED ON:

14 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2020

JUDGE:

Moynihan QC DCJ

ORDER:

In relation to the second respondent’s application filed 14 April 2020:

The application is allowed. 1.

The orders of Judge Koppenol of 31 May 2019 are set aside. 2.

The appellant pay the second respondent’s costs on the standard basis.3.

In relation to the appellant’s application made on 6 May 2020:

The application for the appeal to be heard afresh to permit cross-examination on documents 1, 2, 3, 4, 5, 6, 16, 17, 18, 19 and 20 is dismissed. 1.

The application for the appeal to be heard afresh to permit cross-examination on documents 7 and 13(a) is reserved to the Judge hearing the appeal. 2.

The costs of the application are to be determined by the Judge hearing the appeal.3.

CATCHWORDS:

APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – INTERLOCUTORY ORDERS SET ASIDE OR VARIED – where a domestic violence order was made against the appellant in 2018 – where a judge of the District Court heard an interlocutory application and ordered that the appeal in the District Court was to be heard afresh in whole in accordance with s 168(2) of the Domestic and Family Violence Protection Act 2012 (Qld) – where the second respondent applies that the order be discharged – whether the discretion has miscarried?

APPEAL AND REHEARING – NATURE OF THE APPEAL – DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 – whether the appeal ought to be heard afresh in part?

District Court of Queensland Act 1967 (Qld) s 118
Domestic and Family Violence Protection Act 2012 (Qld) s 3, s 4(1), s 105, s 164, s 165, s 166, s 168, s 169(2)
Uniform Civil Procedure Rules 1999 (Qld) r 667(2)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170
Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 081
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Fox v Percy (2003) 214 CLR 118
FY v Department of Child Safety [2009] QCA 67
GKE v EUT [2014] QDC 248
Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16
Ratten v The Queen (1974) 131 CLR 510

WBI v HBY & Anor [2020] QCA 24

COUNSEL:

A Hoare for the applicant/appellant
P McCafferty QC for the second respondent

The first respondent appeared on her own behalf

SOLICITORS:

PHV Law Solicitors and Consultants for the applicant
Queensland Police Service Legal Unit for the second respondent
The first respondent appeared on her own behalf

Introduction

The second respondent applies to set aside the interlocutory order of his Honour Judge Koppenol…

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 HBY v WBI & Anor

Details

AGLC: HBY v WBI & Anor [2020] QDC 81
Case: [2020] QDC 81
Decision Date: 14 May 2020

CaseChat Overview and Summary

The appellant, HBY, appealed against a domestic violence order made against them in 2018, which was upheld by the District Court. The second respondent, WBI, applied for the domestic violence order to be discharged. The matter came before the Supreme Court of Queensland where the second respondent sought to discharge the domestic violence order, and the appellant sought to have the appeal heard afresh to permit cross-examination on certain documents. The court had to decide whether the discretion exercised by the District Court judge had miscarried and whether the appeal should be heard afresh in part.

The court considered the provisions of the Domestic and Family Violence Protection Act 2012 (Qld) and the discretion given to the District Court judge under s 168(2) of the Act. The court noted that the judge exercised their discretion in ordering that the appeal be heard afresh in whole, and the court was required to consider whether the discretion had miscarried. The court also considered the second respondent’s application to discharge the domestic violence order. The court held that the discretion had not miscarried and the orders of the District Court judge were set aside. The court further held that the appellant’s application to have the appeal heard afresh to permit cross-examination on certain documents was dismissed, except for documents 7 and 13(a), which were reserved to the Judge hearing the appeal.

The court allowed the second respondent’s application to discharge the domestic violence order and set aside the orders of the District Court judge. The court also dismissed the appellant’s application for the appeal to be heard afresh in part and ordered that the appellant pay the second respondent’s costs on the standard basis. The costs of the application were to be determined by the Judge hearing the appeal. The application for the appeal to be heard afresh to permit cross-examination on documents 7 and 13(a) was reserved to the Judge hearing the appeal.

Orders

Orders of the court

In relation to the second respondent’s application filed 14 April 2020:

The application is allowed. 1.

The orders of Judge Koppenol of 31 May 2019 are set aside. 2.

The appellant pay the second respondent’s costs on the standard basis.3.

In relation to the appellant’s application made on 6 May 2020:

The application for the appeal to be heard afresh to permit cross-examination on documents 1, 2, 3, 4, 5, 6, 16, 17, 18, 19 and 20 is dismissed. 1.

The application for the appeal to be heard afresh to permit cross-examination on documents 7 and 13(a) is reserved to the Judge hearing the appeal. 2.

The costs of the application are to be determined by the Judge hearing the appeal.3.

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.

Citations

AGLC Citation

HBY v WBI & Anor [2020] QDC 81

Most Recent Citation

Waj v CRA [2021] QDC 85

Cases citing this decision · 23 of 23 shown

RJL v MCP
[2025] QDC 117 Para 8

…[1] – [3], His Honour Judge Horneman-Wren QC in ACP v McAuliffe [2017] QDC 294 at [5] – [12] and His Honour Judge Moynihan KC in HBY v WBI & Anor [2020] QDC 81 at [16] – [18].…
HIK v HCA
[2024] QDC 155 Para 33

…[1] – [3], His Honour Judge Horneman-Wren QC in ACP v McAuliffe [2017] QDC 294 at [5] – [12] and His Honour Judge Moynihan KC in HBY v WBI & Anor [2020] QDC 81 at [16] – [18].…
SGB v STG; WTS v STG
[2024] QDC 128 Para 1

…Whilst recognising that it has been said that the legislation is far from clear,[1] I agree with the analysis of Moynihan KC DCJ in HBY v WBI & Anor [2020] QDC 81 at [16]-[18] which I set out below: [1] DU v Jackson (DCJ) [2024] QCA 122 per Dalton JA at [74].…
GJC v Commissioner of Police
[2024] QDC 120 Para 1

…n examining the reasons of the learned Magistrate, that that was a significant advantage in the circumstances of this case. [6] HBY v WBI and another [2020] QDC 81 at [18]; MDE v MLG and Queensland Police Service [2015] QDC 151 at [16]. [7] GKE v EUT [2014] QDC 248 at [61]; Warren v Coombes (1979) 142 CLR 531 at…
CEE v CNH
[2024] QDC 76 Para 15

…hat I proceed solely on the basis of the material below as good reason has not been shown for the admission of the further evidence.[4] [4] HBY v WBI [2020] QDC 81, [18].…
NNRM v The Commissioner of Police
[2024] QDC 64 Para 1

…The nature of an appeal such as the present was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below:…
BN v LMN
[2024] QDC 31 Para 8

…In HBY v WBI & Anor [2020] QDC 81 at [16]-[18], I set out the nature of an appeal against the making of a protection order under the Act as follows: “ [16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal and the start of an appeal does not…
ACJ v Ad (No. 2)
[2023] QDC 238

…CASES: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, [175] HBY v WBI & Anor [2020] QDC 81, [16]-[18] Mechanical and General Inventions Co Ltd v Austin [1935] AC 346, 349 APPEARANCES: B Taylor instructed by Karsas Lawyers for the appellant B McKenzie instructed by KLM Solicitors…
Des v CJR (No 2)
[2023] QDC 209

…: Domestic and Family Violence Protection Act 2012 ss 86, 91, 92(2)(3), 168, 169 CASES: Fox v Percy (2003) 214 CLR 188 HBY v WBI & Anor [2020] QDC 81 Robinson Helicopter v McDermott (2016) 90 ALJR 679 S v R [2022] QDC 154 COUNSEL / SOLICITORS: The appellant appeared self-represented The respondent appeared self-…
DBZ v CBZ
[2023] QDC 201 Para 1

…I agree with the analysis of Moynihan KC DCJ in HBY v WBI & Anor [2020] QDC 81 at [16]-[18] which I set out below:…
ACJ v AD
[2023] QDC 176 Para 5

…It is convenient to begin with the nature of the appeal. Such was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below. [16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing…
Commissioner of Police v Hurling
[2023] QDC 157 Para 1

…[2020] QDC 81, [18].…
KNK v Max
[2023] QDC 123 Para 4

…[2020] QDC 81, [18].…
CCE v Cje
[2023] QDC 125 Para 3

…the appeal “to be heard afresh, in whole or part”. In the current circumstances, it is unnecessary to dwell upon such a prospect. [1][2020] QDC 81 at [18]. [2]See generally: Fox v Percy (2003) 214 CLR 118 at [27] and Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43].…
JSA v MPR
[2022] QDC 111 Para 5

…It is convenient to begin with a consideration of the nature of the appeal. Such was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below. [16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal is…
Pad v GA
[2022] QDC 125 Para 2

…essary to say something of the nature of the appeal to this Court pursuant to section 164. Such was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below. [16] The power to appeal a relevant decision is found in s 164 of the Act…
DLM v Wer & the Commissioner of Police
[2022] QDC 79 Para 4

…The nature of an appeal such as the present was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below. [16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal…
Director of Child Protection Litigation v KL and LS
[2022] QDC 50 Para 21

…In HBY v WBI & Anor [2020] QDC 81, Moynihan QC DCJ stated at [18], in relation to analogous legislation, that “good reason” must be shown for there to be an exception to the rule that the appeal must be decided on the evidence in proceedings before the Court below. Further, he stated at [18] that the determinati…
PR v KJ
[2022] QDC 29 Para 12

…The nature of an appeal against the making of a domestic violence protection order was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below. [16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal…
Bui v SNL
[2021] QDC 285 Para 7

…ls, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen .[6] [4]Section 168 of the DFVP Act. [5][2020] QDC 81, [18]. [6](1974) 131 CLR 510, 519.…
TG v CK
[2021] QDC 258 Para 1

…, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[2] [1] Section 168(1) [2] HBY v WBI & Anor [2020] QDC 81 per Moynihan QC DCJ at [18].…
RIS v DOL & Anor
[2021] QDC 154 Para 1

…Moynihan QC DCJ outlined the approach to DFVPA s.168(1) & (2) in HBY v WBI & Anor [2020] QDC 81, as follows:…
Waj v CRA
[2021] QDC 85 Para 26

…The nature of an appeal against the making of a domestic violence protection order was recently considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below. [16] The power to appeal a relevant decision is found in s 164 of the Act. Th…

View all 23 citing cases →

Cases cited in this decision · 11 of 11 shown

Wbi v HBY
[2020] QCA 24 Para 1

…On 21 February 2020, the Court of Appeal struck out the application for want of jurisdiction: see WBI v HBY & Anor [2020] QCA 24. Justice Lyons, with whom Morrison and Mullins JJA agreed, held that s 169(2) of the Act, which provides that the decision of the appellate court upon an appeal shall be final and conc…
R v A2; R v Magennis; R v Vaziri
[2019] HCATrans 122 Para 1

…hen good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, th…
Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors
[2016] QChC 16 Para 1

…by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before t…
GKE v EUT
[2014] QDC 248 Para 1

…An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, havi…
FY v Department of Child Safety
[2009] QCA 67 Para 1

…ercise of the discretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, i…
Fox v Percy
[2003] HCA 22 Para 1

…the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for fur…
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc
[1981] HCA 39 Para 1

…Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [23]-[24]; Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170 at 177; and Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 081. Further, the exercise of the Judge’s discretion miscarried because he took into a…
Ratten v The Queen
[1974] HCA 35 Para 1

…ples that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or expe…
Australia Meat Holdings Pty Ltd v Higgs
[2006] QDC 081 Para 1

…]-[24]; Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170 at 177; and Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 081. Further, the exercise of the Judge’s discretion miscarried because he took into account facts which were in part erroneous. The Judge was mistaken a…
[2006] WASCA 185
[2006] WASCA 185 Para 1

…ere there is a mistake or irregularity and it would be unjust not to set it aside: see WBI at [40]; Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [23]-[24]; Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170 at 177; and Australia Meat Holdings Pty Ltd v Hi…
Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated
40 ER 246 Para 1

…regularity and it would be unjust not to set it aside: see WBI at [40]; Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [23]-[24]; Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170 at 177; and Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 081. Further, the exercise of the Judge’s discretion miscarried because he…

Legislation cited in this decision · 6

Domestic and Family Violence Protection Act 2012 (Qld)
3 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
667(2) 2 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
1 mention (from Para 1)
District Court Act 1967 (Qld)
1 mention (from Para 1)
District Court of Queensland Act 1967 (Qld)
118 1 mention
Victims of Crime Assistance Act 2009 (Qld)
1 mention

CITATION:	HBY v WBI & Anor [2020] QDC 81
PARTIES:	HBY (Applicant/Appellant) v LAP (First respondent) and CONSTABLE WBI (Second respondent)
FILE NO/S:	DC No 4040 of 2018
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court at Brisbane – Unreported, 31 May 2019
DELIVERED ON:	14 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2020
JUDGE:	Moynihan QC DCJ
ORDER:	In relation to the second respondent’s application filed 14 April 2020: The application is allowed. 1. The orders of Judge Koppenol of 31 May 2019 are set aside. 2. The appellant pay the second respondent’s costs on the standard basis.3. In relation to the appellant’s application made on 6 May 2020: The application for the appeal to be heard afresh to permit cross-examination on documents 1, 2, 3, 4, 5, 6, 16, 17, 18, 19 and 20 is dismissed. 1. The application for the appeal to be heard afresh to permit cross-examination on documents 7 and 13(a) is reserved to the Judge hearing the appeal. 2. The costs of the application are to be determined by the Judge hearing the appeal.3.
CATCHWORDS:	APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – INTERLOCUTORY ORDERS SET ASIDE OR VARIED – where a domestic violence order was made against the appellant in 2018 – where a judge of the District Court heard an interlocutory application and ordered that the appeal in the District Court was to be heard afresh in whole in accordance with s 168(2) of the Domestic and Family Violence Protection Act 2012 (Qld) – where the second respondent applies that the order be discharged – whether the discretion has miscarried? APPEAL AND REHEARING – NATURE OF THE APPEAL – DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 – whether the appeal ought to be heard afresh in part? District Court of Queensland Act 1967 (Qld) s 118 Domestic and Family Violence Protection Act 2012 (Qld) s 3, s 4(1), s 105, s 164, s 165, s 166, s 168, s 169(2) Uniform Civil Procedure Rules 1999 (Qld) r 667(2) Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170 Australia Meat Holdings Pty Ltd v Higgs [2006] QDC 081 Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 Fox v Percy (2003) 214 CLR 118 FY v Department of Child Safety [2009] QCA 67 GKE v EUT [2014] QDC 248 Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 Ratten v The Queen (1974) 131 CLR 510 WBI v HBY & Anor [2020] QCA 24
COUNSEL:	A Hoare for the applicant/appellant P McCafferty QC for the second respondent The first respondent appeared on her own behalf
SOLICITORS:	PHV Law Solicitors and Consultants for the applicant Queensland Police Service Legal Unit for the second respondent The first respondent appeared on her own behalf