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 510COUNSEL:
A Hoare for the applicant/appellant
P McCafferty QC for the second respondentThe 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 behalfIntroduction
The second respondent applies to set aside the interlocutory order of his Honour Judge Koppenol…
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- AGLC
- HBY v WBI & Anor [2020] QDC 81
- Case
- [2020] QDC 81
- Decision Date
CaseChat Overview and Summary
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
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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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