Her v DIS - [2024] QMC 16

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

HER v DIS [2024] QMC 16

PARTIES:

HER

(Applicant / Aggrieved)

V

DIS

(Respondent)

FILE NO/S:

MAG-00100108/18(6)

DIVISION:

Magistrates Courts

PROCEEDING:

Application for a Protection Order filed by Aggrieved on 24 October 2023

Application to Dismiss filed by Respondent on 11 June 2024

ORIGINATING COURT:

Gympie

DELIVERED ON:

13 August 2024 (Delivered ex tempore)

DELIVERED AT:

Gympie

HEARING DATE:

13 August 2024

MAGISTRATE:

Magistrate Hughes

ORDERS:

1. THE APPLICATION TO DISMISS FILED BY THE RESPONDENT ON 11 JUNE 2024 IS DISMISSED.

2. NO ORDER AS TO COSTS.

CATCHWORDS:

FAMILY LAW – Domestic Violence – where Application for Protection Order – where allegations of strangulation, assault, derogatory and degrading language and demeaning texts - where summary dismissal wholly inconsistent with legislative scheme – where unnecessarily technical approach eschewed in favour of a just and expeditious resolution of the relevant issues with a minimum of expense and delay - where Aggrieved is identified as a vulnerable person and should be given opportunity to present her case at a full hearing

PROCESS – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – where third Application for summary dismissal by Respondent – where alleged evidential inadequacies – where triable issues of fact - where aggrieved evidence assessed in reasonable, realistic and pragmatic way – where Aggrieved evidence capable of supporting relevant elements for Protection Order - where summarily dismissing Aggrieved’s application due to alleged inadequacies in her evidence would impose onerous technical requirement on a vulnerable and unrepresented person

CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – INTERLOCUTORY PROCEEDINGS – PAYABLE FORTHWITH – where Court may award costs – where Court’s resources in high demand - when application dismissed and devoid of merit – where no order as to costs

Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 8, s 9, s 10, s 11, s 37, s 145, s 157

Domestic and Family Violence Protection Rules 2014 (Qld), r 5, r 22, r 52

Agar v Hyde (2000) 201 CLR 552

Aon Risk Services Pty Ltd v ANU (2009) 239 CLR 175

DES v CJR [2022] QDC 154

Dey v Victorian Railways Commissioner (1949) 78 CLR 62

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125

GKE v EUT [2014] QDC 248

MDE v MLG & QPS [2015] QDC 151

OSE v HAN [2020] QDC 309

Spencer v Commonwealth (2010) 241 CLR 118

Talbot v Boyd Legal (A Firm) & Anor [2019] QSC 80

Wylie v AMN [2022] QDC 241

ZTP v BBY [2023] QDC 59

SOLICITORS:

Applicant in person

Respondent in person

What is this Application about?

Since the Aggrieved filed her Application for a Protection Order on 24 October 2023, the Respondent has applied three times for summary dismissal. This is the third. It seeks orders to summarily dismiss the Aggrieved’s application, vacate the Temporary Protection Order and to pay the Respondent’s costs.

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 Her v DIS

Details

AGLC: Her v DIS [2024] QMC 16
Case: [2024] QMC 16
Decision Date: 13 August 2024 (Delivered ex tempore)

CaseChat Overview and Summary

In the case of Her v DIS, the Applicant sought a Protection Order against the Respondent, alleging a series of incidents including strangulation, assault, and derogatory communication. The matter was heard in the Family Court of Australia, where the primary concern was the Respondent's third application for summary dismissal, contending the Applicant's evidence was inadequate. The Applicant, identified as a vulnerable person, aimed to present her case at a full hearing.

The court was tasked with determining whether the Respondent's application for summary dismissal should be granted, given the nature of the allegations and the Applicant's vulnerability. It was crucial to assess whether the evidential inadequacies claimed by the Respondent truly existed and whether these would prevent the case from proceeding to a full hearing. The court had to consider the legislative intent behind the Protection Orders Act and whether a summary dismissal was consistent with achieving a just and expeditious resolution.

The court found that the application for summary dismissal was inconsistent with the legislative scheme and the inherent powers of the court to prevent abuse of process. It was noted that the Applicant's evidence, though perhaps not perfect, was capable of supporting the necessary elements for a Protection Order. Dismissing the application due to technical inadequacies would impose an onerous requirement on a vulnerable and unrepresented person. The court emphasised the importance of a pragmatic approach, avoiding unnecessary technicalities, and providing an opportunity for the Applicant to present her case at a full hearing.

No order as to costs was made due to the dismissal of the Respondent's application, which was devoid of merit, and the high demand on the court’s resources.

Orders

Orders of the court

1. THE APPLICATION TO DISMISS FILED BY THE RESPONDENT ON 11 JUNE 2024 IS DISMISSED.

2. NO ORDER AS TO COSTS.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	HER v DIS [2024] QMC 16
PARTIES:	HER (Applicant / Aggrieved) V DIS (Respondent)
FILE NO/S:	MAG-00100108/18(6)
DIVISION:	Magistrates Courts
PROCEEDING:	Application for a Protection Order filed by Aggrieved on 24 October 2023 Application to Dismiss filed by Respondent on 11 June 2024
ORIGINATING COURT:	Gympie
DELIVERED ON:	13 August 2024 (Delivered ex tempore)
DELIVERED AT:	Gympie
HEARING DATE:	13 August 2024
MAGISTRATE:	Magistrate Hughes
ORDERS:	1. THE APPLICATION TO DISMISS FILED BY THE RESPONDENT ON 11 JUNE 2024 IS DISMISSED. 2. NO ORDER AS TO COSTS.
CATCHWORDS:	FAMILY LAW – Domestic Violence – where Application for Protection Order – where allegations of strangulation, assault, derogatory and degrading language and demeaning texts - where summary dismissal wholly inconsistent with legislative scheme – where unnecessarily technical approach eschewed in favour of a just and expeditious resolution of the relevant issues with a minimum of expense and delay - where Aggrieved is identified as a vulnerable person and should be given opportunity to present her case at a full hearing PROCESS – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – where third Application for summary dismissal by Respondent – where alleged evidential inadequacies – where triable issues of fact - where aggrieved evidence assessed in reasonable, realistic and pragmatic way – where Aggrieved evidence capable of supporting relevant elements for Protection Order - where summarily dismissing Aggrieved’s application due to alleged inadequacies in her evidence would impose onerous technical requirement on a vulnerable and unrepresented person CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – INTERLOCUTORY PROCEEDINGS – PAYABLE FORTHWITH – where Court may award costs – where Court’s resources in high demand - when application dismissed and devoid of merit – where no order as to costs
Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 4, s 8, s 9, s 10, s 11, s 37, s 145, s 157 Domestic and Family Violence Protection Rules 2014 (Qld), r 5, r 22, r 52 Agar v Hyde (2000) 201 CLR 552 Aon Risk Services Pty Ltd v ANU (2009) 239 CLR 175 DES v CJR [2022] QDC 154 Dey v Victorian Railways Commissioner (1949) 78 CLR 62 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 GKE v EUT [2014] QDC 248 MDE v MLG & QPS [2015] QDC 151 OSE v HAN [2020] QDC 309 Spencer v Commonwealth (2010) 241 CLR 118 Talbot v Boyd Legal (A Firm) & Anor [2019] QSC 80 Wylie v AMN [2022] QDC 241 ZTP v BBY [2023] QDC 59
SOLICITORS:	Applicant in person Respondent in person