Her v DIS (No.2) - [2025] QMC 7

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

HER v DIS (No.2) [2025] QMC 7

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 for Recusal filed by Respondent on 16 February 2025

ORIGINATING COURT:

Gympie

DELIVERED ON:

19 March 2025

DELIVERED AT:

Gympie

HEARING DATE:

On the papers

MAGISTRATE:

Magistrate Hughes

ORDERS:

THE APPLICATION FOR RECUSAL FILED BY THE RESPONDENT ON 16 FEBRUARY 2025 IS DISMISSED.

CATCHWORDS:

FAMILY LAW – Domestic Violence – where Application for Protection Order – where Application for recusal by Respondent

PROCESS – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – where Application for recusal by Respondent – where Respondent did not comply with Directions for filing of his Application for recusal – where Court’s Directions are to be taken seriously – where extension granted because respondent not legally represented and no prejudice to aggrieved – where actual and apprehended bias alleged – where Respondent made “Kangaroo Court” comment while leaving Court at a previous callover – where Respondent objected to Directions – where Respondent alleged mistakes of law – where Respondent referred to precedents and “natural law” – whether decision-maker brought closed mind to issues to be decided or had prejudged them - whether fair-minded and well-informed lay observer might reasonably apprehend Court might not bring impartial and unprejudiced mind to determination of matter on its merits – where exercise of judicial function includes regulating Court’s own procedure to ensure fairness, prevent abuse of process and enable it to act effectively within its jurisdiction – where this includes managing disruptions in Court – where Directions apply to both parties – where Respondent’s legal representative did not object to Directions - where no subjective attitudes, views or state of mind showing prejudgment of issues to be decided – where disagreement with proper discharge of judicial function not sufficient to meet test for actual or apprehended bias

Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 37, s 144

Domestic and Family Violence Protection Rules 2014 (Qld), r 3, r 5, r 6, r 22, r 23, r 24

Justices Act 1886 (Qld), s 40

Magistrates Court Act 1921 (Qld), s 50

Uniform Civil Procedure Rules, r 922, r 923, r 924, r 925

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

Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Power v Heyward & Ors [2007] QSC 026

R v Stevedoring Industry Board; Ex parte Northern Stevedoring Co Pty Ltd (1953) 88 CLR 100

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

ZTP v BBY [2023] QDC 59

SOLICITORS:

Applicant in person

Respondent in person

What is this Application about?

After…

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 (No.2)

Details

AGLC: Her v DIS (No.2) [2025] QMC 7
Case: [2025] QMC 7
Decision Date: 19 March 2025

CaseChat Overview and Summary

The matter of Her v DIS (No.2) involved the respondent, DIS, seeking to recuse the presiding judge due to alleged bias and procedural errors. The dispute pertained to an application for a protection order in a family law context, where domestic violence was alleged. The court was required to decide on the validity of the recusal application, considering whether the judge displayed actual or apprehended bias and whether there was compliance with procedural directions. Additionally, the court needed to address the respondent's failure to adhere to specific directions regarding the filing of the recusal application.

The court meticulously evaluated the respondent's claims of actual and apprehended bias, particularly noting the respondent's "Kangaroo Court" remark and objections to procedural directions. The respondent argued that the judge had a closed mind and prejudged the issues, citing alleged mistakes of law and references to "natural law." However, the court found that the respondent had not provided sufficient evidence of subjective bias or prejudgment. The court underscored that the exercise of judicial function includes managing disruptions in court and ensuring fairness, which necessitated compliance with procedural directions. Since the respondent did not present any subjective attitudes indicating prejudgment and merely disagreed with the judicial function's discharge, the claims of actual or apprehended bias were not substantiated.

Consequently, the court dismissed the application for recusal filed by the respondent on 16 February 2025. The court maintained that the directions were to be taken seriously and that non-compliance could potentially prejudice the proceedings. Despite the respondent's lack of legal representation, an extension was granted, but this did not alter the necessity for adherence to procedural rules. The court's decision was rooted in the absence of evidence supporting the respondent's allegations of bias and the procedural shortcomings observed in the filing of the recusal application.

No further orders were made regarding the substantive application for a protection order, as the recusal application was the primary focus and was dismissed.

Orders

Orders of the court

THE APPLICATION FOR RECUSAL FILED BY THE RESPONDENT ON 16 FEBRUARY 2025 IS DISMISSED.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	HER v DIS (No.2) [2025] QMC 7
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 for Recusal filed by Respondent on 16 February 2025
ORIGINATING COURT:	Gympie
DELIVERED ON:	19 March 2025
DELIVERED AT:	Gympie
HEARING DATE:	On the papers
MAGISTRATE:	Magistrate Hughes
ORDERS:	THE APPLICATION FOR RECUSAL FILED BY THE RESPONDENT ON 16 FEBRUARY 2025 IS DISMISSED.
CATCHWORDS:	FAMILY LAW – Domestic Violence – where Application for Protection Order – where Application for recusal by Respondent PROCESS – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – where Application for recusal by Respondent – where Respondent did not comply with Directions for filing of his Application for recusal – where Court’s Directions are to be taken seriously – where extension granted because respondent not legally represented and no prejudice to aggrieved – where actual and apprehended bias alleged – where Respondent made “Kangaroo Court” comment while leaving Court at a previous callover – where Respondent objected to Directions – where Respondent alleged mistakes of law – where Respondent referred to precedents and “natural law” – whether decision-maker brought closed mind to issues to be decided or had prejudged them - whether fair-minded and well-informed lay observer might reasonably apprehend Court might not bring impartial and unprejudiced mind to determination of matter on its merits – where exercise of judicial function includes regulating Court’s own procedure to ensure fairness, prevent abuse of process and enable it to act effectively within its jurisdiction – where this includes managing disruptions in Court – where Directions apply to both parties – where Respondent’s legal representative did not object to Directions - where no subjective attitudes, views or state of mind showing prejudgment of issues to be decided – where disagreement with proper discharge of judicial function not sufficient to meet test for actual or apprehended bias
Domestic and Family Violence Protection Act 2012 (Qld), s 3, s 37, s 144 Domestic and Family Violence Protection Rules 2014 (Qld), r 3, r 5, r 6, r 22, r 23, r 24 Justices Act 1886 (Qld), s 40 Magistrates Court Act 1921 (Qld), s 50 Uniform Civil Procedure Rules, r 922, r 923, r 924, r 925 Aon Risk Services Pty Ltd v ANU (2009) 239 CLR 175 Amirbeaggi (Trustee), in the matter Billiau (Bankrupt) v Billiau [2023] FedCFamC2G 949 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Power v Heyward & Ors [2007] QSC 026 R v Stevedoring Industry Board; Ex parte Northern Stevedoring Co Pty Ltd (1953) 88 CLR 100 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 ZTP v BBY [2023] QDC 59
SOLICITORS:	Applicant in person Respondent in person