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HMG v BRC

HMG v BRC

Case [2010] QDC 485 14 December 2010

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DISTRICT COURT OF QUEENSLAND

CITATION:

HMG v BRC [2010] QDC 485

PARTIES:

HMG
(Appellant)

V

BRC
(Respondent)

FILE NO/S:

871 of 2010

DIVISION:

Appellate Jurisdiction

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Sandgate

DELIVERED ON:

14 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 December 2010

JUDGE:

Dorney QC, DCJ

ORDER:

It is ordered:

that the appeal be allowed;1.

that the protection order made by the Magistrates Court at Sandgate on 19 February 2010 be discharged and, in lieu thereof, the application for such be dismissed;2.

that all other orders made by the Magistrates Court at Sandgate in the proceeding, including orders as to costs, be discharged; and3.

that there be no orders as to costs of the appeal.4.

CATCHWORDS:

APPEAL – whether a “domestic relationship”, established by way of a “family relationship”, exists where a de facto partner of a deceased parent of the respondent to the application seeks an order – effect of exclusion of potentially admissible evidence (where rules of evidence relaxed) – whether limited scope for costs orders in a protection order application

Acts Interpretation Act 1954, ss 10, 14(2), 14(3), 14B(1)(a), 14B(2), 15, 22, 32DA, 32DA(6)

Discrimination Law Amendment Act 2002

District Court of Queensland Act 1967, ss 52(1), 52(2)

Domestic and Family Violence Protection Act 1989, ss 3, 4(1), 9, 11A(1)(c), 12, 12(1), 12(2), 12(2)(a), 12(3), 12(4), 12B, 12B(1), 12B(2), 12B(3), 12F(1), 20, 20(1), 38(2)(a), 39, 39(2), 39AA, 39AA(1), 39AA(2), 61, 61(a), 63 – 66, 66(1)(b), 66(3), 84, 84(2), 84(2)(a), 84(3)

Domestic Violence (Family Protection) Act Amendment Bill 1992

Domestic Violence (Family Protection) Amendment Act 1992

Domestic Violence Legislation Amendment Bill 2001

Domestic Violence Legislation Amendment Act 2002

Evidence Act 1995 (Cwth)

Evidence Act 1995 (NSW)

Evidence Act 2001 (Tas)

Evidence Act 2008 (Vic)

Judicial Review Act1991

Justices Act 1886, ss 38(2)(a), 146(1), 148, 157 – 159, 222

Uniform Civil Procedure Rules 1999

WorkCover Queensland Act 1996, s 325(1)

Al Shakarji v Mulhern [2010] QDC 476

Amos v Brisbane City Council [2006] 1 Qd R 300

Atkinson v Gibson [2010] QCA 279

Bell v Bay-Jespersen [2004] 2 Qd R 235

Bottoms v Rogers [2006] QDC 080

Cachia v Hanes (1994) 179 CLR 403

CAR & Anor v Department of Child Safety [2010] QCA 49

Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1993-1994) 182 CLR 51

Cox v State of New South Wales (2004) 71 NSWLR 225

DMO v RPD [2009] QDC 92

Knight v FP Special Assets Ltd (1992) 174 CLR 178

MAN v MAM [2003] QDC 398

R v His Honour Judge Dodds and the Stipendiary Magistrate at Emerald, ex parte Smith and Graham [1990] 2 Qd R 80

Rejfek v McElroy (1964-1965) 112 CLR 517

Smith v Ash [2010] QCA 112

Tamawood Limited v Paans [2005] 2 Qd R 101

The Queen v Hendrie (1985) 37 SASR 581

Williams v Spautz (1992) 174 CLR 509

COUNSEL:

Mr B. Bell (lay advocate), by special leave, for the Appellant

Mr D. Pratt, for the Respondent

SOLICITORS:

Biggs…

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 HMG v BRC

Details

AGLC: HMG v BRC [2010] QDC 485
Case: [2010] QDC 485
Decision Date: 14 December 2010

CaseChat Overview and Summary

In the case of HMG v BRC, the appellant, HMG, sought a protection order against the respondent, BRC, under the Family Law Act 1975. The dispute arose from a domestic relationship that developed after the death of BRC’s parent. HMG, who was the de facto partner of the deceased, sought to establish that this relationship qualified as a domestic relationship for the purposes of the Act. The case was heard in the Queensland Court of Appeal.

The court was tasked with determining several legal issues, including whether the relationship between HMG and BRC constituted a domestic relationship as defined by the Family Law Act. The court also needed to consider the impact of the exclusion of potentially admissible evidence, particularly in light of the relaxed rules of evidence. Finally, the court had to examine the scope of costs orders that could be made in the context of a protection order application.

The court found that the relationship between HMG and BRC did not constitute a domestic relationship within the meaning of the Family Law Act. The court reasoned that a domestic relationship, as established by way of a family relationship, required a closer connection than that which existed between HMG and BRC. The court also noted that the exclusion of potentially admissible evidence did not prejudice the outcome of the case. Regarding costs, the court concluded that there was a limited scope for ordering costs in such applications. The appeal was allowed, the protection order was discharged, and all other orders made by the Magistrates Court were discharged. There were no orders as to the costs of the appeal.

Orders

Orders of the court

It is ordered:

that the appeal be allowed;1.

that the protection order made by the Magistrates Court at Sandgate on 19 February 2010 be discharged and, in lieu thereof, the application for such be dismissed;2.

that all other orders made by the Magistrates Court at Sandgate in the proceeding, including orders as to costs, be discharged; and3.

that there be no orders as to costs of the appeal.4.

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.

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Citations

HMG v BRC [2010] QDC 485

Most Recent Citation

Kelly v Amundsen [2012] QDC 201

Cases Citing This Decision

MHH v Lan [2016] QMC 1
Citation 1

…1 Attorney General v Wentworth (1988) 14 NSWLR 481 Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 GKE v EUT [2014] QDC 248 HMG v BRC [2010] QDC 485 LKF v MRR [2012] QDC 355 Lohe v Bird [2004] QSC 23 Mudie v Gainriver Pty Ltd (No 2) [2002] QCA 546 Re Cameron [1996] Qd R 218…
LKF v MRR [2012] QDC 355
Citation 2 (Para 1)

…conclusion that there was “a strict limitation on the power…. and the conditions for the application of that power [had] not been met.”[51] [50][2010] QDC 485. [51]Ibid at [62].…
Kelly v Amundsen [2012] QDC 201
Citation 3 (Para 13)

…The learned Magistrate noted that in the recent decision of HMG v BRC [2010] QDC 485, his Honour Judge Dorney QC held that in relation to a costs order pursuant to the Domestic and Family Violence Protection Act 1989 at paragraph 60 said, "There is no such order as a payment on an indemnity basis under the Justic…

See all citing cases →

Cases Cited

Al Shakarji v Mulhern [2010] QDC 476
Citation 1 (Para 1)

…As McGill SC DCJ determined in Al Shakarji v Mulhern [2010] QDC 476, where a party is deprived of a proper opportunity to provide the trial court with the benefit of evidence upon which both the trial court and the court on appeal when conducting its review can reach a conclusion with a view to deciding the matte…
Atkinson v Gibson [2010] QCA 279
Citation 2 (Para 1)

…Recently, in Atkinson v Gibson [2010] QCA 279, the Court of Appeal, through Fraser JA, with whom Mullins J expressly agreed, approved of the approach about what is required in the hearing of an appeal under s 222 of the Justices Act 1886. That is, the primary judge should make his or her own determination of the…
Smith v Ash [2010] QCA 112
Citation 3 (Para 1)

…As remarked by Chesterman JA, although in dissent as to the disposal of the appeal, in Smith v Ash [2010] QCA 112, though costs in summary criminal proceedings do not follow the event as they do in civil proceedings, a successful defendant in summary proceedings has a reasonable expectation of obtaining an order…
Car v Department of Child Safety [2010] QCA 49
Citation 4 (Para 1)

…of Queensland Act 1967 and the approach of the High Court in Cachia v Hanes (1994) 179 CLR 403 (discussed in CAR & Anor v Department of Child Safety [2010] QCA 49 at [4]), I make no orders as to costs of the appeal.…
DMO v RPD [2009] QDC 92
Citation 5 (Para 1)

…In DMO v RPD [2009] QDC 92, McGill SC DCJ considered the effect of s 84(2) of the Protection Act . After reference to ss 38(2)(a), 146(1) and 148 of the Justices Act 1886, he noted that those procedures are modified by the terms of s 84(2), also referring to s 84(3) which expressly provides that the court or mag…
Cox v State of New South Wales [2007] NSWSC 471
Citation 6

…Department of Child Safety [2010] QCA 49 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1993-1994) 182 CLR 51 Cox v State of New South Wales (2004) 71 NSWLR 225 DMO v RPD [2009] QDC 92 Knight v FP Special Assets Ltd (1992) 174 CLR 178 MAN v MAM [2003] QDC 398 R v His Honour Judge Dodds and the Stipendiary Magistra…
McLennan v McLennan [2003] QDC 398
Citation 7 (Para 1)

…In his Reasons, the learned Magistrate specifically referred to relevant authority (namely, MAN v MAM [2003] QDC 398 at [19]) and then concluded that the test was “clearly met” having regard to the level of animosity between the parties and having regard to the ongoing level of conflict which he held would exist…
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61
Citation 8 (Para 1)

…y with the statute, be exercised in a particular way: see Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1993-1994) 182 CLR 51 at 81. That this approach can extend to courts was endorsed by Dawson J: at 97, though in dissent on there being a discretion, rather than a duty.…
Cachia v Hanes [1994] HCA 14
Citation 9 (Para 1)

…, by a lawyer, particularly bearing in mind s 52(2) of the District Court of Queensland Act 1967 and the approach of the High Court in Cachia v Hanes (1994) 179 CLR 403 (discussed in CAR & Anor v Department of Child Safety [2010] QCA 49 at [4]), I make no orders as to costs of the appeal.…
Williams v Spautz [1992] HCA 34
Citation 10 (Para 1)

…ave no bearing on any other proceeding: at T: 1-3, 1-4. While his attention does not seem to have been drawn to such decisions as Williams v Spautz (1992) 174 CLR 509, it is clear that there was nothing before the learned Magistrate which would have established that the existing proceeding could be characterised as a…
Knight v FP Special Assets Ltd [1992] HCA 28
Citation 11 (Para 1)

…of a court or tribunal to award costs to a party is “now the creature of statute”, citing, among authorities, Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 193: at 110 [23]. As further expressed, the nature and extent of that power can only be discerned by a close consideration of the terms of the statute whi…
Rejfek v McElroy [1965] HCA 46
Citation 12 (Para 1)

…the Protection Act requires, even bearing in mind considerations such as those raised in Rejfek v McElroy (1964-1965) 112 CLR 517.…
BBB v RAB [2006] QDC 080
Citation 13 (Para 1)

…As remarked by McGill SC DCJ in Bottoms v Rogers [2006] QDC 080, s 65 of the Protection Act actually states that the appeal is “by way of rehearing on the record and under the Rules of Court applying to the District Court , or insofar as those rules cannot be applied to such appeals, in accordance with directions…

Legislation Cited

Domestic and Family Violence Protection Act 1989 (Qld) 11A(1)(c), 12, 12(1), 12(2), 12(2)(a), 1...
13 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld) 10, 14(2), 14(3), 14B(1)(a), 14B(2), 15,...
10 mentions (from Para 1)
Justices Act 1886 (Qld) 146(1), 148, 157, 38(2)(a)
5 mentions (from Para 1)
District Court of Queensland Act 1967 (Qld) 52(1), 52(2)
3 mentions (from Para 1)
WorkCover Queensland Act 1996 (Qld) 325(1)
2 mentions (from Para 1)
Discrimination Law Amendment Act 2002 (Qld)
1 mention (from Para 1)
Domestic Violence (Family Protection) Amendment Act 1992 (Qld)
1 mention (from Para 1)
Domestic Violence Legislation Amendment Act 2002 (Qld)
1 mention (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Evidence Act 2001 (TAS)
1 mention (from Para 1)
Evidence Act 2008 (Vic)
1 mention (from Para 1)
Judicial Review Act 1991 (Qld)
1 mention (from Para 1)
Justice Act 1886 (Qld)
1 mention (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 1)

CITATION:	HMG v BRC [2010] QDC 485
PARTIES:	HMG (Appellant) V BRC (Respondent)
FILE NO/S:	871 of 2010
DIVISION:	Appellate Jurisdiction
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Sandgate
DELIVERED ON:	14 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	7 December 2010
JUDGE:	Dorney QC, DCJ
ORDER:	It is ordered: that the appeal be allowed;1. that the protection order made by the Magistrates Court at Sandgate on 19 February 2010 be discharged and, in lieu thereof, the application for such be dismissed;2. that all other orders made by the Magistrates Court at Sandgate in the proceeding, including orders as to costs, be discharged; and3. that there be no orders as to costs of the appeal.4.
CATCHWORDS:	APPEAL – whether a “domestic relationship”, established by way of a “family relationship”, exists where a de facto partner of a deceased parent of the respondent to the application seeks an order – effect of exclusion of potentially admissible evidence (where rules of evidence relaxed) – whether limited scope for costs orders in a protection order application Acts Interpretation Act 1954, ss 10, 14(2), 14(3), 14B(1)(a), 14B(2), 15, 22, 32DA, 32DA(6) Discrimination Law Amendment Act 2002 District Court of Queensland Act 1967, ss 52(1), 52(2) Domestic and Family Violence Protection Act 1989, ss 3, 4(1), 9, 11A(1)(c), 12, 12(1), 12(2), 12(2)(a), 12(3), 12(4), 12B, 12B(1), 12B(2), 12B(3), 12F(1), 20, 20(1), 38(2)(a), 39, 39(2), 39AA, 39AA(1), 39AA(2), 61, 61(a), 63 – 66, 66(1)(b), 66(3), 84, 84(2), 84(2)(a), 84(3) Domestic Violence (Family Protection) Act Amendment Bill 1992 Domestic Violence (Family Protection) Amendment Act 1992 Domestic Violence Legislation Amendment Bill 2001 Domestic Violence Legislation Amendment Act 2002 Evidence Act 1995 (Cwth) Evidence Act 1995 (NSW) Evidence Act 2001 (Tas) Evidence Act 2008 (Vic) Judicial Review Act1991 Justices Act 1886, ss 38(2)(a), 146(1), 148, 157 – 159, 222 Uniform Civil Procedure Rules 1999 WorkCover Queensland Act 1996, s 325(1) Al Shakarji v Mulhern [2010] QDC 476 Amos v Brisbane City Council [2006] 1 Qd R 300 Atkinson v Gibson [2010] QCA 279 Bell v Bay-Jespersen [2004] 2 Qd R 235 Bottoms v Rogers [2006] QDC 080 Cachia v Hanes (1994) 179 CLR 403 CAR & Anor v Department of Child Safety [2010] QCA 49 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1993-1994) 182 CLR 51 Cox v State of New South Wales (2004) 71 NSWLR 225 DMO v RPD [2009] QDC 92 Knight v FP Special Assets Ltd (1992) 174 CLR 178 MAN v MAM [2003] QDC 398 R v His Honour Judge Dodds and the Stipendiary Magistrate at Emerald, ex parte Smith and Graham [1990] 2 Qd R 80 Rejfek v McElroy (1964-1965) 112 CLR 517 Smith v Ash [2010] QCA 112 Tamawood Limited v Paans [2005] 2 Qd R 101 The Queen v Hendrie (1985) 37 SASR 581 Williams v Spautz (1992) 174 CLR 509
COUNSEL:	Mr B. Bell (lay advocate), by special leave, for the Appellant Mr D. Pratt, for the Respondent
SOLICITORS:	Biggs…