JC v KP - [2017] QDC 175

DISTRICT COURT OF QUEENSLAND

CITATION:	JC v KP [2017] QDC 175
PARTIES:	JC (appellant) v KP (respondent)
FILE NO/S:	D 1 of 2017
DIVISION:	Appellate
PROCEEDING:	Appeal under s 164 and 165 of the Domestic and Family Violence Protection Act 2012
ORIGINATING COURT:	Magistrates Court at Gatton
DELIVERED ON:	26 May 2017
DELIVERED AT:	District Court at Gympie
HEARING DATE:	26 May 2017
JUDGE:	Long SC DCJ
ORDER:	The decision of the Magistrate to grant a protection order, on 10 January 2017, is set aside and the proceeding upon the application of the respondent filed at the Magistrates Court at Gatton on 22 December 2016, is remitted to that Court, to be dealt with according to law and by first being mentioned, at a time to be notified to the parties.
CATCHWORDS:	APPEAL – APPEAL AND NEW TRIAL – s 164 and 165 of the Domestic and Family Violence Protection Act 2012 – Where a protection order was made against the appellant pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 – Where the order was made “by consent without admissions” – Where the appellant contends that his consent to the order was induced by the Magistrate representing to him that he would not lose his shooters licence or his right to possess his firearm as a result of the order – Whether the appellant consented to making the order – Whether there has been any error on the part of the Magistrate
LEGISLATION:	Domestic and Family Violence Protection Act 2012 ss 37; 51; 51(7) 84; 84(2); 85; 164 and 165
COUNSEL:	G Wilde (sol) for the appellant The respondent appeared on his own behalf
SOLICITORS:	Power and Cartwright Lawyers for the appellant The respondent appeared on his own behalf

AUSCRIPT AUSTRALASIA PTY LIMITED

ACN 110 028 825

T: 1800 AUSCRIPT (1800 287 274)
W: clientservices@auscript.com.au

TRANSCRIPT OF PROCEEDINGS

Copyright in this transcript is vested in the State of Queensland (Department of Justice & Attorney-General). Copies thereof must not be made or sold without the written authority of the Executive Manager, Support Services, Queensland Courts.

DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE LONG SC
No 1 of 2017
JC Appellant
and
KP Respondent
GYMPIE
2.50 PM, FRIDAY, 26 MAY 2017
JUDGMENT

Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

HIS HONOUR: In this matter, the appellant appeals, by notice of appeal filed on the 31^st of January 2017…

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 JC v KP

Details

AGLC: JC v KP [2017] QDC 175
Case: [2017] QDC 175
Decision Date: 26 May 2017

CaseChat Overview and Summary

JC appeals against an order made by the Magistrate on 10 January 2017. The order was a protection order made pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 and it was made by consent without admissions. The appellant contends that his consent to the order was induced by the Magistrate representing to him that he would not lose his shooters licence or his right to possess his firearm as a result of the order. The appellant submits that the Magistrate should have been aware that he did not fully understand the effect of the order at the time of giving apparent consent and that the order was therefore unlawful. The respondent resists the appeal and contends that his brother should have been aware of the law and, in effect, should have had an understanding of what his obligations were in respect of his shooters licence and that in any event, it is clear that he consented to the order being made.

The court must ensure that the aggrieved or respondent understands the nature, purpose and legal implications of the proceeding and of any order or ruling made by the court. The obligation to ensure that the aggrieved or respondent understands the nature, purpose and legal implications of any order or ruling made by the court, arises when a court is about to make a domestic violence order and therefore, before it is made. The obligation of the court to ensure the respondent understands the purpose, terms and effect of the proposed order, including for example that if the respondent has a weapons licence, the licence is dealt with by the Weapons Act, section 27A or 28A, is clear. The obligation is to ensure the respondent understands these consequences before the order is made. Here, it was the former situation and the particular circumstances indicate, at the very least, that a concern was raised as to the particular consequences that are expressly referred to in sections 84(2)(a)(ii) and (iii) and there was, at least, an absence of compliance with the obligation to ensure that the respondent understood those consequences. And whatever may have occurred in response to the applicant’s question, it is clear that his expressed consent to making of the order, proceeded upon his false understanding that there would be no such consequence and therefore, an incorrect understanding that should have been apparent to the Magistrate. The decision of the Magistrate to grant a protection order, on 10 January 2017, is set aside and the proceeding upon the application of the respondent filed at the Magistrates Court at Gatton on 22 December 2016, is remitted to that Court, to be dealt with according to law and by first being mentioned, at a time to be notified to the parties.

The appeal is allowed. The decision of the Magistrate to grant a protection order, on 10 January 2017, is set aside and the proceeding upon the application of the respondent filed at the Magistrates Court at Gatton on 22 December 2016, is remitted to that Court, to be dealt with according to law and by first being mentioned, at a time to be notified to the parties.

Orders