JKL v Dba (No. 3) - [2022] QDC 163

DISTRICT COURT OF QUEENSLAND

CITATION:

JKL v DBA (No. 3) [2022] QDC 163

PARTIES:

JKL

(appellant)

v

DBA

(respondent)

FILE NO:

17 of 2021

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Gympie Magistrates Court

DELIVERED ON:

29 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Written submissions

JUDGE:

Dearden DCJ

ORDER:

The appellant pay the respondent’s costs fixed at $3,142.59

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – appeal against application to vary domestic violence order – where appeal was unsuccessful – where written submissions made as to costs

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – OTHER MATTERS – appeal against application to vary domestic violence order – where appeal was unsuccessful – where written submissions made as to costs

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) s 142

Uniform Civil Procedure Rules 1999 (Qld) rr 785, 766, 771, 681

CASES:

AVI v SLA (No. 2) [2019] QDC 207

BAK v Gallagher & Anor (No. 2) [2018] QDC 132

HZA v SHA [2019] QDC 125

John Urquhartt/as Hart Renovations v Partington& Anor [2016] QCA 199

Kilvington v Grigg & Ors (No. 2) [2011] QDC 37

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

LAF v AP (No. 2) [2022] QDC 104

MNT v MEE (No. 2) [2020] QDC 100

Oshlack v Richmond River Council (1998) 193 CLR 72

COUNSEL:
JKL (self-represented)

P Courtney (Sol)

SOLICITORS:
Appellant in person

KLM Solicitors for the respondent

Introduction

On 22 June 2022, I delivered judgment in an appeal filed by the appellant on 9 November 2021 in respect of an application the appellant filed on 18 December 2020, seeking to vary a final protection order made by the Gympie Magistrates Court on 20 November 2019. I ordered that the applicant’s appeal be dismissed and made a further order that written submissions on the issue of costs be provided by the appellant and the respondent’s legal representatives. The appellant and the respondent each provided written submissions.
The chronology in respect of this matter is helpfully summarised by the respondent as follows:-
“1.On 20 November 2019 a final protection order was made by the Gympie Magistrates Court which named the appellant as the respondent, the respondent as the aggrieved, and the parties’ five children as named persons (“the Protection Order”).
2.On 18 December 2020, the appellant filed an application to vary the protection order (“the Application”) in the Gympie Magistrates Court.
3.The matter was heard before [the learned acting magistrate] in the Gympie Magistrates Court on 29 September 2021.
4.On 14 October 2021, the presiding magistrate handed down her decision. Her Honour dismissed the application and ordered that the appellant pay the respondent’s costs in the amount of $500.
5.On 9 November 2021, the appellant filed a notice of appeal with respect to the decision made on 14 October 2021.
6.On 13 June 2022, the appeal was heard in the Gympie District Court before his Honour Judge Dearden.
7.On 22 June 2022,…

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 JKL v Dba (No. 3)

Details

AGLC: JKL v Dba (No. 3) [2022] QDC 163
Case: [2022] QDC 163
Decision Date: 29 July 2022

CaseChat Overview and Summary

The appeal in JKL v Dba (No. 3) involved an unsuccessful appeal against an application to vary a domestic violence order. The matter was heard in the Queensland Court of Appeal, where the appellant sought to challenge the original decision. The primary issue before the court was whether the appeal was justified and, if not, whether the appellant should be ordered to pay the respondent's costs.

The court needed to determine the validity of the appellant's arguments and whether the appeal was frivolous or vexatious. Given the appellant's unsuccessful appeal, the court also had to consider the appropriate costs to be awarded to the respondent. The appeal presented a complex interplay between the procedural aspects of appeals in domestic violence matters and the substantive legal issues concerning the variation of the order itself.

The Court of Appeal found that the appeal was without merit and was likely to be considered frivolous or vexatious. As a result, the court determined that the appellant should be ordered to pay the respondent's costs. After considering the written submissions, the court fixed the respondent's costs at $3,142.59, which the appellant was ordered to pay.

Orders

Orders of the court

The appellant pay the respondent’s costs fixed at $3,142.59

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.

CITATION:	JKL v DBA (No. 3) [2022] QDC 163
PARTIES:	JKL (appellant) v DBA (respondent)
FILE NO:	17 of 2021
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Gympie Magistrates Court
DELIVERED ON:	29 July 2022
DELIVERED AT:	Brisbane
HEARING DATE:	Written submissions
JUDGE:	Dearden DCJ
ORDER:	The appellant pay the respondent’s costs fixed at $3,142.59
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – appeal against application to vary domestic violence order – where appeal was unsuccessful – where written submissions made as to costs MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – OTHER MATTERS – appeal against application to vary domestic violence order – where appeal was unsuccessful – where written submissions made as to costs
LEGISLATION:	Domestic and Family Violence Protection Act 2012 (Qld) s 142 Uniform Civil Procedure Rules 1999 (Qld) rr 785, 766, 771, 681
CASES:	AVI v SLA (No. 2) [2019] QDC 207 BAK v Gallagher & Anor (No. 2) [2018] QDC 132 HZA v SHA [2019] QDC 125 John Urquhartt/as Hart Renovations v Partington& Anor [2016] QCA 199 Kilvington v Grigg & Ors (No. 2) [2011] QDC 37 Knight v FP Special Assets Ltd (1992) 174 CLR 178 LAF v AP (No. 2) [2022] QDC 104 MNT v MEE (No. 2) [2020] QDC 100 Oshlack v Richmond River Council (1998) 193 CLR 72
COUNSEL:	JKL (self-represented) P Courtney (Sol)
SOLICITORS:	Appellant in person KLM Solicitors for the respondent