DISTRICT COURT OF QUEENSLAND
CITATION:
JKL v DBA (No. 4) [2024] QDC 65
PARTIES:
JKL
(appellant)
v
DBA(respondent)
FILE NO/S:
1/24
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Gympie Magistrates Court
DELIVERED ON:
22 April 2024 (delivered ex tempore)
DELIVERED AT:
Gympie
HEARING DATE:
22 April 2024
JUDGES:
Farr SC DCJ
ORDER:
1. Appeal dismissed
CATCHWORDS:
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appellant appeals the summary dismissal of his application to vary a Protection Order – where the Order is enforced for five years – where the appellant is named as the respondent in the Order – where the Order contains six conditions directed at the appellant’s dealings with the respondent and their five children – whether the appellant was afforded procedural fairness – whether the Magistrate failed to take into consideration the AustralianHuman Rights Commission Act 1986 (Cth) – whether the Magistrate made errors of fact – whether the Magistrate erred in his consideration of ‘major changes’ submitted by the appellant
LEGISLATION:
Domestic and Family Violence Protection Act 2012 (Qld)
CASES:
House v The King [1936] HCA 40
JKL v DBA(No. 2) [2022] QDC 142
COUNSEL:
The appellant was self-represented
L. Ygoa-McKeown for the respondentSOLICITORS:
The appellant was self-represented
KLM Solicitors for the respondent
Introduction & background
The appellant appeals the summary dismissal of his application filed on the 15th of June 2023 to vary a protection order, naming him as the respondent. The decision was handed down in the Magistrates Court at Gympie on the 13th of December last year.
The history of this matter relevantly is as follows.
(a)on 20 November 2019, a final protection order was made by the Gympie Magistrates Court, which named the appellant as the respondent and the respondent as the aggrieved, and the parties’ children as named persons.
(b)the appellant appealed the making of that final protection order, and his Honour Judge Byrne KC dismissed that appeal in a decision delivered on 22 June 2020, JKL v DBA [2020] QDC 159.
(c)on 18 December 2020, the appellant filed an application to vary in the Gympie Magistrates Court. The application sought that the final protection order be varied to remove the children as named persons.
(d)the application was heard before the Acting Magistrate in the Gympie Magistrates Court on 29 September 2021. At that hearing, the appellant, also, sought for the final protection order to be revoked or, in the alternative, he sought for the children to be removed as named persons and for the condition prohibiting him from approaching the aggrieved be removed. That application was dismissed on the 14th of October 2021.
(e)on 9 November 2021, the appellant filed a notice of appeal with respect to the decision made on 14 October 2021. That appeal was heard before his Honour Judge Dearden on 13 June 2022, and his Honour dismissed the appeal in…
Continue reading JKL v DBA (No 4)
Sign in free to access the full text
- AGLC
- JKL v DBA (No 4) [2024] QDC 65
- Case
- [2024] QDC 65
- Decision Date
CaseChat Overview and Summary
The court examined the grounds of appeal in detail. The first ground, which alleged a lack of procedural fairness, was rejected as the appellant had ample opportunity to present his case and demonstrated no actual disadvantage from being unrepresented. The second ground, which claimed the police interview was inadmissible due to impaired custody, was also dismissed as the Magistrate did not rely on the interview when dismissing the application. The third ground, which alleged the Magistrate failed to consider the Australian Human Rights Commission Act 1986 (Cth), was deemed irrelevant as the Magistrate did not base his decision on the grounds presented. Finally, the court found no merit in the appellant's claim that the Magistrate erred in considering his submissions about 'major changes'.
Orders
Orders of the court
1. Appeal dismissed
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
Section 169 of the Domestic and Family Violence Protection Act 2012 (Qld) provides for the powers of this Court on appeal. I note that section 169(2) provides that the decision of this Court is final and conclusive. Section 168(1) provides that an appeal must be decided on the evidence and proceedings before the Court that made the decision being appealed. Subsection (2) provides, however, that the appellate Court may order that the appeal be heard afresh in whole or part. Importantly, the onus is on the appellant to show that there is some error in the decision under appeal and given that the refusal to vary an order involves the exercise of discretion, an error of the kind referred to in House v The King [1936] HCA 40 needs to be demonstrated. Furthermore, even if such an error is demonstrated, the whole of the evidence must be considered to determine whether the order was, nevertheless, justified.Consideration Turning then to the individual grounds of appeal.Ground 1 Ground 1, that is, the appellant was not afforded procedural fairness. There is no merit to this ground. A similar argument has been advanced by the appellant on two prior occasions before Judge Dearden and Judge Byrne KC. On both occasions, the argument failed, and their Honours made comments such as:The appellant was better armed than many self-represented litigants, and he suffered no actual disadvantage – And:The appellant’s advocacy skills were such that he was suffering no actual disadvantage in the conduct of the appeal. The respondent has submitted that such comments are apposite here. I agree. In this matter, the appellant was afforded all opportunity to advance his argument as to why the matter should not have been dismissed summarily, an opportunity which he enthusiastically embraced. He also demonstrated in oral submissions before the Court that if he has a cognitive impairment, it is very minor, and that he was not someone easily intimidated by the process or the Court or by lawyers. Also, any alleged memory loss, which is unspecified, would have had no relevance to the Magistrate’s decision in this matter and is of no assistance to the appellant today. Finally, I must add that the observations of Byrne KC DCJ and Dearden DCJ reflect my own observations of the appellant, and I am of the view that his lack of legal representation did not impact the outcome of the application before the Magistrate. Legally represented or not, the material is still the material, and it is inadequate for the purposes suggested. This ground, therefore, fails.Ground 2 This ground alleges that the police interview with the appellant was not admissible because the appellant had impaired custody, and he was threatened with incarceration by a police officer. Unfortunately for the appellant, though, no such evidence was relied upon by the Magistrate when he decided to dismiss the application summarily to vary the order. Consequently, this ground has no merit and must fail. Ground 3 This ground appears to be that the Magistrate failed to consider what the appellant has called the “Australian Human Rights Act 1986”.