Jobson v Fallon

[2007] QDC 126

DISTRICT COURT OF QUEENSLAND

CITATION:

Jobson v Fallon [2007] QDC 126

PARTIES:

LES GARY JOBSON

(Appellant)

V

TRACY MAJELLA FALLON

(Respondent)

FILE NO/S:

D71/2005

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

18 May, 2007

DELIVERED AT:

Beenleigh

HEARING DATE:

5 March 2007

JUDGE:

Dearden DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL – Domestic and Family Violence Protection Act – strike out of Protection Order - costs

LEGISLATION:

Domestic and Family Violence Protection Act 1989 (Qld) ss 61, 63, 63(1), 63(1)(a)(i), 64, 65, 66

CASES:

Byrnes v R (1999) 191 CLR 1

Coulter v Ryan [2006] QCA 567

Owen v Cannavan [1995] QCA 324

Schneider v Curtis [1967] Qd R 300

COUNSEL:

Appellant appeared on his own behalf

Mr J Briggs for the respondent

SOLICITORS:

Appellant appeared on his own behalf

Legal Aid Queensland for the respondent

Introduction

1. This is an appeal pursuant to the Domestic and Family Violence Protection Act 1989 (“DFVPA”) in respect of a Magistrate’s decision on 2 June 2005 at Beenleigh, refusing to order costs in favour of the appellant after striking out the respondent’s application for a protection order.

Background

1. The appellant and the respondent had been married with three children.  The respondent made an application for a protection order in the Beenleigh Magistrates Court on 24 November 2004.  Temporary protection orders were made in favour of the respondent on 22 December 2004, 19 January 2005, and 16 February 2005.  The matter proceeded to hearing in the Beenleigh Magistrates Court on 2 June 2005.

1. The respondent gave her evidence-in-chief by way of a written statement, and before the respondent was cross-examined, the appellant’s counsel made a submission that no acts of domestic violence were established and that the application should be struck out.

1. As a consequence of that submission by the appellant’s counsel, the respondent’s application for a protection order was struck out, and the appellant then did not proceed with a cross application for a protection order.  The appellant’s counsel made an application for costs pursuant to DFVPA s 61, which was refused by the learned magistrate. The learned magistrate held that the application for a protection order was dismissed “for want of evidence” but the learned magistrate did not, in making that finding, consider the protection order application to be “frivolous”[1].

   [1] Decision T10

The Law

1. The appeal provisions of the DFVPA are contained in s 63. There is, however, no specific provision contained in the DFVPA empowering the District Court (or any other court) to hear an appeal in respect of a Magistrate’s decision either to grant or refuse costs.

1. The right to appeal is peculiarly a creature of statute[2]. Appeals are provided for in Pt 5 (ss 63-66) of the DFVPA. Relevantly (in the context of this appeal) s 63(1)(a)(i) provides:

   [2]Byrnes v R (1999) 191 CLR 1, 35 (per Kirby J)

“(1)A person who is aggrieved by an order of a Magistrates Court or the Childrens Court constituted by a Childrens Court Magistrate, or a decision…