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Jones v DBA

Jones v DBA

Case [2019] QDC 149 21 August 2019

Appeal

Jurisdiction

Protection Orders

Domestic and Family Violence Protection Act 2012 (Qld)

Family Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

Jones v DBA [2019] QDC 149

PARTIES:

FRANK RANDALL JONES
(appellant)

v

DBA
(respondent)

FILE NO/S:

D7 of 2019

DIVISION:

District

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Gympie

DELIVERED ON:

21 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 June 2019

JUDGE:

Sheridan DCJ

ORDER:

1.   The appeal is allowed.

2.   The protection order made in the Magistrates Court on 6 March 2019 is set aside.

3.   The matter is remitted to the Magistrates Court.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where hearing before learned magistrate for a breach by the appellant of a temporary protection order – where learned magistrate decided pursuant to s 42 of the Domestic and Family Violence Protection Act 2012 (Qld) the court may of its own initiative make or vary the order – where learned magistrate varied temporary protection order so that it became a final protection order of five years – whether the learned magistrate had power under s 42 of the Domestic and Family Violence Protection Act 2012 (Qld) to vary the temporary protection order so as to convert it to a protection order – whether interpretation of the word “vary” correct

Acts interpretation Act1954 (Qld) s 14A
Domestic and Family Violence Protection Act 2012 (Qld) s 3, s 23, s 34, s 37, s 42, s 44, s 45, s 46, s 97, s 98, s 129, s 164, s 168, s 169
Uniform Civil Procedure Rules 1999 (Qld) r 783

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied
Allesch v Maunz (2000) 203 CLR 172, cited
Bode v Commissioner of Police [2018] QCA 186, followed
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, cited
Commonwealth of Australia v Esber (1991) 29 FCR 343, cited
Electronic Industries Ltd v David Jones Ltd (1954) 91 CLR 288, cited
Fearnley v Finlay [2014] QCA 155, applied
Jones v Commissioner of Police [2019] QDC 148, cited
In Re Ball’s Settlement Trusts; Ball v Ball and Others [1968] 1 WLR 899, cited
Robinson Helicopter Company Inc v McDermott [2016] HCA 22, applied
R v Tonkin; ex parte Federated Ships’ Painters and Dockers’ Union of Australia (1954) 92 CLR 526, cited

COUNSEL:

The appellant was self-represented

C van der Weegen for the respondent

SOLICITORS:

KLM Layers for the respondent

This is an appeal against the decision of a magistrate to make a five year protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act). The appellant represented himself and the respondent was represented by counsel.

Background

The decision appealed against was made following a hearing before the learned magistrate for a breach by the appellant of a temporary protection order. The temporary protection order had been made on 28 May 2018 following an ex parte application. The temporary protection order…

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 Jones v DBA

Details

AGLC: Jones v Dba [2019] QDC 149
Case: [2019] QDC 149
Decision Date: 21 August 2019

CaseChat Overview and Summary

The appellant in Jones v DBA challenged the decision of a magistrate to vary a temporary protection order under the Domestic and Family Violence Protection Act 2012 (Qld). The matter was heard in the Magistrates Court, where the appellant was found to have breached the order. Pursuant to section 42 of the Act, the magistrate altered the temporary protection order, extending its duration from a temporary to a final order of five years. The appellant appealed the decision, arguing that the magistrate did not have the power to unilaterally convert the temporary protection order into a final one without following the requisite statutory process.

The court was tasked with determining whether the magistrate had the authority to alter the temporary protection order in the manner done, and if the interpretation of the word "vary" was correct. The court needed to examine the relevant statutory provisions and consider whether the magistrate's decision was consistent with the legislative intent and whether the process followed was in accordance with the law.

The court found that the magistrate did not have the power to unilaterally convert a temporary protection order into a final order. The court held that the interpretation of the word "vary" in section 42 of the Act was too broad and did not permit the magistrate to make such a significant change. The court emphasised that the statutory process for converting a temporary order into a final one was not followed, which rendered the magistrate's decision invalid. Consequently, the appeal was allowed, and the protection order made in the Magistrates Court was set aside. The matter was remitted to the Magistrates Court for further proceedings.

Orders

Orders of the court

1. The appeal is allowed.

2. The protection order made in the Magistrates Court on 6 March 2019 is set aside.

3. The matter is remitted to the Magistrates Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Jones v Dba [2019] QDC 149

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Jones v Commissioner of Police
[2019] QDC 148 Para 1

…secutively with the appeal against the appellant’s conviction for breach. I have today dismissed that appeal.[1] [1] Jones v Commissioner of Police [2019] QDC 148.…
Bode v Commissioner of Police
[2018] QCA 186 Para 1

…he appellant must demonstrate some legal, factual or discretionary error of the trial magistrate.[3] [2]McMurdo JA in Bode v Commissioner of Police [2018] QCA 186, [42] citing Robinson Helicopter Inc v McDermott [2016] HCA 22, [43]. [3] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commissi…
Robinson Helicopter Co Inc v McDermott
[2016] HCA 22 Para 1

…ry error of the trial magistrate.[3] [2]McMurdo JA in Bode v Commissioner of Police [2018] QCA 186, [42] citing Robinson Helicopter Inc v McDermott [2016] HCA 22, [43]. [3] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [14] per Gleeson CJ, Gaudron and Hayne J…
Fearnley v Finlay
[2014] QCA 155 Para 1

…14] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47], referred to by Jackson J in Fearnley v Finlay [2014] QCA 155, [17]. [15]Ibid.…
Lacey v Attorney-General (Qld)
[2011] HCA 10 Para 1

…tute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.”[20] [20] Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [44].…
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue
[2009] HCA 41 Para 1

…ly at some later stage when ambiguity might be thought to arise.”[15] [14] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47], referred to by Jackson J in Fearnley v Finlay [2014] QCA 155, [17]. [15]Ibid.…
Coal and Allied Operations Pty Ltd v Australian industrial Relations Commission
[2000] HCA 47 Para 1

…citing Robinson Helicopter Inc v McDermott [2016] HCA 22, [43]. [3] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [14] per Gleeson CJ, Gaudron and Hayne JJ; Allesch v Maunz (2000) 203 CLR 172 at 180 per Gaudron, McHugh, Gummow and Hayne JJ.…
Allesch v Maunz
[2000] HCA 40 Para 1

…lied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, [14] per Gleeson CJ, Gaudron and Hayne JJ; Allesch v Maunz (2000) 203 CLR 172 at 180 per Gaudron, McHugh, Gummow and Hayne JJ.…
Esber v the Commonwealth
[1992] HCA 20 Para 1

…the power to vary a trust was held not to include a power to alter the whole substrata of the trust so that it became a new trust.[19] [17] Commonwealth of Australia v Esber (1991) 29 FCR 343; (1991) 101 ALR 35, 53. [18](1954) 91 CLR 288. [19][1968] 1 WLR 899.…
Australian Broadcasting Tribunal v Bond
[1990] HCA 33 Para 1

…ower to alter the whole substrata of the trust so that it became a new trust.[19] [17] Commonwealth of Australia v Esber (1991) 29 FCR 343; (1991) 101 ALR 35, 53. [18](1954) 91 CLR 288. [19][1968] 1 WLR 899.…
Electronic Industries Ltd v David Jones Ltd
[1954] HCA 69

…v Australian Industrial Relations Commission (2000) 203 CLR 194, cited Commonwealth of Australia v Esber (1991) 29 FCR 343, cited Electronic Industries Ltd v David Jones Ltd (1954) 91 CLR 288, cited Fearnley v Finlay [2014] QCA 155, applied Jones v Commissioner of Police [2019] QDC 148, cited In Re Ball’s Settlement Trusts; Ball v Ball and Others […
R v Tonkin; Ex parte
[1954] HCA 38 Para 1

…on, qualification or otherwise of a term. Implicitly, the power to vary did not involve setting aside an award or substituting a new award. [16](1954) 92 CLR 526.…
Lacey v Attorney-General of Queensland
[2011] HCA 107 Para 1

…d structure, albeit it may be identified by reference to common law and statutory rules of construction.”[20] [20] Lacey v Attorney-General (Qld) (2011) 242 CLR 573, [44].…
[1968] 1 WLR 899
[1968] 1 WLR 899 Para 1

…that it became a new trust.[19] [17] Commonwealth of Australia v Esber (1991) 29 FCR 343; (1991) 101 ALR 35, 53. [18](1954) 91 CLR 288. [19][1968] 1 WLR 899.…
Alumina Pty Ltd v Commissioner of Territory Revenue
260 ALR 1 Para 1

…ontext be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise.”[15] [14] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47], referred to by Jackson J in Fearnley v Finlay [2014] QCA 155, [17]. [15]Ibid.…

Legislation cited in this decision · 2

Domestic and Family Violence Protection Act 2012 (Qld)
3 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
783 2 mentions (from Para 1)

CITATION:	Jones v DBA [2019] QDC 149
PARTIES:	FRANK RANDALL JONES (appellant) v DBA (respondent)
FILE NO/S:	D7 of 2019
DIVISION:	District
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Gympie
DELIVERED ON:	21 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	23 June 2019
JUDGE:	Sheridan DCJ
ORDER:	1. The appeal is allowed. 2. The protection order made in the Magistrates Court on 6 March 2019 is set aside. 3. The matter is remitted to the Magistrates Court.
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where hearing before learned magistrate for a breach by the appellant of a temporary protection order – where learned magistrate decided pursuant to s 42 of the Domestic and Family Violence Protection Act 2012 (Qld) the court may of its own initiative make or vary the order – where learned magistrate varied temporary protection order so that it became a final protection order of five years – whether the learned magistrate had power under s 42 of the Domestic and Family Violence Protection Act 2012 (Qld) to vary the temporary protection order so as to convert it to a protection order – whether interpretation of the word “vary” correct Acts interpretation Act1954 (Qld) s 14A Domestic and Family Violence Protection Act 2012 (Qld) s 3, s 23, s 34, s 37, s 42, s 44, s 45, s 46, s 97, s 98, s 129, s 164, s 168, s 169 Uniform Civil Procedure Rules 1999 (Qld) r 783 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied Allesch v Maunz (2000) 203 CLR 172, cited Bode v Commissioner of Police [2018] QCA 186, followed Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, cited Commonwealth of Australia v Esber (1991) 29 FCR 343, cited Electronic Industries Ltd v David Jones Ltd (1954) 91 CLR 288, cited Fearnley v Finlay [2014] QCA 155, applied Jones v Commissioner of Police [2019] QDC 148, cited In Re Ball’s Settlement Trusts; Ball v Ball and Others [1968] 1 WLR 899, cited Robinson Helicopter Company Inc v McDermott [2016] HCA 22, applied R v Tonkin; ex parte Federated Ships’ Painters and Dockers’ Union of Australia (1954) 92 CLR 526, cited
COUNSEL:	The appellant was self-represented C van der Weegen for the respondent
SOLICITORS:	KLM Layers for the respondent