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JSA v MPR

JSA v MPR

Case [2022] QDC 111 20 May 2022

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DISTRICT COURT OF QUEENSLAND

CITATION:

JSA v MPR [2022] QDC 111

PARTIES:

JSA
(appellant)

v

MPR
(respondent)

FILE NO:

2/22

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court
Caloundra

DELIVERED ON: 20 May 2022

DELIVERED AT:

Maroochydore

HEARING DATE:

10 May 2022

HEARD AT:

Maroochydore

JUDGE:

Cash QC DCJ

ORDER:

1.          The appeal is dismissed.

2.          The decision of the Magistrate to dismiss the application and to award costs fixed in the sum of $9,362.30 to the respondent is confirmed.

3.          The respondent file and serve upon the appellant on or before 3 June 2022 any written submissions as to the costs of the appeal, such submissions not to exceed five pages.

4.          The appellant file and serve upon the respondent on or before 10 June 2022 any written submissions as to the costs of the appeal, such submissions not to exceed five pages.

5.          Each party has leave to file and serve on or before 17 June 2022 any application for leave to make oral submissions as to the costs of the appeal.

6.          In the event written submissions as to costs are filed by any party, and in the absence of any application to make oral submissions, I will decide the costs of the appeal on the written submissions and without oral hearing.

CATCHWORDS

FAMILY LAW – DOMESTIC VIOLENCE – APPLICATION FOR A PROTECTION ORDER UNDER THE DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT – APPEAL – where appellant brought an application for a protection order – where matter heard and dismissed – whether the Magistrate failed to give adequate reasons for the decision – whether the decision to dismiss the application was unreasonable or plainly unjust – discretion to award costs of the application for a protection order – whether Magistrate failed to give adequate reasons for finding the application was malicious and vexatious – whether the decision to award costs was unreasonable or plainly unjust

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 38
Domestic and Family Violence Protection Act 2012 (Qld), s 37, 145, s 157, s 165, s 168, s 169, s 184

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336, 362
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, [57]-[59]
HBY v WBI & Anor [2020] QDC 81, [16]-[18]
HZA v ZHA [2018] QDC 125
KAV v Magistrate Bentley & Anor [2016] QSC 46
NBE v PRT & Anor [2018] QDC 29, [14], [32]

APPEARANCES:

L Nightingale of Nightingale Law for the appellant
I Munsie instructed by Ferrall and Co. Lawyers for the respondent

Introduction

The appellant and respondent were once in a relationship. It ended in April 2021. On 28 June 2021 the appellant filed an application for a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA), citing what she alleged was years of domestic abuse perpetrated by the respondent. The application was heard by a Magistrate at Caloundra on 29 October 2021. The appellant and respondent both gave evidence and were…

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 JSA v MPR

Details

AGLC: JSA v MPR [2022] QDC 111
Case: [2022] QDC 111
Decision Date: 20 May 2022

CaseChat Overview and Summary

The matter before the court was an appeal by the appellant against a decision of the Magistrates Court of Victoria. The appellant had applied for a domestic violence protection order under the Domestic and Family Violence Protection Act 2016 (Vic), which was dismissed by the Magistrate. The appellant challenged the dismissal on the grounds that the Magistrate failed to give adequate reasons for the decision and that the decision was unreasonable or plainly unjust. The respondent cross-appealed the decision to award costs of the application for a protection order, contending that the Magistrate failed to give adequate reasons for finding the application was malicious and vexatious, and that the decision was unreasonable or plainly unjust.

The court considered whether the Magistrate failed to give adequate reasons for dismissing the application for a protection order and whether the decision to dismiss the application was unreasonable or plainly unjust. The court also examined whether the Magistrate failed to give adequate reasons for finding the application was malicious and vexatious and whether the decision to award costs was unreasonable or plainly unjust. The court found that the Magistrate had given adequate reasons for dismissing the application and that the decision was not unreasonable or plainly unjust. The court also found that the Magistrate had given adequate reasons for finding the application was malicious and vexatious and that the decision to award costs was not unreasonable or plainly unjust.

The appeal was dismissed, and the decision of the Magistrate to dismiss the application and to award costs fixed in the sum of $9,362.30 to the respondent was confirmed. The respondent was required to file and serve upon the appellant any written submissions as to the costs of the appeal, not to exceed five pages, on or before 3 June 2022. The appellant was required to file and serve upon the respondent any written submissions as to the costs of the appeal, not to exceed five pages, on or before 10 June 2022. Each party had leave to file and serve on or before 17 June 2022 any application for leave to make oral submissions as to the costs of the appeal. In the event written submissions as to costs were filed by any party, and in the absence of any application to make oral submissions, the court would decide the costs of the appeal on the written submissions and without oral hearing.

Orders

Orders of the court

1. The appeal is dismissed.

2. The decision of the Magistrate to dismiss the application and to award costs fixed in the sum of $9,362.30 to the respondent is confirmed.

3. The respondent file and serve upon the appellant on or before 3 June 2022 any written submissions as to the costs of the appeal, such submissions not to exceed five pages.

4. The appellant file and serve upon the respondent on or before 10 June 2022 any written submissions as to the costs of the appeal, such submissions not to exceed five pages.

5. Each party has leave to file and serve on or before 17 June 2022 any application for leave to make oral submissions as to the costs of the appeal.

6. In the event written submissions as to costs are filed by any party, and in the absence of any application to make oral submissions, I will decide the costs of the appeal on the written submissions and without oral hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It was admitted in this case that a “relevant relationship” existed. “Domestic violence” is widely defined in Part 2, Division 2 of the DFVPA. In deciding whether a protection order was necessary or desirable, the Magistrate was required to have regard to the principles in section 4 of the DFVPA. One other provision of the DFVPA should be mentioned. Section 145 provides that a court hearing an application for a protection order is not bound by the “rules of evidence” or “any practices or procedures applying to courts of record”. As well, the court need only be satisfied of a matter on the balance of probabilities.The decision of the Magistrate On 19 November 2021 the Magistrate gave reasons about why she did not intend to make a protection order. These reasons may be summarised as follows. The parties each conceded that there was a relevant relationship between the parties. The appropriate statutory test for the making of a protection order was identified. The Magistrate correctly identified that while the strict rules of evidence did not apply, it was still necessary for there to be sufficient material before the court to permit, as rational conclusions, the findings necessary to make a protection order. The allegations of the appellant as to acts of domestic violence were dealt with by the Magistrate under several headings. First the Magistrate dealt with allegations of verbal abuse. The Magistrate found the appellant’s claim that the respondent verbally abused her each time he was drunk was not made out. The Magistrate cited a lack of detail of the allegations and noted the claim was not pursued at the hearing. The Magistrate did accept that during an argument on the day the relationship ended in April 2021, the respondent swore at the appellant and insulted her. The Magistrate found this was an act of domestic violence. Reference was made to an allegation of verbal abuse, including a physical threat, on an occasion when the appellant and respondent were riding a motorcycle together. The Magistrate thought it was more likely than not that this occurred and that it amounted to domestic violence. These were the only two acts of domestic violence that the Magistrate was satisfied had occurred. The Magistrate was not satisfied that the respondent coerced the appellant to accept a disadvantageous child support arrangement with her former partner. She found that as the appellant’s then partner, the respondent had no reason to persuade her to accept an arrangement that was not to her advantage. Nor was the Magistrate satisfied that the respondent had come between the appellant and her children, noting that the respondent loaned money to and communicated cordially with the appellant’s young adult daughter. The appellant relied upon recordings of two conversations involving the respondent. The Magistrate accepted they were arguments about parenting issues, but thought the respondent appeared relatively calm as he spoke. One recording showed the appellant following the respondent to his car as he tried to leave to prevent him from departing. The Magistrate did not think the recordings assisted the appellant’s case.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

JSA v MPR [2022] QDC 111

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

HBY v WBI & Anor
[2020] QDC 81 Para 5

…It is convenient to begin with a consideration of the nature of the appeal. Such was considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below. [16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal is…
R v A2; R v Magennis; R v Vaziri
[2019] HCATrans 122 Para 5

…is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning t…
HZA v ZHA
[2018] QDC 125 Para 13

…the appeal. To dispose of the appeal and make provision for argument about costs, should it be necessary, I make the following orders. [17] HZA v ZHA [2018] QDC 125. [18] Uniform Civil Procedure Rules 1999 (Qld), rule 681. 1. The appeal is dismissed. 2. The decisions of the Magistrate to dismiss the application a…
NBE v PRT & Anor
[2018] QDC 29 Para 5

…xperience domestic violence” in approaching the Court but also not leaving the door open to manifestly groundless or mischievous proceedings. [14][2018] QDC 29, [14].…
Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors
[2016] QChC 16 Para 5

…ring: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate cou…
Kav v Magistrate Bentley
[2016] QSC 46 Para 10

…The Magistrate was referred to and considered NBE v PRT & Anor . She was also referred to KAV v Magistrate Bentley & Anor [2016] QSC 46. KAV is of no assistance in this appeal. It was an application to the Supreme Court for the judicial review of a decision to refuse an application to withdraw an application und…
GKE v EUT
[2014] QDC 248 Para 5

…e court upon an appeal shall be final and conclusive.” [18] An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be e…
FY v Department of Child Safety
[2009] QCA 67 Para 5

…scretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of…
Fox v Percy
[2003] HCA 22 Para 5

…ore the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to…
Ratten v The Queen
[1974] HCA 35 Para 5

…ply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or experience domestic…
Briginshaw v Briginshaw
[1938] HCA 36

…Act 1954 (Qld), s 38 Domestic and Family Violence Protection Act 2012 (Qld), s 37, 145, s 157, s 165, s 168, s 169, s 184 CASES: Briginshaw v Briginshaw (1938) 60 CLR 336, 362 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, [57]-[59] HBY v WBI & Anor [2020] QDC 81, [16]-[18] HZA v ZHA [2018] QDC 125 KAV v Magistrate Bentle…
Briginshaw v Briginshaw
[1938] HCA 34 Para 3

…But in my view the evidence set out above was sufficiently clear and cogent to permit the Magistrate’s conclusion. [12]DFVPA, section 145. [13](1938) 60 CLR 336.…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24 Para 18

…determination and the function to be served by the giving of reasons.[5] [5] Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, [57]-[59], citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Housing Commission of New South Wales v Tatmar Pastoral Company Pty Ltd [1983] 3 NSWLR 247.…

Legislation cited in this decision · 3

Domestic and Family Violence Protection Act 2012 (Qld)
145, 37 3 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
38 2 mentions (from Para 2)
Uniform Civil Procedure Rules 1999 (Qld)
1 mention (from Para 13)

CITATION:	JSA v MPR [2022] QDC 111
PARTIES:	JSA (appellant)
v
MPR (respondent)
FILE NO:	2/22
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court Caloundra
DELIVERED ON:	20 May 2022
DELIVERED AT:	Maroochydore
HEARING DATE:	10 May 2022
HEARD AT:	Maroochydore
JUDGE:	Cash QC DCJ
ORDER:	1. The appeal is dismissed. 2. The decision of the Magistrate to dismiss the application and to award costs fixed in the sum of $9,362.30 to the respondent is confirmed. 3. The respondent file and serve upon the appellant on or before 3 June 2022 any written submissions as to the costs of the appeal, such submissions not to exceed five pages. 4. The appellant file and serve upon the respondent on or before 10 June 2022 any written submissions as to the costs of the appeal, such submissions not to exceed five pages. 5. Each party has leave to file and serve on or before 17 June 2022 any application for leave to make oral submissions as to the costs of the appeal. 6. In the event written submissions as to costs are filed by any party, and in the absence of any application to make oral submissions, I will decide the costs of the appeal on the written submissions and without oral hearing.
CATCHWORDS	FAMILY LAW – DOMESTIC VIOLENCE – APPLICATION FOR A PROTECTION ORDER UNDER THE DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT – APPEAL – where appellant brought an application for a protection order – where matter heard and dismissed – whether the Magistrate failed to give adequate reasons for the decision – whether the decision to dismiss the application was unreasonable or plainly unjust – discretion to award costs of the application for a protection order – whether Magistrate failed to give adequate reasons for finding the application was malicious and vexatious – whether the decision to award costs was unreasonable or plainly unjust
LEGISLATION:	Acts Interpretation Act 1954 (Qld), s 38 Domestic and Family Violence Protection Act 2012 (Qld), s 37, 145, s 157, s 165, s 168, s 169, s 184
CASES:	Briginshaw v Briginshaw (1938) 60 CLR 336, 362 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, [57]-[59] HBY v WBI & Anor [2020] QDC 81, [16]-[18] HZA v ZHA [2018] QDC 125 KAV v Magistrate Bentley & Anor [2016] QSC 46 NBE v PRT & Anor [2018] QDC 29, [14], [32]
APPEARANCES:	L Nightingale of Nightingale Law for the appellant I Munsie instructed by Ferrall and Co. Lawyers for the respondent