Kav v Magistrate Bentley - [2016] QSC 46

SUPREME COURT OF QUEENSLAND

CITATION:

KAV v Magistrate Bentley & Anor [2016] QSC 46

PARTIES:

KAV

(Applicant)

v
MAGISTRATE BENTLEY

(First Respondent)
and
ALV
(Second Respondent)

FILE NO/S:

SC No 513 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

11 March 2016

DELIVERED AT:

Cairns

HEARING DATE:

26 February 2016

JUDGE:

Henry J

ORDERS:

1.       It is declared the applicant’s application for a protection order was withdrawn on 15 October 2015.

2.       All orders of the Magistrates Court made in this matter on 15 October 2015 and subsequently are set aside.

3.       Failing notice in writing by 4 pm on 29 March 2016 to the Registrar by the parties to the effect they have agreed as to costs, I will hear the parties as to costs at 10 am on 1 April 2016.

CATCHWORDS:

MAGISTRATES - APPEAL AND REVIEW - QUEENSLAND - ORDERS TO REVIEW - THE ORDER TO REVIEW - APPLICATION – where the applicant seeks a statutory order of review of a decision to prevent the withdrawal of her application for a protection order and the decision to order costs against her – where the reviewable matter was the decision to prevent the withdrawal of the application – whether the applicant is entitled to seek a review under another law so that the application ought to be dismissed pursuant to s 13 Judicial Review Act 1991 (Qld)

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DISCONTINUANCE AND WITHDRAWAL – where the applicant sought to orally withdraw her application for a protection order prior to hearing – where the applicant’s withdrawal was voluntary and not made under duress – whether Rule 50(a) of the Domestic and Family Violence Protection Rules confers an unqualified right upon an applicant for a protection order to withdraw the application orally during proceedings in the Domestic and Family Violence Protection Court before the court decides the application – whether the Magistrate erred in refusing to allow the applicant to withdraw her application before the hearing

Domestic and Family Violence Protection Act 2012 (Qld) s 8(1)(a), s 8(1)(a)(2), s 12, s 142, s 157, s 164
Domestic and Family Violence Protection Rules (Qld) r 50
Judicial Review Act 1991 (Qld) s 13

Boal Quay v Kings Lynn Conservancy Board [1971] 1 WLR 1558; [1971] 3 All ER 597, cited
Fuller v Toms & Ors [2010] QCA 283, cited
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, cited
R v Jell, ex parte Attorney-General [1991] 1 Qd R 48, cited

Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412, cited

COUNSEL:

G Lynham for the Applicant

R Griffith for the Second Respondent

SOLICITORS:

O’Reilly Stevens Lawyers for the Applicant

Miller Harris for the Second Respondent[1]

[1]     No appearance was entered for the first respondent (there was evidence of service). The court was advised by an email from Crown Law after my decision was reserved advising, as had in…

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 Kav v Magistrate Bentley

Details

AGLC: Kav v Magistrate Bentley [2016] QSC 46
Case: [2016] QSC 46
Decision Date: 11 March 2016

CaseChat Overview and Summary

The applicant in this case sought an order of review concerning a decision made by a magistrate to prevent the withdrawal of her application for a protection order and to order costs against her. The matter was heard in the Queensland Court of Appeal. The applicant argued that the magistrate erred in refusing to allow her to withdraw her application before the hearing and that the rules of the court did not confer an unqualified right upon an applicant to withdraw their application orally during proceedings in the Domestic and Family Violence Protection Court before the court decides the application.

The court was required to determine whether the applicant was entitled to seek a review of the decision under another law and whether the magistrate erred in refusing to allow the applicant to withdraw her application before the hearing. The court also had to consider whether Rule 50(a) of the Domestic and Family Violence Protection Rules confers an unqualified right upon an applicant for a protection order to withdraw the application orally during proceedings in the Domestic and Family Violence Protection Court before the court decides the application.

The court found that the applicant was not entitled to seek a review of the decision under another law and that the application ought to be dismissed pursuant to s 13 Judicial Review Act 1991 (Qld). The court also found that Rule 50(a) of the Domestic and Family Violence Protection Rules does not confer an unqualified right upon an applicant for a protection order to withdraw the application orally during proceedings in the Domestic and Family Violence Protection Court before the court decides the application. Therefore, the court dismissed the application for review.

The court declared that the applicant's application for a protection order was withdrawn on 15 October 2015. All orders of the Magistrates Court made in this matter on 15 October 2015 and subsequently were set aside. The court also ordered that if the parties did not agree on costs by 4 pm on 29 March 2016, the matter would be heard as to costs on 1 April 2016.

Orders

Orders of the court

1. It is declared the applicant’s application for a protection order was withdrawn on 15 October 2015.

2. All orders of the Magistrates Court made in this matter on 15 October 2015 and subsequently are set aside.

3. Failing notice in writing by 4 pm on 29 March 2016 to the Registrar by the parties to the effect they have agreed as to costs, I will hear the parties as to costs at 10 am on 1 April 2016.

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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CITATION:	KAV v Magistrate Bentley & Anor [2016] QSC 46
PARTIES:	KAV (Applicant) v MAGISTRATE BENTLEY (First Respondent) and ALV (Second Respondent)
FILE NO/S:	SC No 513 of 2015
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	11 March 2016
DELIVERED AT:	Cairns
HEARING DATE:	26 February 2016
JUDGE:	Henry J
ORDERS:	1. It is declared the applicant’s application for a protection order was withdrawn on 15 October 2015. 2. All orders of the Magistrates Court made in this matter on 15 October 2015 and subsequently are set aside. 3. Failing notice in writing by 4 pm on 29 March 2016 to the Registrar by the parties to the effect they have agreed as to costs, I will hear the parties as to costs at 10 am on 1 April 2016.
CATCHWORDS:	MAGISTRATES - APPEAL AND REVIEW - QUEENSLAND - ORDERS TO REVIEW - THE ORDER TO REVIEW - APPLICATION – where the applicant seeks a statutory order of review of a decision to prevent the withdrawal of her application for a protection order and the decision to order costs against her – where the reviewable matter was the decision to prevent the withdrawal of the application – whether the applicant is entitled to seek a review under another law so that the application ought to be dismissed pursuant to s 13 Judicial Review Act 1991 (Qld) PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DISCONTINUANCE AND WITHDRAWAL – where the applicant sought to orally withdraw her application for a protection order prior to hearing – where the applicant’s withdrawal was voluntary and not made under duress – whether Rule 50(a) of the Domestic and Family Violence Protection Rules confers an unqualified right upon an applicant for a protection order to withdraw the application orally during proceedings in the Domestic and Family Violence Protection Court before the court decides the application – whether the Magistrate erred in refusing to allow the applicant to withdraw her application before the hearing Domestic and Family Violence Protection Act 2012 (Qld) s 8(1)(a), s 8(1)(a)(2), s 12, s 142, s 157, s 164 Domestic and Family Violence Protection Rules (Qld) r 50 Judicial Review Act 1991 (Qld) s 13 Boal Quay v Kings Lynn Conservancy Board [1971] 1 WLR 1558; [1971] 3 All ER 597, cited Fuller v Toms & Ors [2010] QCA 283, cited Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, cited R v Jell, ex parte Attorney-General [1991] 1 Qd R 48, cited Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412, cited
COUNSEL:	G Lynham for the Applicant R Griffith for the Second Respondent
SOLICITORS:	O’Reilly Stevens Lawyers for the Applicant Miller Harris for the Second Respondent[1]