Kelly v Amundsen

[2012] QDC 201

DISTRICT COURT OF QUEENSLAND

CITATION:

Kelly v Amundsen & Anor [2012] QDC 201

PARTIES:

TRACIE ANNE KELLY
(Appellant)

AND

LENORE AMUNDSEN
(First Respondent)

AND

WARREN AMUNDSEN
(Second Respondent)

FILE NO/S:

1498/2012

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

18 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2012

JUDGE:

Samios DCJ

ORDER:

1.   Appeal allowed.

2.   Set aside the order made by the learned Magistrate on the 13th of April 2012.

3.   The respondents are to pay the appellant the costs of this appeal fixed in the sum of $1,800 to be paid to the Registrar within 21 days to be paid to the appellant.

CATCHWORDS:

JUSTICES - appeal from - dismissal of complaints - when to determine costs

Justices Act 1886 (Qld) ss149, 158, 159.

Peace and Good Behaviour Act 1982 (Qld) s8.

Besgrove v Larson [2001] QDC 144, followed.

Bell v Carter; ex-parte Bell (1992) QCA 245, followed.

HMG v BRC [2010] QDC 485

Turner v Randall; ex-parte Randall (1988) 1 QdR 726

COUNSEL:

Mr. Nelson appeared for the appellant.

Respondent did not appear in hearing.

SOLICITORS:

Martin Solicitors for the appellant.

1. The appellant brought two complaints against the respondents under the Peace and Good Behaviour Act.  These were filed in the Registry of the Holland Park Magistrates Court on 15 April 2011 and 23 May 2011.  The learned Magistrate gave directions on 29 September 2011 and again on 22 December 2011 and both complaints were listed for hearing on 1 and 2 February 2012. 

2. However, on 16 January 2012, the appellant gave notice to the Registry and I take it to the respondents, that she withdrew the complaints.  The matter came on before the learned Magistrate on 18 January 2012.  The appellant was not present and was not heard on that occasion.  That is because she had given notice that she withdrew the complaints. 

3. I should say at this stage that the complaints allege conduct on the part of the respondents to the effect that the female respondent told the male respondent to hose the appellant.  There was also an allegation that the female respondent threw large tree branches into her property.  The appellant alleged she was very concerned the female respondent would throw these branches at herself and her children, as a result of the hosing incident.  A second complaint has alleged similar conduct and a fear of injury and damage to property.

4. Returning to the course of events, as the file shows, the learned Magistrate did not record that the complaints were withdrawn but rather that the complaints were dismissed. 

5. In relation to costs, the learned Magistrate ordered that they be assessed on an indemnity basis.  I should say that the respondents were represented before the learned Magistrate on 18 January 2012.  Unfortunately there is no transcript available of what happened on that date except from what is on the Court file. 

6. The events then show that the respondents had costs assessed and on 28 February 2012, a cost certificate…