DISTRICT COURT OF QUEENSLAND
CITATION: KNK v MAX [2023] QDC 123 PARTIES: KNK
(Appellant)
v MAX
(Respondent)
FILENO: 1957/2022 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Holland Park Magistrates Court DELIVEREDON: 25 July 2023 DELIVEREDAT: Brisbane HEARINGDATE: 16 June 2023 JUDGE: Byrne KC DCJ ORDER: 1. The application for leave to adduce further evidence is allowed.
2. Appeal allowed.
3. The order of the acting Magistrate made 20 July 2022 is set aside and the matter is remitted to the Holland Park Magistrates Court for re-hearing.
4. No order as to costs.
CATCHWORDS: MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – DOMESTIC AND FAMILY
VIOLENCE PROTECTION ACT - where the respondent applied for a protection order against the appellant – where the appellant did not file any material or attend the hearing through no fault of his – where the acting Magistrate granted a Protection Order in favour of the present respondent in the absence of any material from the appellant - where there was no error on the part of the acting Magistrate at the time of the hearing – where the issue of error is to be determined at the time of the appeal - whether the admission of the evidence is required to avoid a miscarriage of justice – whether there is a an error of such a nature as to allow the appeal where the fault is not that of the appellant.
LEGISLATION:
Acts Interpretation Act 1954 (QLD) s 14
Background
On 5 April 2022 the present respondent applied for a Protection Order under the Domestic and Family Violence Protection Act 2012 (“DFVP Act”) in the Holland Park Magistrates Court. That application was heard initially on 20 April 2022, at which time the acting Magistrate granted…
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- AGLC
- KNK v Max [2023] QDC 123
- Case
- [2023] QDC 123
- Decision Date
CaseChat Overview and Summary
The central legal issue the court had to address was whether the acting Magistrate erred in granting the Protection Order in the absence of any material from the appellant and whether this constituted a miscarriage of justice warranting the admission of further evidence or an allowance of the appeal. The court also had to consider whether the fault lay with the appellant, or if it was a procedural error that could be rectified through the appeal process.
The court found that while there was no error on the part of the acting Magistrate at the time of the hearing, the issue of error was to be determined at the time of the appeal. The court emphasised that the admission of evidence is required to avoid a miscarriage of justice and that an error of such a nature as to allow an appeal could exist even if the fault was not that of the appellant. Given the circumstances, the court determined that it was in the interests of justice to allow the application for leave to adduce further evidence and to set aside the order of the acting Magistrate. The appeal was allowed, and the matter was remitted to the Holland Park Magistrates Court for re-hearing.
The court concluded that there would be no order as to costs. This decision highlights the importance of procedural fairness in domestic and family violence protection order hearings and underscores the court's commitment to ensuring that all parties have an opportunity to present their case fully and fairly.
Orders
Orders of the court
1. The application for leave to adduce further evidence is allowed.
2. Appeal allowed.
3. The order of the acting Magistrate made 20 July 2022 is set aside and the matter is remitted to the Holland Park Magistrates Court for re-hearing.
4. No order as to costs.
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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