Lap v HBY

[2021] QCA 122

COURT OF APPEAL

FRASER JA

Appeal No 2339 of 2021
DC No 4040 of 2018

LAP Applicant/Appellant

HBY First Respondent

WBI Second Respondent

BRISBANE

FRIDAY, 26 MARCH 2021

JUDGMENT

FRASER JA: The matter before me presents as an appeal – or an application for leave to appeal – from a decision made by the District Court, exercising its appellate jurisdiction to vary a decision made by a Magistrate in proceedings under the Domestic and Family Violence Protection Act2012. The respondents to the application or appeal submit that the Court does not have jurisdiction to hear the proposed appeal, and the proceeding should be struck out for want of jurisdiction. The same point was decided in favour of that submission in earlier proceedings between the same parties in WBI v HBY & Anor [2020] QCA 24. That case construed s 169(2) of the Domestic and Family Violence Protection Act2012 in a way which is consistent with the submission made by the respondents. That is to say, the statement in that subsection that the decision of the appellate Court upon an appeal shall be final and conclusive has the effect that the decision of the District Court upon an appeal from a decision of the Magistrate in the relevant proceeding under the Act is final and conclusive, including in the sense, that it is not amenable to appeal.

The decision in WBI v HBY referred to and approved previous decision of the Court of Appeal to the same effect. The applicant or appellant submits that it would be appropriate to adopt a different construction of s 169(2), particularly having regard to the fact that the construction adopted by this Court in previous decisions has the consequence that the appellant, and others in her position, have no right of appeal against a decision which, it is submitted, amounted to an egregious injustice, including by a denial of a fundamental right of a litigant to a fair hearing before an unbiased judicial officer.

The merits of the submission are not for me to decide. Taking the submission into account, however, it does not provide a basis for me not to follow a consistent line of decisions of this Court, including a decision made in a case involving the same parties, that there is no right of appeal. I mentioned during the hearing that it would be prudent for the appellant, who unfortunately is required to represent herself, to seek pro bono legal advice upon the question of whether she has any other remedy. My hands are tied by the course of authority and, I may say, by the statutory provision which I would in any event construe in the same way.

For that reason, I hold that the Court has no jurisdiction to hear the proposed appeal. I order that the proceeding be struck out. I will hear the parties on costs.

CaseChat Overview and Summary

The case of Lap v HBY involves an appeal from a decision made by the District Court, which was exercising its appellate jurisdiction in relation to a decision made by a Magistrate under the Domestic and Family Violence Protection Act 2012. The applicant/appellant, Lap, seeks to challenge the District Court’s decision, while the first respondent is HBY, and the second respondent is WBI. The central issue before the Court of Appeal was whether it had jurisdiction to hear the appeal from the District Court’s decision, which had already been held to be final and conclusive under section 169(2) of the Act.

The court needed to determine if there was a basis to deviate from the established interpretation of section 169(2) of the Act, as previously decided in WBI v HBY [2020] QCA 24. This earlier case, along with other consistent decisions by the Court of Appeal, had held that the District Court’s decision in such proceedings was not subject to further appeal. The appellant argued that the existing interpretation of the Act denied her a fundamental right to a fair hearing before an unbiased judicial officer and amounted to an egregious injustice. Despite the merits of this argument, the court found itself bound by the established authority and statutory language. The court acknowledged the appellant’s right to seek further legal advice on potential alternative remedies but could not alter its jurisdiction based on the current legal framework.

In light of the consistent interpretation of the statute and the binding precedent, the Court of Appeal held that it did not have jurisdiction to hear the appeal from the District Court’s decision. Consequently, the court ordered that the proceeding be struck out. The matter of costs between the parties will be addressed in a subsequent hearing.

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