Lbu v QPS - [2020] QDC 279

DISTRICT COURT OF QUEENSLAND

CITATION:

LBU v QPS & anor [2020] QDC 279

PARTIES:

LBU

(Appellant)

v

QUEENSLAND POLICE SERVICE & another

(Respondent)

FILE NO/S:

3164 of 2019

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

24 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

17 February 2020

JUDGE:

Rinaudo AM DCJ

ORDER:

(1) Application for leave to extend the time for the bringing of an appeal of the decision of the learned Magistrate to make a Temporary Protection Order on 23 January 2019 refused

(2) Application to strike out the Temporary Protection Order dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the appellant’s notice of appeal was filed some eight months after the allowed timeframe – where the appellant was self-represented – whether leave should be granted to extend time for the bringing of an appeal of the decision of the magistrate

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where learned magistrate made a temporary protection order – where appellant states the police protection notice was deficient and therefore invalid

Domestic and Family Violence Protection Act2012 (Qld)
DMK v CAG [2016] QDC 106, cited
du Boulay v Worrell & Ors [2009] QCA 63, cited
Edwards v Noble (1971) 125 CLR 296, cited
FCA v Commissioner of the Queensland Police Service [2014] QDC 46, cited
House v The King (1936) 55 CLR 449, cited

NBE v PRT & Anor [2018] QDC 29, cited

COUNSEL:

LBU for the appellant (Self-represented)

I Fraser for the respondent

SOLICITORS:

QPS Solicitors Office for the respondent

This is an appeal by the Appellant, LBU, for an extension of time within which to bring an appeal, and for the setting aside of a Temporary Protection Order made by the Brisbane Magistrates Court on 23 January 2019.

In this appeal, this Court must determine if the appeal should be allowed out of time, and if so, whether the Temporary Protection Order should be set aside.

Appeals

Section 168 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) provides that the appeal is to be decided on the evidence and proceedings before the court that made the original decision; however, the appellate court can order that the appeal be heard afresh.

As noted by the Respondent,[1] to succeed, the Appellant must demonstrate some legal, factual or discretionary error of the trial magistrate.[2] As submitted by the Respondent, “the question is not whether the appellate court may have itself made a different finding, but is, rather, whether the finding made by the trial judge was reasonably open on the evidence before them”.[3]
[1]Outline of Submissions on Behalf of the First Respondent [9].
[2]MDE v MLG & Queensland Police Service [2015] QDC 151.
[3] Outline of Submissions on Behalf of the First Respondent [9]; Edwards v Noble (1971) 125 CLR 296, 304. See…

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 Lbu v QPS

Details

AGLC: Lbu v QPS [2020] QDC 279
Case: [2020] QDC 279
Decision Date: 24 February 2020

CaseChat Overview and Summary

The appellant, Lbu, was seeking to appeal a decision made by the learned magistrate in Queensland, who had issued a Temporary Protection Order (TPO) against them on 23 January 2019. The appellant claimed that the underlying police protection notice was deficient and therefore invalid. The appellant, who was self-represented, filed their notice of appeal eight months after the allowed timeframe, prompting the respondent, QPS, to apply to have the appeal dismissed on the grounds of lateness. The appellant, in turn, applied for leave to extend the time for bringing the appeal and to strike out the TPO. The court had to decide whether leave should be granted for the extension of time for the bringing of the appeal.

In assessing whether the appellant should be granted leave to extend the time for the bringing of an appeal, the court considered several factors. These included the length of the delay, the reason for the delay, the merits of the appeal, and whether the appellant had a bona fide prospect of success on the appeal. The court noted that the appellant had delayed eight months in filing their notice of appeal, which was a significant delay. The appellant argued that the delay was due to their self-representation and lack of legal knowledge, but the court found that this was not a sufficient explanation for the delay. The court also found that the appellant had a reasonable prospect of success on the appeal, as the validity of the police protection notice was a genuine issue. However, the court ultimately determined that the delay was unreasonable and that the appellant had not provided a sufficient explanation for the delay.

The court refused the appellant's application for leave to extend the time for the bringing of an appeal of the decision of the magistrate to make a TPO on 23 January 2019. The court found that the appellant's delay in filing the notice of appeal was unreasonable and that the appellant had not provided a sufficient explanation for the delay. The court also dismissed the appellant's application to strike out the TPO. The court found that the magistrate had followed the correct procedure in making the TPO and that the TPO was valid. The court emphasised the importance of timely filing of appeals and the need for appellants to provide a sufficient explanation for any delay in filing.

The final orders of the court were that the application for leave to extend the time for the bringing of an appeal of the decision of the learned Magistrate to make a TPO on 23 January 2019 was refused, and the application to strike out the TPO was dismissed. The court emphasised the importance of timely filing of appeals and the need for appellants to provide a sufficient explanation for any delay in filing. The court found that the magistrate had followed the correct procedure in making the TPO and that the TPO was valid.

Orders

Orders of the court

(1) Application for leave to extend the time for the bringing of an appeal of the decision of the learned Magistrate to make a Temporary Protection Order on 23 January 2019 refused

(2) Application to strike out the Temporary Protection Order dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	LBU v QPS & anor [2020] QDC 279
PARTIES:	LBU (Appellant) v QUEENSLAND POLICE SERVICE & another (Respondent)
FILE NO/S:	3164 of 2019
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	24 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	17 February 2020
JUDGE:	Rinaudo AM DCJ
ORDER:	(1) Application for leave to extend the time for the bringing of an appeal of the decision of the learned Magistrate to make a Temporary Protection Order on 23 January 2019 refused (2) Application to strike out the Temporary Protection Order dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the appellant’s notice of appeal was filed some eight months after the allowed timeframe – where the appellant was self-represented – whether leave should be granted to extend time for the bringing of an appeal of the decision of the magistrate MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where learned magistrate made a temporary protection order – where appellant states the police protection notice was deficient and therefore invalid Domestic and Family Violence Protection Act2012 (Qld) DMK v CAG [2016] QDC 106, cited du Boulay v Worrell & Ors [2009] QCA 63, cited Edwards v Noble (1971) 125 CLR 296, cited FCA v Commissioner of the Queensland Police Service [2014] QDC 46, cited House v The King (1936) 55 CLR 449, cited NBE v PRT & Anor [2018] QDC 29, cited
COUNSEL:	LBU for the appellant (Self-represented) I Fraser for the respondent
SOLICITORS:	QPS Solicitors Office for the respondent