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LKF v MRR

LKF v MRR

Case [2012] QDC 355 7 December 2012

Appeal

Procedural Fairness

Bias

Admissibility of Evidence

Costs

Family Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

LKF v MRR [2012] QDC 355

PARTIES:

LKF
(Appellant)

v

MRR
(Respondent)

FILE NO:

D135/2011

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Noosa

DELIVERED ON:

7 December 2012

DELIVERED AT:

Maroochydore

HEARING DATE:

16 November 2011

JUDGE:

Long SC, DCJ

ORDER:

1.    The order of the Magistrates Court at Noosa made on 3 June 2011, is varied by deleting the amount of $24,550 and replacing it with the amount of $9,150.

2.    The Registrar of the Magistrates Court at Noosa is directed to pay out, from the monies paid into that court:

(a)   The amount of $9,150, to the respondent; and

(b)     The amount of $15,400, to the appellant.

CASES:

Bell v Bay-Jespersen [2004] 2 Qd R 235.

Bottoms v Rogers (2006) 27 QLR 43.

Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204.

Coulter v Ryan [2007] 2 Qd R 302.

Durrant v Gardner [2000] QDC 198.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

Fox v Percy (2003) 214 CLR 118.

HMG v BRC [2010] QDC 485.

Mbuzi v Torcetti [2008] QCA 231.

Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181.

Mudie v Gainriver Pty Ltd & Anor [2003] 2 Qd R 271.

Mulholland v Mitchell [1971] 1 All ER 307.

Rowe v Kemper [2008] QCA 175.

Smith v Ash [2010] QCA 112.

Tamawood Limited v Paans (2005) 2 Qd R 101.

Teelow v Commissioner of Police [2009] QCA 84.

W v D [2008] QDC 110.

Webb and Hay v R (1994) 181 CLR 41.

LEGISLATION:

Domestic and Family Violence Protection Act 1989 (“DFVPA”), s 12A(2) s 20(1), s 42, s 65(1), s 66, s 84(2).

Justices Act 1886, ss 157, 158, s 158B, s 159, s 160.

Justices Regulation 2004, Sch 2, item 1, 2 and 3.

CATCHWORDS:

APPEAL – PROCEDUAL FAIRNESS - Domestic Violence – Where the appellant applied to the Magistrates court for a protection order – Where the appellant had succeeded in adjourning the hearing of the matter on two previous occasions – Where the appellant appeared at the hearing of the matter unprepared and without any witnesses present – Where on the continuation of the matter, the appellant did not appear - Whether the Magistrate erred in dismissing the application - Where the respondent had appeared on all occasions, legally represented and in a position to have the matter heard -Whether the appellant established that she was being intimidated or harassed by the respondent through correspondence and conduct relating to changeovers and contact in respect of their child.

APPEAL– BIAS – APPREHENSION OF BIAS –– Whether the Magistrate was or appeared to be biased in hearing the matter– Where the appellant had succeeded in adjourning the hearing of the matter on two previous occasions – Where the appellant appeared at the hearing of the matter without any witnesses to be cross-examined…

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 LKF v MRR

Details

AGLC: LKF v MRR [2012] QDC 355
Case: [2012] QDC 355
Decision Date: 7 December 2012

CaseChat Overview and Summary

In the case of LKF v MRR, the appellant, LKF, appealed against the decision of the Magistrates Court at Noosa which dismissed her application for a protection order under the Domestic and Family Violence Protection Act 2008 (QF). LKF claimed that MRR was intimidating and harassing her through correspondence and conduct relating to changeovers and contact in respect of their child. The appeal focused on the procedural fairness of the Magistrates Court, the potential bias of the Magistrate, the admissibility of further evidence, and the costs order made by the Magistrate.

The legal issues in the case included whether the Magistrate erred in dismissing LKF's application for a protection order. This hinged on whether LKF had appeared unprepared at the hearing, without any witnesses to be cross-examined, and whether LKF had established the requisite intimidation or harassment by MRR. Another issue was whether the Magistrate was biased in hearing the matter, given LKF's previous successful adjournments and her failure to appear at the hearing. The court also considered whether the Magistrate erred in refusing to admit further evidence and in making a costs order on an indemnity basis under section 61 of the Domestic and Family Violence Protection Act 1989 (QF).

The Court of Appeal held that the Magistrate did not err in dismissing LKF's application for a protection order, finding that LKF had not established that she was being intimidated or harassed by MRR. The Court found no evidence of bias in the Magistrate's handling of the case. Regarding the admission of further evidence, the Court held that the Magistrate did not err in refusing to admit the correspondence as it did not contain further evidence of intimidation and harassment by MRR. Finally, the Court found that the Magistrate erred in making a costs order on an indemnity basis, as the preconditions for such an order were not satisfied. The costs order was varied to reflect the correct amount to be paid to the parties.

In conclusion, the Court of Appeal varied the costs order made by the Magistrates Court and directed the Registrar to pay the appropriate amounts to the parties.

Orders

Orders of the court

1. The order of the Magistrates Court at Noosa made on 3 June 2011, is varied by deleting the amount of $24,550 and replacing it with the amount of $9,150.

2. The Registrar of the Magistrates Court at Noosa is directed to pay out, from the monies paid into that court:

(a) The amount of $9,150, to the respondent; and

(b) The amount of $15,400, to the appellant.

Background

Background to the litigation

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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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Citations

LKF v MRR [2012] QDC 355

Most Recent Citation

Nbe v Prt [2018] QDC 29

Cases Citing This Decision

FLC v MRT [2021] QDC 264
Citation 1 (Para 8)

…unsel cited parts of the following passage in support of the proposition that subjective intention to intimidate is unnecessary:[12] [12] LKF v MRR [2012] QDC 355. [29]In particular, much of the appellant’s application depended upon proof of intimidation or harassment of her. Whilst those concepts are to be judge…
EVE v ETT [2021] QDC 161
Citation 2 (Para 39)

…4] citing D v G [2004] QDC 477 at [20]. [70]McGill DCJ, in a paper titled Domestic and Family Violence Protection Act 2012 at [4]. [71] LKF v MRR [2012] QDC 355 at [29].…
NBE v PRT & Anor [2018] QDC 29
Citation 3 (Para 1)

…erience domestic violence” in approaching the Court but also not leaving the door open to manifestly groundless or mischievous proceedings.[8] [7][2012] QDC 355. [8]Cf: Milmerran Shire Council v Smith & Anor (No 2) [2008] QPEC 113 at [10].…
MHH v Lan [2016] QMC 1
Citation 4

…worth (1988) 14 NSWLR 481 Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 GKE v EUT [2014] QDC 248 HMG v BRC [2010] QDC 485 LKF v MRR [2012] QDC 355 Lohe v Bird [2004] QSC 23 Mudie v Gainriver Pty Ltd (No 2) [2002] QCA 546 Re Cameron [1996] Qd R 218…

See all citing cases →

Cases Cited

Merrin v Commissioner of Police [2012] QCA 181
Citation 1 (Para 1)

…rties an opportunity to be heard as to the costs of the appeal, which and unlike the position before the Magistrate, is governed by the UCPR[69]. [68][2012] QCA 181. [69]See s65(1) of the DFVPA…
HMG v BRC [2010] QDC 485
Citation 2 (Para 1)

…conclusion that there was “a strict limitation on the power…. and the conditions for the application of that power [had] not been met.”[51] [50][2010] QDC 485. [51]Ibid at [62].…
Smith v Ash [2010] QCA 112
Citation 3 (Para 1)

…re of such an order made as part of an order finalising a proceeding on a complaint.[57] [57]See Coulter v Ryan [2007] 2 Qd R 302 and cf: Smith v Ash [2010] QCA 112.…
Teelow v Commissioner of Police [2009] QCA 84
Citation 4

…] 1 All ER 307. Rowe v Kemper [2008] QCA 175. Smith v Ash [2010] QCA 112. Tamawood Limited v Paans (2005) 2 Qd R 101. Teelow v Commissioner of Police [2009] QCA 84. W v D [2008] QDC 110. Webb and Hay v R (1994) 181 CLR 41. LEGISLATION: Domestic and Family Violence Protection Act 1989 (“ DFVPA ”), s 12A(2) s 20(1…
Mbuzi v Torcetti [2008] QCA 231
Citation 5 (Para 1)

…hat the Magistrate had in making that decision[7]. [6][2004] 2 Qd R 235 at 240-1. [7]see Rowe v Kemper [2008] QCA 175 at [5] and Mbuzi v Torcetti [2008] QCA 231 at [17].…
Rowe v Kemper [2008] QCA 175
Citation 6 (Para 1)

…decision that was made and any advantage that the Magistrate had in making that decision[7]. [6][2004] 2 Qd R 235 at 240-1. [7]see Rowe v Kemper [2008] QCA 175 at [5] and Mbuzi v Torcetti [2008] QCA 231 at [17].…
W v. D [2008] QDC 110
Citation 7

…v Kemper [2008] QCA 175. Smith v Ash [2010] QCA 112. Tamawood Limited v Paans (2005) 2 Qd R 101. Teelow v Commissioner of Police [2009] QCA 84. W v D [2008] QDC 110. Webb and Hay v R (1994) 181 CLR 41. LEGISLATION: Domestic and Family Violence Protection Act 1989 (“ DFVPA ”), s 12A(2) s 20(1), s 42, s 65(1), s 66…
BBB v RAB [2006] QDC 80
Citation 8 (Para 1)

…tion of these concepts in this legislative context, by McGill DCJ in Bottoms v Rogers[13] and specifically the conclusions that: [13](2006)27 QLR 43; [2006] QDC 80.…
Tamawood Ltd v Paans [2005] QCA 111
Citation 9

…ie v Gainriver Pty Ltd & Anor [2003] 2 Qd R 271. Mulholland v Mitchell [1971] 1 All ER 307. Rowe v Kemper [2008] QCA 175. Smith v Ash [2010] QCA 112. Tamawood Limited v Paans (2005) 2 Qd R 101. Teelow v Commissioner of Police [2009] QCA 84. W v D [2008] QDC 110. Webb and Hay v R (1994) 181 CLR 41. LEGISLATION: Domestic and Family…
Fox v Percy [2003] HCA 22
Citation 10

…Ltd [1989] 2 Qd R 204. Coulter v Ryan [2007] 2 Qd R 302. Durrant v Gardner [2000] QDC 198. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Fox v Percy (2003) 214 CLR 118. HMG v BRC [2010] QDC 485. Mbuzi v Torcetti [2008] QCA 231. Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012…
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Citation 11 (Para 1)

…parent and the appellant conceded that the assertions she sought to prove were not clearly discernable from replaying the recording.[34] [33]CF Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Webb and Hay v R (1994) 181 CLR 41 [34]See the appellant’s outline in summary of her submissions, filed on 23 September 2011, at [36].…
Durrant v Gardner [2000] QDC 198
Citation 12 (Para 1)

…cretion to award an amount exceeding the scale amount, the proper exercise of that discretion requires regard to be had to the scale as a guide. [66] [2000] QDC 198 at [46].…
Webb v the Queen [1994] HCA 30
Citation 13 (Para 1)

…re not clearly discernable from replaying the recording.[34] [33]CF Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Webb and Hay v R (1994) 181 CLR 41 [34]See the appellant’s outline in summary of her submissions, filed on 23 September 2011, at [36].…
Knight v FP Special Assets Ltd [1992] HCA 28
Citation 14

…f a court or tribunal to award costs to a party is “now the creature of statute”, citing, among authorities, Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 193: at 110 [23]. As further expressed, the nature and extent of that power can only be discerned by a close consideration of the terms of the statute which…
Warren v Coombes [1979] HCA 9
Citation 15

…nferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on app…
Dey v Victorian Railways Commissioners [1949] HCA 1
Citation 16

…triking out of an action on the ground that it was frivolous and vexatious are entirely irrelevant. Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 said: ‘The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for ground…
[1935] AC 243 [1935] AC 243
Citation 17

…ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo : see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is a…

Legislation Cited

Justices Act 1886 (Qld) 157, 158
3 mentions (from Para 1)
Domestic and Family Violence Protection Act 1989 (Qld) 12A(2)
2 mentions (from Para 1)
Justice Act 1886 (Qld)
1 mention
Uniform Civil Procedure Rules 1999 (Qld)
1 mention

CITATION:	*LKF v MRR* [2012] QDC 355
PARTIES:	LKF (Appellant) v MRR (Respondent)
FILE NO:	D135/2011
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Noosa
DELIVERED ON:	7 December 2012
DELIVERED AT:	Maroochydore
HEARING DATE:	16 November 2011
JUDGE:	Long SC, DCJ
ORDER:	1. The order of the Magistrates Court at Noosa made on 3 June 2011, is varied by deleting the amount of $24,550 and replacing it with the amount of $9,150. 2. The Registrar of the Magistrates Court at Noosa is directed to pay out, from the monies paid into that court: (a) The amount of $9,150, to the respondent; and (b) The amount of $15,400, to the appellant.
CASES:	Bell v Bay-Jespersen [2004] 2 Qd R 235. Bottoms v Rogers (2006) 27 QLR 43. Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204. Coulter v Ryan [2007] 2 Qd R 302. Durrant v Gardner [2000] QDC 198. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Fox v Percy (2003) 214 CLR 118. HMG v BRC [2010] QDC 485. Mbuzi v Torcetti [2008] QCA 231. Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181. Mudie v Gainriver Pty Ltd & Anor [2003] 2 Qd R 271. Mulholland v Mitchell [1971] 1 All ER 307. Rowe v Kemper [2008] QCA 175. Smith v Ash [2010] QCA 112. Tamawood Limited v Paans (2005) 2 Qd R 101. Teelow v Commissioner of Police [2009] QCA 84. W v D [2008] QDC 110. Webb and Hay v R (1994) 181 CLR 41.
LEGISLATION:	Domestic and Family Violence Protection Act 1989 (“DFVPA”), s 12A(2) s 20(1), s 42, s 65(1), s 66, s 84(2). Justices Act 1886, ss 157, 158, s 158B, s 159, s 160. Justices Regulation 2004, Sch 2, item 1, 2 and 3.
CATCHWORDS:	APPEAL – PROCEDUAL FAIRNESS - Domestic Violence – Where the appellant applied to the Magistrates court for a protection order – Where the appellant had succeeded in adjourning the hearing of the matter on two previous occasions – Where the appellant appeared at the hearing of the matter unprepared and without any witnesses present – Where on the continuation of the matter, the appellant did not appear - Whether the Magistrate erred in dismissing the application - Where the respondent had appeared on all occasions, legally represented and in a position to have the matter heard -Whether the appellant established that she was being intimidated or harassed by the respondent through correspondence and conduct relating to changeovers and contact in respect of their child. APPEAL– BIAS – APPREHENSION OF BIAS –– Whether the Magistrate was or appeared to be biased in hearing the matter– Where the appellant had succeeded in adjourning the hearing of the matter on two previous occasions – Where the appellant appeared at the hearing of the matter without any witnesses to be cross-examined…