LKL v BSL

[2015] QDC 337

DISTRICT COURT OF QUEENSLAND

CITATION:

LKL v BSL [2015] QDC 337

PARTIES:

LKL

(appellant)

v

BSL

(respondent)

FILE NO/S:

755/15

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Holland Park Magistrate’s Court 

DELIVERED ON:

15 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

28 January 2015

JUDGE:

Dick SC DCJ

ORDER:

The orders of the court are:

The appeal is upheld. 1.   

The application for a stay is dismissed. 2.   

The matter is remitted to the Magistrate’s Court to be presided over by a different Magistrate. 3.   

CATCHWORDS:

APPEAL – Domestic Violence – Application for protection order under the Domestic and Family Violence Act

FAMILY LAW – Domestic Violence –Application for protection order under the Domestic and Family Violence Act – Whether the application for the protection order is material which the Magistrate ought to consider in making the order

LEGISLATION:

Domestic and Family Violence Act 2012 (Qld)

CASES:

Daysea Pty Ltd v Whatpack Australia Pty ltd [2000] QDC 306.

DMO v RPD [2009] QDC 92.

Thurling v Medical Board of Queensland [2003] QCA 346

COUNSEL:

Mr D Nguyen, instructed by Australasia Law, for the appellant.

Mr A James, instructed by RA Solicitors, for the respondent.

Background

1. On Friday 17 October 2014 the appellant filed an application for a protection order at the Holland Park Magistrate’s Court. The application was signed by the appellant and witnessed as a statutory declaration.

1. On the basis of that application, a temporary protection order was made.

1. On 29 October 2014 the learned Magistrate made directions for the filing of affidavits and/or statements by the parties. The directions included: 

“(1)     that the evidence in chief of all witnesses shall, other than the original sworn application and otherwise ordered, be by way of affidavit.”

1. The matter was listed for hearing on 28 January 2015. On 23 January 2015 the appellant sought an adjournment; that application was refused but that refusal is not the subject of this appeal.

1. On 28 January 2015 Magistrate Strofield dismissed the application.

Grounds

1. The grounds of appeal are effectively that the Magistrate made an error in law in ruling that the appellant had produced no evidence nor material on which he could make a determination and that she was denied natural justice.

The events at the Magistrate’s Court at Holland Park on 28 January 2015

1. The appellant appeared unrepresented.  The respondent was legally represented.

Early, on the learned Magistrate said: “now LKL (sic) there’s no material”.[1]

[1]T1-2-L28.

The appellant replied that she had sought legal advice and that she had been advised she: “should just rely on my application”.

A little later the learned Magistrate said: “There was no objection to the temporary order continuing until the hearing, but here we are at the hearing date and there is no material LKL”.[2]

[2]T1-3-L30-32.

Later he said: “…you don’t have any material LKL before the Court”.[3]

[3]T1-3-L46.

The appellant replied: “I thought my application was the material.”

Bench: “Well that’s wrong I’m afraid”.[4]

Later this interchange occurred:

Bench: “LKL…