MAC v MMV - [2009] QDC 276

DISTRICT COURT OF QUEENSLAND

CITATION:

MAC v MMV [2009] QDC 276

PARTIES:

MAC

(Appellant)

AND

MMV

(Respondent)

FILE NO/S:

BD2744/08

DIVISION:

Application

PROCEEDING:

Appeal under s 63(1) Domestic and Family Violence Protection Act 1989

ORIGINATING COURT:

Magistrates Court, Sandgate

DELIVERED ON:

20 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17 April 2009 and 18 May 2009

JUDGE:

Irwin DCJ

ORDER:

Appeal allowed. The protection order made by the Magistrates Court at Sandgate on 30 September 2008 against the appellant set aside. In lieu thereof, order that the application for a protection order by the respondent against the appellant be dismissed.

CATCHWORDS:

FAMILY LAW – Domestic Violence – what amounts to intimidation or harassment

COURTS AND JUDGES – Bias – appellant appeared on own behalf in proceedings against him for a protection order – magistrate’s observations that appellant “clearly appears to be shopping around” for a temporary protection order – magistrate advised appellant before evidence was called that he would not be permitted to “harass” the aggrieved person by his cross-examination – magistrate’s decision included a statement about the appellant that he was “satisfied that it would be extremely difficult for a tiger to change his spots” – magistrate failed to remind the appellant of the requirement to observe the Rule in Browne v Dunn when cross-examining the aggrieved person – magistrate incorrectly finding that appellant had made some admissions that he may have hit his children – magistrate incorrectly finding that the appellant had just made a carte blanche denial that there was no proof and that the evidence of the aggrieved person and their daughter was uncontradicted – where magistrate found that the appellant committed intimidation or harassment and made a protection order in favour of the aggrieved person – whether reasonable apprehension of bias on behalf of the appellant

APPEAL – Admission of Fresh Evidence – whether there are special grounds to receive further evidence – whether special leave should be given – general – principles

EVIDENCE – Witness – civil proceeding – order of witnesses – whether aggrieved person able to call a person summonsed by the appellant as a witness – whether appellant able to recall the witness to give evidence during his case

Domestic and Family Violence Act 1989, ss 11(1), 20, 21(1), 65, 66(1), 84

Evidence Act 1977, s 21(1)

Uniform Civil Procedure Rules 1999 rr 766(1)(c) and (2), 783

Aronson, Dyer & Groves, Judicial Review of Administrative Action (2009) Chapter 9

Cross, On Evidence, Aust ed (17075)

Equal Treatment Bench Book, Supreme Court of Queensland 12.4, 12.4.4

Bottom v Rogers [2006] QDC 080, applied

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

Browne v Dunn (1893) 6 R 67, 70, 76, cited

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied

Dowse v Gorringe [2004] QDC 477, cited

Ebner v Official Trustee (2000) 205 CLR 337, applied

Harper v Police (unreported, WA Sup Ct, Walsh J, Dec 1990) cited

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 MAC v MMV

Details

AGLC: MAC v MMV [2009] QDC 276
Case: [2009] QDC 276
Decision Date: 20 May 2009

CaseChat Overview and Summary

The appeal in MAC v MMV was brought before the court concerning a dispute involving domestic violence and the issuance of a protection order. The appellant, who appeared pro se in proceedings against him for a protection order, contested the decision of the Magistrates Court at Sandgate which had found that he had committed intimidation or harassment and subsequently made a protection order in favour of the aggrieved person. The aggrieved person was the appellant's former partner, and the protection order was sought under the Family Law Act.

The primary legal issue before the court was whether there was a reasonable apprehension of bias on the part of the magistrate towards the appellant. The appellant contended that the magistrate's conduct during the proceedings, including observations that the appellant was "shopping around" for a temporary protection order, and statements that it would be "extremely difficult for a tiger to change his spots," demonstrated a biased mindset. Furthermore, the appellant argued that the magistrate failed to remind him of the requirement to observe the Rule in Browne v Dunn during cross-examination, and incorrectly interpreted his admissions and denials during the proceedings.

The court found that the magistrate's comments and conduct during the proceedings created a reasonable apprehension of bias on the part of the appellant. The magistrate's observations and statements, particularly in light of the appellant's pro se status, indicated a predisposition towards finding the appellant at fault. Additionally, the magistrate's failure to remind the appellant of the Rule in Browne v Dunn and misinterpretation of his admissions and denials further contributed to this apprehension of bias. As a result, the appeal was allowed, the protection order made by the Magistrates Court at Sandgate on 30 September 2008 against the appellant was set aside, and in lieu thereof, the application for a protection order by the respondent against the appellant was dismissed.

Orders

Orders of the court

Appeal allowed. The protection order made by the Magistrates Court at Sandgate on 30 September 2008 against the appellant set aside. In lieu thereof, order that the application for a protection order by the respondent against the appellant be dismissed.

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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CITATION:	MAC v MMV [2009] QDC 276
PARTIES:	MAC (Appellant) AND MMV (Respondent)
FILE NO/S:	BD2744/08
DIVISION:	Application
PROCEEDING:	Appeal under s 63(1) Domestic and Family Violence Protection Act 1989
ORIGINATING COURT:	Magistrates Court, Sandgate
DELIVERED ON:	20 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	17 April 2009 and 18 May 2009
JUDGE:	Irwin DCJ
ORDER:	Appeal allowed. The protection order made by the Magistrates Court at Sandgate on 30 September 2008 against the appellant set aside. In lieu thereof, order that the application for a protection order by the respondent against the appellant be dismissed.
CATCHWORDS:	FAMILY LAW – Domestic Violence – what amounts to intimidation or harassment COURTS AND JUDGES – Bias – appellant appeared on own behalf in proceedings against him for a protection order – magistrate’s observations that appellant “clearly appears to be shopping around” for a temporary protection order – magistrate advised appellant before evidence was called that he would not be permitted to “harass” the aggrieved person by his cross-examination – magistrate’s decision included a statement about the appellant that he was “satisfied that it would be extremely difficult for a tiger to change his spots” – magistrate failed to remind the appellant of the requirement to observe the Rule in Browne v Dunn when cross-examining the aggrieved person – magistrate incorrectly finding that appellant had made some admissions that he may have hit his children – magistrate incorrectly finding that the appellant had just made a carte blanche denial that there was no proof and that the evidence of the aggrieved person and their daughter was uncontradicted – where magistrate found that the appellant committed intimidation or harassment and made a protection order in favour of the aggrieved person – whether reasonable apprehension of bias on behalf of the appellant APPEAL – Admission of Fresh Evidence – whether there are special grounds to receive further evidence – whether special leave should be given – general – principles EVIDENCE – Witness – civil proceeding – order of witnesses – whether aggrieved person able to call a person summonsed by the appellant as a witness – whether appellant able to recall the witness to give evidence during his case Domestic and Family Violence Act 1989, ss 11(1), 20, 21(1), 65, 66(1), 84 Evidence Act 1977, s 21(1) Uniform Civil Procedure Rules 1999 rr 766(1)(c) and (2), 783 Aronson, Dyer & Groves, Judicial Review of Administrative Action (2009) Chapter 9 Cross, On Evidence, Aust ed (17075) Equal Treatment Bench Book, Supreme Court of Queensland 12.4, 12.4.4 Bottom v Rogers [2006] QDC 080, applied Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 Qd R 204, cited Browne v Dunn (1893) 6 R 67, 70, 76, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied Dowse v Gorringe [2004] QDC 477, cited Ebner v Official Trustee (2000) 205 CLR 337, applied Harper v Police (unreported, WA Sup Ct, Walsh J, Dec 1990) cited