McQuinn v Dwyer - [2021] QDC 252

DISTRICT COURT OF QUEENSLAND

CITATION:

McQuinn v Dwyer [2021] QDC 252

PARTIES:

GRANT MCQUINN

(appellant)

v

DANIELLE DWYER

(respondent)

FILE NO:

59 of 2021

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Mareeba

DELIVERED ON:

30 July 2021 ex tempore

DELIVERED AT:

Cairns

HEARING DATE:

30 July 2021

JUDGE:

Fantin DCJ

ORDER:

1.   Leave granted to adduce new evidence.

2.   Appeal allowed.

3.   The Peace and Good Behaviour Order made on 15 March 2021 by the Magistrates Court at Mareeba is set aside.

4.   Remit the matter for rehearing to the Magistrates Court at Mareeba according to law.

CATCHWORDS:

PEACE AND GOOD BEHAVIOUR –appeal pursuant to s 222 Justices Act 1886 – where the appellant appeals against a peace and good behaviour order made against him pursuant to s 7 of the Peace and Good Behaviour Act 1982 – where the appellant seeks leave to adduce new evidence on appeal – whether the evidence sought to be adduced is relevant – whether the evidence might reasonably have led the learned Magistrate to make a different order - whether evidence led in the Magistrates Court supported the “matters of complaint” on the balance of probabilities – whether the Magistrate made adequate findings as to the “matters of the complaint” – whether the appellant was afforded procedural fairness at the hearing

LEGISLATION:

Justices Act 1886 (Qld), s 222, s 223(1), s 223(2)
Peace and Good Behaviour Act 1982 (Qld) s 5, s 7, s 9

CASES:

Briginshaw v Briginshaw [1938] 60 CLR 336
Gallagher v The Queen [1986] 169 CLR 392
Harvey v Walker [2016] QDC 180
Hughes v Talty & Anor [2015] QDC 145
Laidlaw v Hulett [1998] 2 Qd R 45
Pavlovic v Commissioner of Police [2007] 1 Qd R 344
Tolhurst v Villan [2018] QDC 263

COUNSEL:

The appellant appeared on his own behalf

SOLICITORS:
O’Reilly Stevens Lawyers for the respondent

FANTIN DCJ: This is an appeal from a decision of a Magistrate at Mareeba on 15 March 2021 to make an order under the Peace and Good Behaviour Act 1982 (Qld), (the Act). That date was the first return date for a complaint and summons filed by the respondent on 9 February 2021.
Magistrates Court decision
Both the appellant and the respondent appeared before the Magistrate self-represented. After hearing from each of them, the learned Magistrate made a Peace and Good Behaviour Order for a term of two years containing seven conditions. The conditions were as follows:

That the defendant keep the peace and be of good behaviour towards the complainant for a period of two years from this date.
The defendant must not:
1.Threaten to assault or do any bodily injury to the complainant or any person under the care or charge under the complainant;
2.Threaten to procure any other person to assault or to do any bodily injury to the complainant, or any person under the care or charge of the complainant; or
3.Threaten to damage any property of the…

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 McQuinn v Dwyer

Details

AGLC: McQuinn v Dwyer [2021] QDC 252
Case: [2021] QDC 252
Decision Date: 30 July 2021 ex tempore

CaseChat Overview and Summary

The case of McQuinn v Dwyer involved an appeal against a peace and good behaviour order made by the Magistrates Court at Mareeba. The appellant, McQuinn, challenged the order on multiple grounds, including the relevance of the evidence presented, the adequacy of the findings made by the Magistrate, and the procedural fairness afforded to him during the hearing. The respondent, Dwyer, opposed the application to adduce new evidence but did not object to the court considering the evidence for the purpose of the appeal.

The primary legal issues before the court were whether the new evidence was relevant and credible, and if it could reasonably have led the Magistrate to make a different order. The court considered the principles established in Pavlovic v Commissioner of Police and Gallagher v The Queen, which emphasise the need for special grounds to justify the departure from the rehearing rule in the Justices Act 1886. The court also examined whether the evidence led in the Magistrates Court supported the "matters of complaint" on the balance of probabilities and whether procedural fairness was observed.

The court found that the new evidence was relevant and credible and could reasonably have led to a different outcome. It was also determined that the Magistrate did not make adequate findings on the "matters of complaint," and the appellant was not afforded procedural fairness. Consequently, the court allowed the appeal, set aside the peace and good behaviour order, and remitted the matter to the Magistrates Court for a rehearing. The court granted leave to adduce new evidence and emphasised the importance of procedural fairness in future proceedings.

The final orders included granting leave to adduce new evidence, allowing the appeal, setting aside the peace and good behaviour order made on 15 March 2021, and remitting the matter for rehearing by the Magistrates Court at Mareeba according to law.

Orders

Orders of the court

1. Leave granted to adduce new evidence.

2. Appeal allowed.

3. The Peace and Good Behaviour Order made on 15 March 2021 by the Magistrates Court at Mareeba is set aside.

4. Remit the matter for rehearing to the Magistrates Court at Mareeba according to law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In summary, the appellant’s complaints can be grouped in the following way: he disputes the factual allegations in the complaint and summons made by the respondent on the basis that they are untrue; he says that he was denied procedural fairness and did not receive a fair explanation or fair hearing before the learned Magistrate. With respect to that second issue, he explains why he did certain things on that day. He says that he was not afforded the opportunity to respond to the factual allegations made by the respondent, nor to the proposed conditions of the order, and that he did not understand them at the time the Magistrate made the order; and finally, he says that the order will have a significant adverse impact on an application for residency that he has made or is making to the Department of Immigration, and that he was not aware of this consequence at the time he appeared in court on the 15th of March 2021.Application to adduce fresh evidence he disputes the factual allegations in the complaint and summons made by the respondent on the basis that they are untrue; he says that he was denied procedural fairness and did not receive a fair explanation or fair hearing before the learned Magistrate. With respect to that second issue, he explains why he did certain things on that day. He says that he was not afforded the opportunity to respond to the factual allegations made by the respondent, nor to the proposed conditions of the order, and that he did not understand them at the time the Magistrate made the order; and finally, he says that the order will have a significant adverse impact on an application for residency that he has made or is making to the Department of Immigration, and that he was not aware of this consequence at the time he appeared in court on the 15th of March 2021. In support of his grounds of appeal, the appellant seeks leave pursuant to section 223(2) of the Justices Act 1886 (Qld) to adduce new evidence on appeal. The respondent’s solicitor opposed the application, but was content for me to receive the new evidence in order to consider the parties’ submissions subject to my final ruling on that issue. Pursuant to section 223, the court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. The reference to “special grounds” indicates there must be good reason identified to justify a departure from the application of the rule in section 223(1) that an appeal under section 222 is by way of rehearing on the evidence given in the proceedings before the justices. The principles applicable in considering such an application are not in dispute. The following considerations are a useful guide for the purposes of identifying the kind of special grounds which might be said to justify a grant of leave. First, whether the evidence relied on could, with reasonable diligence, have been produced by the appellant at the relevant hearing. Second, whether the evidence is apparently credible (or at least capable of belief). And third, whether the evidence, if believed, might reasonably have led a tribunal of fact to return a different decision or make a different order. See Pavlovic v Commissioner of Police [2006] QCA 134; [2007] 1 Qd R 344, at paragraph 30. See also Gallagher v The Queen [1986] 169 CLR 392, at 395 and 396.

Decision

Reasons for decision

For this reason, as well as for the other reasons I have identified, the order cannot stand, and will be set aside.Conclusion In conclusion, for the reasons I have identified, the orders of the learned Magistrate must be set aside, and the matter remitted to the Magistrates Court at Mareeba for rehearing according to law. That is, if the respondent wishes to persist with her complaint and summons. By way of an aside, I note that two of the allegations the subject of the complaint occurred more than one year ago now, and that the most recent allegation occurred in February 2021. On the basis of submissions heard today, I understand there has been no contact between the parties since some time in 2020. The long period between those allegations (even if they were made out) and the current date, may well be a matter highly relevant to the exercise of the discretion to make any orders. That is, of course, even assuming the court could be satisfied on the balance of probabilities of the matters in section 5(1)(c). I express no concluded view about that issue. If the respondent intends to persist with the complaint and summons, that will be a matter for a contested hearing at which both parties will be able to adduce sworn evidence. There is nothing in the material before me to suggest that the matter could not be heard by the original Magistrate, although it is not necessary that that Magistrate hear this matter. For completeness, I also note that the basis for the two year term of the order no longer applies because, on the submissions made in this Court, whatever application the respondent made to QCAT has since been dismissed, and there are no such proceedings on foot. The orders I make, then, are these: 1.Grant leave to adduce new evidence; 2.Allow the appeal; 3.Set aside the Peace and Good Behaviour order made on 15 March 2021 by the Magistrates Court at Mareeba; 4.Remit the matter for rehearing by the Magistrates Court at Mareeba according to law.

Ratio Decidendi

Legal Principle Established

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CITATION:	McQuinn v Dwyer [2021] QDC 252
PARTIES:	GRANT MCQUINN (appellant) v DANIELLE DWYER (respondent)
FILE NO:	59 of 2021
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Mareeba
DELIVERED ON:	30 July 2021 ex tempore
DELIVERED AT:	Cairns
HEARING DATE:	30 July 2021
JUDGE:	Fantin DCJ
ORDER:	1. Leave granted to adduce new evidence. 2. Appeal allowed. 3. The Peace and Good Behaviour Order made on 15 March 2021 by the Magistrates Court at Mareeba is set aside. 4. Remit the matter for rehearing to the Magistrates Court at Mareeba according to law.
CATCHWORDS:	PEACE AND GOOD BEHAVIOUR –appeal pursuant to s 222 Justices Act 1886 – where the appellant appeals against a peace and good behaviour order made against him pursuant to s 7 of the Peace and Good Behaviour Act 1982 – where the appellant seeks leave to adduce new evidence on appeal – whether the evidence sought to be adduced is relevant – whether the evidence might reasonably have led the learned Magistrate to make a different order - whether evidence led in the Magistrates Court supported the “matters of complaint” on the balance of probabilities – whether the Magistrate made adequate findings as to the “matters of the complaint” – whether the appellant was afforded procedural fairness at the hearing
LEGISLATION:	Justices Act 1886 (Qld), s 222, s 223(1), s 223(2) Peace and Good Behaviour Act 1982 (Qld) s 5, s 7, s 9
CASES:	Briginshaw v Briginshaw [1938] 60 CLR 336 Gallagher v The Queen [1986] 169 CLR 392 Harvey v Walker [2016] QDC 180 Hughes v Talty & Anor [2015] QDC 145 Laidlaw v Hulett [1998] 2 Qd R 45 Pavlovic v Commissioner of Police [2007] 1 Qd R 344 Tolhurst v Villan [2018] QDC 263
COUNSEL:	The appellant appeared on his own behalf
SOLICITORS:	O’Reilly Stevens Lawyers for the respondent