Mi v Si

[2024] QDC 145

QUEENSLAND COURTS AND TRIBUNALS

TRANSCRIPT OF PROCEEDINGS

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DISTRICT COURT OF QUEENSLAND

APPELLATE JURISDICTION

JUDGE SMITH

Appeal No 492 of 2024

MI  Appellant

and

SI  Respondent

BRISBANE

10.26 AM, FRIDAY, 10 MAY 2024

DAY 1

JUDGMENT

Any rulings in this transcript may be extracted and revised by the presiding Judge.

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HIS HONOUR:   The appellant appeals the decision made in the Magistrates Court at Beenleigh on 2 February 2024.  The application is to refuse leave to subpoena three civilian witnesses, WP, BC, and PC.  I have read the material in reaching my decision.  The original application was made on this matter, under the Domestic Violence and Family Protection Act 2012, in 2021.  There has been a number of affidavits filed.  The aggrieved has alleged in the affidavits that the conduct of the appellant, here, has caused disruption to the business and has caused fear in the employees.  It is also evidenced of various communications between the employees and the aggrieved. 

In McEwan v Rains, the Court of Appeal discussed the principles concerning the issue of subpoenas.  The test is whether the evidence is apparently relevant.  Apparent relevance is ascertained by an examination of the description of the evidence sought by subpoena in light of the issues in the case.  It will not be fishing to seek a subpoena, or apparently relevant documents, are there for the purpose of cross-examination, even if the subpoenaing party does not know whether the documents will assist or advance its case.  A party might be materially assisted in its case by knowing what apparently relevant documents say, even if they do not ultimately assist.  I have read the transcript.  In my view, it seems to me that these witnesses are apparently relevant, and if it had been before me, I would have given leave to issue the subpoenas. 

Having said that, the respondent has pointed out section 164 of the Act.  164 sets out which people may appeal decisions of the Magistrates Court.  This order made by the Magistrate in February of this year was an interim order.  Interim orders cannot be the subject of an appeal against this Act.  I find I have no jurisdiction, by reason of the respondent’s submissions, to deal with this appeal.  I was told that this matter has been before the Courts for quite some time now.  The appellant’s application was filed in November of 2022.  It has yet not come on for hearing.  I am told that the application to extend the DVO is listed for 21 June of this year.  It has been separated from the appellant’s application, and there seems to be no challenge to that. 

It seems to me it is important that this matter be resolved swiftly, and I would suggest the applicants – the appellant’s application be heard as soon as possible as well, and if Beenleigh is very busy, as I am told, it seems desirable for that application to be heard in Brisbane.  I dismiss the appeal for the reasons given.  I direct a copy of the transcript of this judgment be provided to the parties.  Anything else at this point?  Nothing else?

MS BOETTCHER:   No, your Honour.

HIS HONOUR:   All right.  Thank you very much.  Adjourn the Court.  Thanks.

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