DISTRICT COURT OF QUEENSLAND
CITATION:
NBE v PRT & Anor [2018] QDC 29
PARTIES:
NBE
(applicant)
v
PRT
(first respondent)
and
THE COMMISSIONER OF POLICE
(second respondent)
FILE NO/S:
D6 of 2016
DIVISION:
Criminal
PROCEEDING:
Appeal under the Domestic and Family Violence Protection Act 2012
ORIGINATING COURT:
Magistrates Court at Hervey Bay
DELIVERED ON:
13 March 2018
DELIVERED AT:
Maroochydore (with audio-visual link to Hervey Bay)
HEARING DATE:
6 February 2017 & 10 February 2017
JUDGE:
Long SC DCJ
ORDER:
1. The time for the filing of the Notice of Appeal is extended to 10 May 2016.
2. The appeal is allowed and it is ordered that the decision of the Magistrates Court at Hervey Bay on 5 April 2016, is varied so as to delete the order that the applicant pay the respondent’s costs of defending the application.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL - Where the appellant’s notice of appeal was filed one week after the allowed timeframe – where the appellant was a self-represented litigant – whether the time period for filing the notice of appeal should be extended
FAMILY LAW – DOMESTIC VIOLENCE – APPLICATION FOR PROTECTION ORDER UNDER THE DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT – Where there was a hearing for a protection order under the Domestic and Family Violence Protection Act 2012 – where the applicant failed to appear in person at the hearing– where the applicant provided, in writing, authorisation for another person to appear for them – where the Magistrate excluded that person from proceedings without consideration of s 147 Domestic and Family Violence Protection Act 2012 – where the hearing was conducted ex parte – where the Magistrate dismissed the application – where the Magistrate made findings under s 157(2) of the Domestic and Family Violence Protection Act 2012 that the application was malicious, deliberately false, frivolous and vexatious – where the Magistrate subsequently ordered costs against the applicant – where such findings were based upon the respondents evidence which was given without the opportunity of contest – whether the Magistrate erred in excluding the person authorised by the applicant to appear for them – whether the Magistrate erred in making such findings against the applicant under s 157(2)
LEGISLATION:
Domestic and Family Violence Protection Act 2012 ss 23, 25, 37, 38, 39, 136, 142, 142, 145, 146, 147, 157, 164, 165, 167, 169, sch 1
Justice Act 1886 s 222CASES:
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner of Police v Al Shakarji [2013] QCA 319
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
Knight v FP Special Assets Ltd (1992) 174 CLR 178
LKF v MRR [2012] QDC 355
LKL v BSL [2015] QDC 337McDonald v Queensland Police Service [2017] QCA 255 at [47]
Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181
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- AGLC
- Nbe v Prt [2018] QDC 29
- Case
- [2018] QDC 29
- Decision Date
CaseChat Overview and Summary
The court considered whether the time period for filing the notice of appeal should be extended and whether the Magistrate erred in excluding the person authorised by the applicant to appear for them, and in making findings against the applicant under s 157(2) of the Act. The court examined the general principles regarding the grant or refusal of an extension of time for filing a notice of appeal, as well as the relevant statutory provisions and case law.
The court found that the appellant’s delay in filing the notice of appeal was not entirely inexcusable, and that there were exceptional circumstances that warranted an extension of time. The court also found that the Magistrate erred in excluding the person authorised by the applicant to appear for them without consideration of s 147 of the Act. The court held that the Magistrate’s findings under s 157(2) of the Act were based on the respondents' evidence, which was given without the opportunity of contest, and were therefore flawed.
The court allowed the appeal, varied the Magistrates Court’s decision to delete the order that the appellant pay the respondent’s costs, and extended the time for filing the notice of appeal to 10 May 2016.
Orders
Orders of the court
1. The time for the filing of the Notice of Appeal is extended to 10 May 2016.
2. The appeal is allowed and it is ordered that the decision of the Magistrates Court at Hervey Bay on 5 April 2016, is varied so as to delete the order that the applicant pay the respondent’s costs of defending the application.
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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