NBE v PRT & Anor

Case [2018] QDC 29

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 222

CASES:

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 337

McDonald 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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Details
AGLC
Nbe v Prt [2018] QDC 29
Case
[2018] QDC 29
Decision Date

CaseChat Overview and Summary

NBE sought an appeal against the decision of PRT and another respondent, made by the Magistrates Court at Hervey Bay, which dismissed an application for a protection order under the Domestic and Family Violence Protection Act 2012. The appellant did not appear in person at the hearing and instead provided authorisation for another person to appear on their behalf. The Magistrate excluded the person from the proceedings and conducted the hearing ex parte, subsequently dismissing the application. The Magistrate also made findings under s 157(2) of the Act that the application was malicious, deliberately false, frivolous, and vexatious and ordered the appellant to pay the respondent’s costs. NBE filed the notice of appeal one week after the allowed timeframe. The appellant was a self-represented litigant.

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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