OSE v HAN

Case [2020] QDC 309

DISTRICT COURT OF QUEENSLAND

CITATION:

OSE v HAN [2020] QDC 309

PARTIES:

OSE

(appellant)

v

HAN

(respondent)

FILE NO:

735/20

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

7 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2020

JUDGE:

Byrne QC DCJ

ORDERS:

1.   Appeal allowed.

2.   Vacate the order made in the Brisbane Magistrates Court on 12 February 2020 on file number 21522/18 declining to make the Protection Order.

3.   Remit the matter for rehearing by a Magistrate, other than the Magistrate who made the order on 12 February 2020.

4.   The appellant is to provide to my associate by email no later than 4.00pm on 14 December 2020 written submissions as to costs, limited to no more than 3 pages, with a view to the issue being determined on the papers.

5.   The respondent is to provide to my associate by email no later than 4.00pm on 21 December 2020 written submissions as to costs, limited to no more than 3 pages, with a view to the issue being determined on the papers.

6.   Any reply by the appellant is to be provided to my associate by email no later than 4.00pm on 24 December 2020 and to be limited to 3 pages.

7.   If either party wishes to make oral submissions as to costs, that request is to be contained in their written submission and that request will be determined by me on the papers.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appellant filed  an application for a Protection Order against the respondent under the Domestic and Family Violence Protection Act 2012 – where at the conclusion of the appellant’s case, the respondent made a no case submission – where the Magistrate ordered that a Protection Order not be made – whether the learned Magistrate erred in law in deciding the no case application on the merits of the evidence – whether the learned Magistrate erred in law in failing to afford procedural fairness to the appellant by failing to notify of an intention to decide the application on the merits of the evidence – whether the learned Magistrate erred in law in considering the no case submission where the respondent had adduced evidence but not been put to his election – whether the learned Magistrate erred in law in basing the decision on the evidence of the respondent – what criteria should be applied in considering a summary dismissal application.

LEGISLATION:

Domestic Family Violence Protection Act 2012 (Qld) sections 3, 4, 8, 10, 11, 12, 23, 37, 38, 78, 142, 143, 145, 157, 164, 168, 169.

Family Law Act 1975 (Cth).

Magistrates Courts Act 1921 (Qld).

Maintenance Act 1949.

CASES:

Allesch v Maunz (2000) 203 CLR 172.

Australian Communications Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 7) [2010] FCA 133.

Australian Competition & Consumer Commission v Pauls Ltd [2002] FCA 1586.

Bakir v Doueihi and Ors [2001] QSC…

Continue reading OSE v HAN

Sign in free to access the full text

Details
AGLC
Ose v Han [2020] QDC 309
Case
[2020] QDC 309
Decision Date

CaseChat Overview and Summary

In the case of OSE v HAN, the appellant, OSE, sought a Protection Order against the respondent, HAN, under the Domestic and Family Violence Protection Act 2012. The appeal before the court was in relation to the decision of the Brisbane Magistrates Court, which declined to make the Protection Order. The central issues in the appeal were whether the Magistrate erred in law by deciding the no case submission on the merits of the evidence, whether the Magistrate failed to afford procedural fairness to the appellant, and whether the Magistrate erred in considering the no case submission and basing the decision on the evidence of the respondent. The court was required to determine the criteria that should be applied in considering a summary dismissal application.

The court found that the Magistrate did indeed err in law in various respects. Firstly, the court held that the no case application should have been determined solely on the evidence in the appellant's case and not on the evidence tendered by the respondent. The court considered that the Magistrate's reliance on the respondent's affidavit, which was not formally read to the court, constituted a denial of procedural fairness. The court emphasised that the reading of the affidavit affords procedural fairness to the other party, and the appellant was not aware that the affidavit could be considered in the application. The court also found that the Magistrate erred in basing the decision, in part, on the evidence of the respondent, as it was not based in toto on the respondent's evidence.

The appeal was allowed, and the order made in the Brisbane Magistrates Court on 12 February 2020 was vacated. The matter was remitted for rehearing by a different Magistrate. The court further directed the parties to provide written submissions regarding costs, with an option to make oral submissions if desired. The written submissions were to be limited to three pages, and specific deadlines were set for the submission of these documents.

Orders

Orders of the court

1. Appeal allowed.

2. Vacate the order made in the Brisbane Magistrates Court on 12 February 2020 on file number 21522/18 declining to make the Protection Order.

3. Remit the matter for rehearing by a Magistrate, other than the Magistrate who made the order on 12 February 2020.

4. The appellant is to provide to my associate by email no later than 4.00pm on 14 December 2020 written submissions as to costs, limited to no more than 3 pages, with a view to the issue being determined on the papers.

5. The respondent is to provide to my associate by email no later than 4.00pm on 21 December 2020 written submissions as to costs, limited to no more than 3 pages, with a view to the issue being determined on the papers.

6. Any reply by the appellant is to be provided to my associate by email no later than 4.00pm on 24 December 2020 and to be limited to 3 pages.

7. If either party wishes to make oral submissions as to costs, that request is to be contained in their written submission and that request will be determined by me on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In my view, relevant error is established under this ground of appeal. Ground 6: Error in basing the decision on the evidence of the respondent. This ground of appeal must be understood as asserting error in basing the decision, in part, on the evidence of the respondent, as it was not based in toto on the evidence of the respondent. For reasons earlier expressed, in my view the no case application should have been determined solely on the evidence in the appellant’s case. By that, I mean evidence adduced by the appellant, and not that tendered by the respondent in the course of her case. The appellant complains that the Magistrate took into account the contents of the respondent’s affidavit filed in the proceedings, but which counsel had not “read” to the Court. The appellant’s argument is therefore premised on the assertion that the Magistrate took into account material that was not in fact evidence in the proceedings before him. There can be no doubt that the Magistrate did consider the contents of the respondent’s affidavit.[61] [61]Reasons at [31]. However, given a Court hearing a proceeding under the DFVP Act is not bound by any practices or procedures applying to courts of record,[62] I am not convinced that a failure to formally read the affidavit precluded reliance on its contents. The usual practice in applications of this nature is for the filing of affidavits by both parties, and the reliance on them in place of oral evidence in chief. Given that more relaxed practice, it seems to me that the affidavit would, if there was nothing more, be available to the Magistrate for consideration as evidence in the proceeding as a matter of usual practice.[62]Section 145(1)(a) of the DFVP Act. I do however accept that the reading of the affidavit affords procedural fairness to the other party so that they are aware of what case they must meet, as the appellant orally submitted before me. As the affidavit was not formally read, and there was no indication by the respondent[63] or the Magistrate of an intention to consider the affidavit, the appellant was unaware of possible consideration of it in an application which was understood to be based only on the evidence before the Magistrate and with the appellant’s case taken at its highest. That in itself was, in my view, a denial of procedural fairness, and hence a relevant error.[63]That is not intended to suggest that the respondent did rely on the contents of his affidavit in the course of submissions; it appears to me that he did not. Further, in this matter there was more. A direction had been given that no affidavit was to be filed unless the deponent was available for cross-examination. The appellant was entitled to expect that, given there had been no opportunity to cross-examine the respondent, that there would be no reliance by the Magistrate on the contents of that affidavit. The exchange between Counsel and the Magistrate on 25 June 2019 wherein the appellant’s Counsel indicated an intention to tender material through the cross-examination of the respondent, and the Magistrate’s apparent recognition that there was that right, can only have reinforced that expectation. To proceed on the basis of material which was not reasonably expected to be included within the ambit of the consideration was in itself an error in the absence of giving the parties an opportunity to be heard on the issue.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.