OSE v HAN

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.