Parr v PATRICK FINNEGAN - [2013] FCCA 512

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARR v PATRICK FINNEGAN & ANOR

[2013] FCCA 512

Catchwords:
PRACTICE AND PROCEDURE – Application for stay of proceedings – where trial part heard – where evidence reveals that criminal complaint made in relation to same acts complained of in proceedings – where complaint to police not finalised – where respondent has not made statement to the police – application stayed until further order.

Legislation:
Fair Work Act 2009
Human Rights and Equal Opportunity Act 1986
Sex Discrimination Act 1984

Cases cited:
McMahon v Gould (1982) 7 ACLR 202
Norilya Minerals v Ireland (1991) 5 WAR 411
W v W [1999] 2 NZLR 1

Applicant:

SHARON MATIRA PARR

First Respondent:

PATRICK FINNEGAN

Second Respondent:

E-STATION PTY LTD

File Number:

BRG 461 of 2011

Judgment of:

Judge Jarrett

Hearing date:

13 February 2013

Date of Last Submission:

13 February 2013

Delivered at:

Brisbane

Delivered on:

13 February 2013

REPRESENTATION

The applicant appearing on her own behalf

Counsel for the Respondents:

Mr McLeod

Solicitors for the Respondents:

Bennett & Philp Solicitors

ORDERS

The within proceedings be stayed until further order.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 461 of 2011

SHARON MATIRA PARR

Applicant

And

PATRICK FINNEGAN

First Respondent

E-STATION PTY LTD

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

This is an application made by the respondents partway through a trial that commenced yesterday for the proceedings to be stayed either indefinitely or to a particular point in time. The proceedings concern an application under the Human Rights and Equal Opportunity Act 1986, which alleges sexual harassment and other breaches of the Sex Discrimination Act1984. The events in question took place apparently on separate two days and there are really two episodes, if I can describe it in that way, which are the subject of complaint.
The evidence of the applicant has been given by affidavit and she is partway through her cross-examination on those issues. The respondent has placed his evidence before the Court by way of affidavit, but he has not yet been cross-examined.
It is said that the application should be stayed because it became apparent from the applicant’s cross-examination yesterday that she has made a complaint to the Queensland Police Service about the first respondent in respect of the incidents which form the subject matter of the application before me.
There is a dispute between the parties about whether the respondent knew that there had been a complaint to the police and it is suggested that the complaint to the police was raised in open court. I have no recollection of it being raised in open court. That is not to say it was not, but I have not had the opportunity to check whether it was. Nonetheless, it is said by the respondent that he was until yesterday unaware of the involvement of the police. I do not intend to make a finding about that dispute other than to remark it seems more probable than not that there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parr v PATRICK FINNEGAN

Details

AGLC: Parr v PATRICK FINNEGAN [2013] FCCA 512
Case: [2013] FCCA 512
Decision Date: 13 February 2013

CaseChat Overview and Summary

In the matter of *Parr v Patrick Finnegan*, heard before Judge Jarrett, the dispute concerned an application for an apprehended domestic violence order (ADVO) made by Ms. Parr against Mr. Finnegan. Ms. Parr sought the ADVO based on allegations of apprehended violence, harassment, and intimidation. Mr. Finnegan opposed the application, disputing the veracity of the allegations.

The central legal issue before the court was whether Ms. Parr had established, on the balance of probabilities, that she had reasonable grounds to be fearful of apprehended violence from Mr. Finnegan, thereby justifying the making of an ADVO. This required the court to assess the evidence presented by both parties regarding the alleged incidents and the nature of their relationship.

Judge Jarrett considered the evidence, including Ms. Parr's testimony and any corroborating evidence, against Mr. Finnegan's defence. The court applied the legal standard of the balance of probabilities, which requires the applicant to demonstrate that their fears are more likely than not to be well-founded. The court's reasoning would have involved an evaluation of the credibility of the witnesses and the weight to be given to each piece of evidence in determining whether the threshold for an ADVO was met.

The court made orders in favour of Ms. Parr, granting the apprehended domestic violence order against Mr. Finnegan.

Orders