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RIS v DOL & Anor

RIS v DOL & Anor

Case [2021] QDC 154 4 June 2021

Domestic and Family Violence Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

RIS v DOL & Anor [2021] QDC 154

PARTIES:

RIS

(appellant)

v

DOL

(first respondent)

and

Commissioner of Police

(second respondent)

FILE NO/S:

2557 of 20

DIVISION:

Appellate jurisdiction

PROCEEDING:

Appeal

ORIGINATING COURT:

Holland Park Magistrates Court

DELIVERED ON:

4 June 2021 (delivered ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2021

JUDGE:

Dearden DCJ

ORDER:

1.   The first respondent’s application of 25 May 2021 seeking to strike out the appeal for failure to comply with time limits, is refused.

2.   The orders made at the Holland Park Magistrates Court on 12 August 2020, dismissing the appellant’s application and granting the respondent’s application, be set aside.

3.   The applications be remitted to the Brisbane Central Magistrates Court for rehearing, before a different magistrate.

4.   By consent of the parties, I make temporary protection orders in the standard conditions under s 56 of the DVFPA in favour of each of the appellant, RIS, and the first respondent, DOL, as follows:

1.   The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

2.   The respondent must be of good behaviour towards the children [names redacted]; and must not commit associated domestic violence against the children; and must not expose the children to domestic violence.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – Where the parties made cross-applications for protection orders – Where the learned magistrate dismissed the appellant’s application – Where the learned magistrate granted the respondent’s application in standard terms, for a period of five years – Where the orders were made at a review of the matter – Where the parties were not given the opportunity to cross-examine each other – Where the learned magistrate did not hear submissions from the parties – Where the appellant submits that the learned magistrate did not have the power to make the orders made in this manner – Where the appellant submits that the learned magistrate erred in not hearing either application in accordance with law, or otherwise not proceeding according to law – Where the appellant submits that the learned magistrate erred in dismissing the appellant’s application – Where the appellant submits that the learned magistrate erred in granting the respondent’s application – Whether procedural fairness was afforded

CIVIL PROCEDURE – SUMMARY DISMISSAL – Where the respondent applies for summary dismissal due to non-compliance with District Court Practice Direction 7 of 2020 – Where outlines of argument on behalf of all parties had been filed, a certificate of readiness had been signed by all parties and a hearing date had been listed

Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 38, 142, 150, 151,164, 166, 167, 168, 169

Uniform Civil Procedure Rules 1999 (Qld) rr 79, 452, 982

DMO v RPD [2009] QDC 92

HBY v WBI & Anor [2020] QDC 81

LKL v BSL [2015] QDC 337

Ratten v The Queen [1974] 131 CLR 510

COUNSEL:

CC Minnery for the…

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 RIS v DOL & Anor

Details

AGLC: RIS v DOL [2021] QDC 154
Case: [2021] QDC 154
Decision Date: 4 June 2021 (delivered ex tempore)

CaseChat Overview and Summary

RIS v DOL & Anor involved the appellant, RIS, and the respondents, DOL and another, who made cross-applications for protection orders before the magistrate. RIS's application was dismissed, while DOL's was granted in standard terms for five years. The appeal centred on the procedural fairness afforded to the parties and the magistrate's decision-making process. RIS contended that the magistrate lacked the authority to make the orders in the manner they were made, that the magistrate erred in not hearing either application in accordance with law, and that the magistrate erred in dismissing RIS's application and granting DOL's application. RIS further argued that the magistrate did not hear submissions from the parties or allow the parties to cross-examine each other, which deprived them of procedural fairness.

The court considered whether the magistrate's process complied with the principles of natural justice and procedural fairness. The court noted that the magistrate did not hear submissions from the parties or allow cross-examination, which raised concerns about procedural fairness. The court found that the magistrate erred in not proceeding according to law by not allowing the parties to be heard and to cross-examine each other. The court also found that the magistrate erred in dismissing RIS's application and granting DOL's application without proper consideration of the evidence and submissions. The court concluded that the magistrate's failure to follow the correct legal process and to afford procedural fairness to the parties rendered the orders invalid.

The court set aside the orders made at the Holland Park Magistrates Court on 12 August 2020, dismissing RIS's application and granting DOL's application. The court remitted the applications to the Brisbane Central Magistrates Court for rehearing before a different magistrate. The court also made temporary protection orders in the standard conditions under s 56 of the DVFPA in favour of each of the appellant, RIS, and the first respondent, DOL, as follows: the respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved; the respondent must be of good behaviour towards the children and must not commit associated domestic violence against the children; and must not expose the children to domestic violence.

Orders

Orders of the court

1. The first respondent’s application of 25 May 2021 seeking to strike out the appeal for failure to comply with time limits, is refused.

2. The orders made at the Holland Park Magistrates Court on 12 August 2020, dismissing the appellant’s application and granting the respondent’s application, be set aside.

3. The applications be remitted to the Brisbane Central Magistrates Court for rehearing, before a different magistrate.

4. By consent of the parties, I make temporary protection orders in the standard conditions under s 56 of the DVFPA in favour of each of the appellant, RIS, and the first respondent, DOL, as follows:

1. The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

2. The respondent must be of good behaviour towards the children [names redacted]; and must not commit associated domestic violence against the children; and must not expose the children to domestic violence.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

RIS v DOL [2021] QDC 154

Most Recent Citation

RIS v DOL (No. 2) [2021] QDC 157

Cases citing this decision · 5 of 5 shown

RQM v PAK
[2023] QDC 53 Para 14

…g guidelines are apposite, from this and other cases: [44]Apart from the cases referred to above, such issues also arose recently in RIS v DOL & Anor [2021] QDC 154 (a)Where there is an application for, or consideration of, an order under s 151 that a self-represented respondent not be permitted to personally cro…
HFL v PLL
[2022] QDC 276 Para 1

…position of the relevant law in respect of appeals under the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) in RIS v DOL & Anor [2021] QDC 154.[2] [2] RIS v DOL & Anor [2021] QDC 154 [9] – [14].…
HFL v PLL
[2022] QDC 219 Para 1

…position of the relevant law in respect of appeals under the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) in RIS v DOL & Anor [2021] QDC 154.[2] [2] RIS v DOL & Anor [2021] QDC 154 [9] – [14].…
TG v CK
[2021] QDC 258 Para 1

…gs under the DFVPA were made by Dick SC DCJ in LKL v BSL [6] and by Dearden DCJ in RIS v DOL & Anor [7]. [5] [2009] QDC 92 [6] [2015] QDC 337 [7] [2021] QDC 154…
Ris v Dol (No. 2)
[2021] QDC 157 Para 2

…tes Court for rehearing before a different magistrate; and listed the issue of costs for hearing before me on 21 July 2021.[1] [1] RIS v DOL & Anor [2021] QDC 154.…

View all 5 citing cases →

Cases cited in this decision · 10 of 10 shown

HBY v WBI & Anor
[2020] QDC 81 Para 1

…Moynihan QC DCJ outlined the approach to DFVPA s.168(1) & (2) in HBY v WBI & Anor [2020] QDC 81, as follows:…
R v A2
[2019] HCA 35

…reason is shown for there to be an exception made to the rule under s.168(1): see s.14A of the Acts Interpretation Act 1954 (Qld) and R v A2 [2019] 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, thos…
Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors
[2016] QChC 16

…y way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at 73. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the a…
LKL v BSL
[2015] QDC 337 Para 1

…In LKL v BSL [2015] QDC 337, Dick DCJ, citing DMO v RPD [2009] QDC 92, [5], in dealing with an appeal under the current legislation (DFVPA 2012), stated:-…
GKE v EUT
[2014] QDC 248 Para 2

…“[18] An appeal under s.168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at 73. The powers of the appellate court may be exercised only where the appellant can demonstrate that,…
DMO v RPD
[2009] QDC 92 Para 1

…What then are the obligations of procedural fairness in the context of the DFVPA? In DMO v RPD [2009] QDC 92, McGill DCJ, dealing with the predecessor legislation, the DFVPA (1989), stated:…
FY v Department of Child Safety
[2009] QCA 67 Para 12

…cise of the discretion under s.168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. The circumstances in which s.168(2) applies, are not prescribed in the Act. However, taking into account the words of s.168 as a whole, i…
Fox v Percy
[2003] HCA 22

…e appellate court, the order that is the subject of the appeal, is the result of some legal, factual or discretionary error: see Fox v Percy [2003] 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s.168(2), to order some or all of the evidence be heard afresh, or for further evidence…
Kioa v West
[1985] HCA 81

…cumstances, making such an order is plainly a serious matter, so that one would expect the rules of procedural fairness to apply ( Kioa v West [1985] 159 CLR 550, 584). [7] There is also the consideration that by s.38(2)(a) the provisions of the Justices Act 1886 apply to the proceeding unless the application…
Ratten v The Queen
[1974] HCA 35

…O v RPD [2009] QDC 92 HBY v WBI & Anor [2020] QDC 81 LKL v BSL [2015] QDC 337 Ratten v The Queen [1974] 131 CLR 510 COUNSEL: CC Minnery for the appellant The first respondent was self-represented IP Fraser for the second respondent SOLICITORS: Life Law Solutions for the appellant Commissioner of Police for the…

Legislation cited in this decision · 6

Domestic and Family Violence Protection Act 2012 (Qld)
142, 150, 151, 164, 166, 167, 168, 169,... 10 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
452, 452(2), 79, 982 4 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
1 mention
Commercial and Consumer Tribunal Act 2003 (Qld)
47 1 mention
Domestic and Family Violence Protection Act 1989 (Qld)
1 mention
Justices Act 1886 (Qld)
1 mention

CITATION:	RIS v DOL & Anor [2021] QDC 154
PARTIES:	RIS (appellant) v DOL (first respondent) and Commissioner of Police (second respondent)
FILE NO/S:	2557 of 20
DIVISION:	Appellate jurisdiction
PROCEEDING:	Appeal
ORIGINATING COURT:	Holland Park Magistrates Court
DELIVERED ON:	4 June 2021 (delivered ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2021
JUDGE:	Dearden DCJ
ORDER:	1. The first respondent’s application of 25 May 2021 seeking to strike out the appeal for failure to comply with time limits, is refused. 2. The orders made at the Holland Park Magistrates Court on 12 August 2020, dismissing the appellant’s application and granting the respondent’s application, be set aside. 3. The applications be remitted to the Brisbane Central Magistrates Court for rehearing, before a different magistrate. 4. By consent of the parties, I make temporary protection orders in the standard conditions under s 56 of the DVFPA in favour of each of the appellant, RIS, and the first respondent, DOL, as follows: 1. The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved. 2. The respondent must be of good behaviour towards the children [names redacted]; and must not commit associated domestic violence against the children; and must not expose the children to domestic violence.
CATCHWORDS:	DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – Where the parties made cross-applications for protection orders – Where the learned magistrate dismissed the appellant’s application – Where the learned magistrate granted the respondent’s application in standard terms, for a period of five years – Where the orders were made at a review of the matter – Where the parties were not given the opportunity to cross-examine each other – Where the learned magistrate did not hear submissions from the parties – Where the appellant submits that the learned magistrate did not have the power to make the orders made in this manner – Where the appellant submits that the learned magistrate erred in not hearing either application in accordance with law, or otherwise not proceeding according to law – Where the appellant submits that the learned magistrate erred in dismissing the appellant’s application – Where the appellant submits that the learned magistrate erred in granting the respondent’s application – Whether procedural fairness was afforded CIVIL PROCEDURE – SUMMARY DISMISSAL – Where the respondent applies for summary dismissal due to non-compliance with District Court Practice Direction 7 of 2020 – Where outlines of argument on behalf of all parties had been filed, a certificate of readiness had been signed by all parties and a hearing date had been listed
Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 38, 142, 150, 151,164, 166, 167, 168, 169 Uniform Civil Procedure Rules 1999 (Qld) rr 79, 452, 982
DMO v RPD [2009] QDC 92 HBY v WBI & Anor [2020] QDC 81 LKL v BSL [2015] QDC 337 Ratten v The Queen [1974] 131 CLR 510
COUNSEL:	CC Minnery for the…