SNW v TRD

[2023] QDC 149

DISTRICT COURT OF QUEENSLAND

CITATION: 

SNW v TRD [2023] QDC 149

PARTIES: 

 
SNW

(appellant)

v

TRD

(respondent)

FILE NO:

BD No 831 of 2023

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT: 

District Court in Brisbane

DELIVERED ON:

25 August 2023  

DELIVERED AT:

Brisbane

HEARING DATE: 

23 August 2023  (on the papers)

JUDGE:

Porter KC DCJ

ORDER:

1.          Leave to appeal is granted;

2.          The appeal is allowed;

3.          The protection made in the Caboolture Magistrates Court on 14 December 2022 is set aside

4.          The application for a protection order is remitted to the Caboolture Magistrates Court for rehearing before a different Magistrate;

5.          A temporary protection order is reinstated/made in identical terms to the termporary protection order made in the Caboolture Magistrates Court on 30 August 2022;

6.          No order as to costs.

CATCHWORDS:

 MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – WHEN APPEAL LIES – where the learned Magistrate made a protection order against the appellant in the absence of the appellant’s appearance – where the protection order was made without consideration of the merits – where the learned Magistrate made the order without giving reasons – where the application was listed for mention only – where the applicant did not seek final orders –  whether the protection order imposed against the appellant should be set aside

COUNSEL:

C Minnery for the appellant

SOLICITORS:

Jasper Foggerty for the appellant

Queensland Police Service Legal Services for the respondent   

1. On 14 December 2022, the Magistrates Court at Caboolture made a protection order against the appellant.  The protection order was made on the terms of an extant temporary protection order for 5 years. 

2. The order was made, relevantly, in the following circumstances.

   (a)First, the matter had been listed for mention on that date.  It was not listed for hearing.  The first respondent’s solicitor did not ask the Magistrate to proceed to final orders;

   (b)Second, the appellant did not appear, and the learned Magistrate had a basis to believe the appellant did not appear because he was in another court dealing with a criminal matter;

   (c)Third, the learned Magistrate did not appear to have had the appellant called;

   (d)Fourth, the learned Magistrate made final orders in terms of the temporary protection order without considering any evidence which might have been filed; and

   (e)Fifth, the learned Magistrate gave no reasons.

3. The orders should not have been made in those circumstances.

4. The first, second and third matters resulted in the hearing of the application being unfair, contrary to the express requirements of rules 22 and 23 of the Domestic and Family Violence Protection Rules 2014 (Qld) (DFPV Rules), especially r 23(2)(b):  

   (a)If a matter is not listed for a final hearing, a respondent is entitled to act on the basis that no final orders will be made.  Of course, a party to an application ought to appear on all mentions of a matter, but that does not mean that if they…