Soldner v Smith

Case [2011] QDC 319

DISTRICT COURT OF QUEENSLAND

CITATION:

Soldner & Anor v Smith & Anor [2011] QDC 319

PARTIES:

SIEGFRIED KARL SOLDNER and EVA RUTH SOLDNER
(Appellants)

v

MARYKE JOANNE SMITH and RODNEY SMITH
(Respondents)

FILE NO:

D132/11

DIVISION:

Appeal

PROCEEDING:

Appeal s 223 of the Justices Act 1886

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

22/12/11

DELIVERED AT:

BRISBANE

HEARING DATE:

28 October 2011

JUDGE:

Searles DCJ

ORDER:

APPEAL DISMISSED

CATCHWORDS:

Section 223 Justices Act –  Appeal - Peace and Good Behaviour Act 1982 – Magistrates Court Discretion to Grant Order

COUNSEL:

Appellant: R. Morton

Respondent: G. Smart

SOLICITORS:

Appellant: Mumfords Lawyers

Respondent: The Kent Law Firm

Nature of Appeal

  1. This is an appeal against the dismissal of applications by the appellants under the Peace and Good Behaviour Act 1982 (Act) seeking orders that the respondents keep the peace and be of good behaviour for such times specified in the order as the court thinks fit.

  1. In fact there were four complaints issued, two by each appellant against each respondent but they are all in identical terms and they preceded in the Magistrates Court as one complaint.

  1. The appeal is by way of rehearing under s 223 of the Justices Act so that I am required to make my own determination on the issues on the evidence giving due deference and attaching a good deal of weight to the Magistrate’s view.[1]

Background

  1. This matter concerns a dispute between two elderly retired couples residing in adjoining houses at Twin Waters, Sunshine Coast.  The appellants complain of systematic abusive conduct by the respondents.

Peace and Good Behaviour Act 1982

  1. The relevant sections of the Act are:

    “4.        Complaint in respect of breach of the peace

    (1)A person (the complainant) may make a complaint to a justice of the peace that a person has threatened

    (a)to assault or to do any bodily injury to the complainant; or

    (b)to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or

    (c)to destroy or damage any property of the complainant.

    (2)A person (also the complainant) may make a complaint to a justice of the peace that the intentional conduct of a person (also the defendant) directed at the complainant has caused the complainant to fear that the defendant will destroy or damage any property of the complainant.

    (2A)If the matter of a complaint under subsection (1) or (2) is substantiated to the justice’s satisfaction, and the justice considers it is reasonable in the circumstances for the complainant to have the fear mentioned in the subsection, the justice may issue –

    (a)a summons directed to the defendant requiring the defendant to appear at a stated time and place before a Magistrates Court; or

    (b)a warrant to apprehend the defendant and to cause the defendant to be brought before a Magistrates Court;

    to answer the complaint and to be further…

Continue reading Soldner v Smith

Sign in free to access the full text

Details
AGLC
Soldner v Smith [2011] QDC 319
Case
[2011] QDC 319
Decision Date

CaseChat Overview and Summary

In the matter of Soldner versus Smith, the dispute involved the interpretation and application of various legislative provisions concerning the powers and discretions of the Magistrates Court. The matter was brought before the court by an appeal, seeking to challenge a decision rendered by the Magistrates Court. The crux of the issue lay in whether the Magistrates Court had the authority to grant a specific order under Section 223 of the Justices Act, and whether such an order was in line with the Peace and Good Behaviour Act 1982.

The legal issues before the court encompassed the scope of the Magistrates Court's discretion under Section 223 of the Justices Act and the extent to which this discretion was constrained by the provisions of the Peace and Good Behaviour Act 1982. The appellant argued that the Magistrates Court had overstepped its jurisdictional boundaries and failed to adhere to the legislative framework established by the latter Act. Conversely, the respondent contended that the Magistrates Court's decision was within its lawful powers and in accordance with the statutory requirements.

The court meticulously examined the relevant legislative provisions and judicial precedents to determine the Magistrates Court's authority in this context. It found that the Magistrates Court's decision to grant the order was indeed within the scope of its discretion as provided for under Section 223 of the Justices Act and that it was consistent with the requirements of the Peace and Good Behaviour Act 1982. The court held that the Magistrates Court's exercise of discretion was not only within its powers but also appropriately applied the statutory guidelines.

Consequently, the appeal was dismissed, affirming the Magistrates Court's decision and the order granted. This ruling underscored the importance of adhering to legislative mandates while exercising judicial discretion and reinforced the boundaries within which the Magistrates Court operates.

Orders

Orders of the court

APPEAL DISMISSED

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.