Tolhurst v Villan

Case [2018] QDC 263

DISTRICT COURT OF QUEENSLAND

CITATION:

Tolhurst v Villan [2018] QDC 263

PARTIES:

MALCOLM TOLHURST
(appellant/respondent)

v

JADE VILLAN
(respondent/complainant)

FILE NO:

APPEAL NO: 126 of 2018

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

13 December 2018

DELIVERED AT:

Cairns

HEARING DATE:

26 October 2018

JUDGE:

Morzone QC DCJ

ORDER:

1.   Appeal allowed.

2.   The judgment and orders made by the Magistrates Court on 19 June 2018 are set aside;

3.   The complaint and summons is dismissed;

4.   The respondent will pay the appellant’s costs of the Magistrates Court hearing and this appeal assessed at $3,000.00 plus outlays of $613.80.

CATCHWORDS:

PEACE & GOOD BEHAVIOUR – mode of appeal pursuant to s 222 Justices Act 1886 - where the appellant appeals against a good behaviour order ordered against him pursuant to s 7 of Peace and Good Behaviour Act 1982 – whether threshold power to issue the summons subject of appellate review - ‘matter of complaint” – admissibility of late statement on grounds of unfairness or relevance - whether the decision made was unreasonable & unsupported by evidence – standard of proof on balance of probabilities - costs

Legislation

Appeal Costs Fund Act 1973 (Qld)
Domestic and Family Violence Protection Act 2012 (Qld) s 145
Justices Act 1886 (Qld) ss 158, 222, 223, 225, 226, 227
Justices Regulation 2014 (Qld) s 232A
Peace and Good Behaviour Act 1982 (Qld) ss 4, 5, 6, 7, 9, 81

Cases

Allesch v Maunz (2000) 203 CLR 172
Briginshaw v Briginshaw (1938) 60 CLR 336
Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319
Laidlaw v Hulett [1998] 2 QdR 45
Latoudis v Casey (1990) 170 CLR 534
McDonald v Queensland Police Service [2017] QCA 255
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Palmer v Dolman [2005] NSWCA 361
Qantas Airways Ltd v Gama (2008) 167 FCR 537
R v Allie [1999] 1 Qd R 618
Refjek v McElroy (1965) 112 CLR 517
Scanlon v Queensland Police Service [2011] QDC 236
Teelow v Commissioner of Police [2009] QCA 84
Victoria v Turner (2009) 23 VR 110
White v Commissioner of Police [2014] QCA 121

SOLICITORS:

HA Mellick of Mellick & Smith for the Appellant
The respondent/complainant appeared unrepresented.

  1. The appellant appeals from the good behaviour order made against him on 19 June 2018 by the Magistrates Court pursuant to the Peace and Good Behaviour Act 1982 (Qld) (“the Act”).

  1. Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.

Background

  1. On 16 October 2017 the respondent, as complainant, filed a complaint and summons in the Magistrates Court seeking a Peace and Good Behaviour Order pursuant to s 5 of the Act. The complaint was apparently made to a justice of the peace who issues a summons in the prescribed form together with four annexures marked…

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Details
AGLC
Tolhurst v Villan [2018] QDC 263
Case
[2018] QDC 263
Decision Date

CaseChat Overview and Summary

Tolhurst v Villan involved an appeal by the appellant against a good behaviour order imposed by the Magistrates Court under the Peace and Good Behaviour Act 1982. The appeal was brought pursuant to section 222 of the Justices Act 1886. The central issue was whether the threshold power to issue the summons was subject to appellate review, and if the decision made by the Magistrates Court was unreasonable or unsupported by evidence. The appellant also argued that the admissibility of a late statement was unfair and irrelevant. Furthermore, the appellant questioned the standard of proof applied, specifically whether it was on the balance of probabilities.

The court considered whether the power to issue the summons was a justiciable matter and whether the decision was unreasonable and unsupported by evidence. It assessed whether the late statement was admissible and relevant to the proceedings. The court also examined the standard of proof required in the matter, finding that it was indeed on the balance of probabilities. After thorough consideration, the court concluded that the decision of the Magistrates Court was unreasonable and unsupported by evidence, leading to the appeal being allowed.

The court set aside the judgment and orders made by the Magistrates Court on 19 June 2018. It dismissed the complaint and summons brought by the respondent. The respondent was ordered to pay the appellant’s costs of the Magistrates Court hearing and this appeal, assessed at $3,000.00 plus outlays of $613.80. This decision underscores the importance of ensuring that decisions made by Magistrates Courts are both reasonable and adequately supported by evidence, particularly in matters involving good behaviour orders.

Orders

Orders of the court

1. Appeal allowed.

2. The judgment and orders made by the Magistrates Court on 19 June 2018 are set aside;

3. The complaint and summons is dismissed;

4. The respondent will pay the appellant’s costs of the Magistrates Court hearing and this appeal assessed at $3,000.00 plus outlays of $613.80.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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