Wbi v HBY - [2020] QCA 24

SUPREME COURT OF QUEENSLAND

CITATION:

WBI v HBY & Anor [2020] QCA 24

PARTIES:

CONSTABLE WBI
(applicant)
v
HBY
(first respondent)
LAP
(second respondent)

FILE NO/S:

Appeal No 6713 of 2019
DC No 4040 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave to Appeal

ORIGINATING COURT:

District Court at Brisbane – Unreported, 31 May 2019 (Koppenol DCJ)

DELIVERED ON:

21 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2019

JUDGES:

Morrison JA and Mullins AJA and Lyons SJA

ORDER:

Application for leave to appeal struck out for absence of jurisdiction.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where a domestic violence order was made against the first respondent in 2018 – where the first respondent appealed that decision to the District Court – where a judge of the District Court heard an interlocutory application and ordered that the substantive appeal in the District Court was to be heard afresh and in whole in accordance with s 168(2) of the Domestic and Family Violence Protection Act 2012 (Qld) (DV Act) – where the applicant (with the support of the second respondent) seeks leave to appeal that order on the basis that the decision is wrong and raises a significant question of law with respect to the circumstances in which the discretion to order appeals in domestic violence cases be heard afresh, should be exercised – where s 169(2) of the DV Act provides that “the decision of the appellate court upon appeal shall be final and conclusive” – whether the Court of Appeal has jurisdiction to hear an appeal from an interlocutory decision of the District Court with respect to an appeal pursuant to s 168 of the DV Act

District Court of Queensland Act 1967 (Qld), s 118, s 169
Domestic and Family Violence Protection Act 2012 (Qld), s 37, s 142(2), s 164, s 168, s 169
Uniform Civil Procedure Rules 1999 (Qld), r 751(b), r 765(1), r 766(1)(c)

CAO v HAT & Ors[2014] QCA 61, applied
Stinson v The Pharmacy Board of Queensland [1995] 1 Qd R 567; [1993] QCA 520, cited
ZXA v Commissioner of Police[2016] QCA 295, applied

COUNSEL:

P McCafferty QC, for the applicant
G Page QC for the first respondent
The second respondent appeared on her own behalf

SOLICITORS:

Queensland Police Service Legal Unit for the applicant
PHV Law Solicitors and Consultants for the first respondent
The second respondent appeared on her own behalf

MORRISON JA: I have read the reasons of Lyons SJA and agree with those reasons and the order Her Honour proposes.
MULLINS AJA: I agree with Lyons SJA.
LYONS SJA:
This Application
On 17 October 2018 Magistrate Bradford-Morgan made an Order pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (DV Act), against the first respondent HBY for the protection of the aggrieved second respondent. The period of the order…

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 Wbi v HBY

Details

AGLC: Wbi v HBY [2020] QCA 24
Case: [2020] QCA 24
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case of Wbi v HBY involved a domestic violence order made against the first respondent in 2018. The first respondent appealed this decision to the District Court, where a judge heard an interlocutory application. The judge ordered that the substantive appeal in the District Court was to be heard afresh and in its entirety, in accordance with section 168(2) of the Domestic and Family Violence Protection Act 2012 (Qld). The applicant, with the support of the second respondent, sought leave to appeal this order, arguing that the decision was incorrect and raised a significant question of law regarding the circumstances under which the discretion to order appeals in domestic violence cases should be exercised afresh. The applicant also referred to section 169(2) of the DV Act, which provides that "the decision of the appellate court upon appeal shall be final and conclusive."

The central legal issues the court had to address were whether the Court of Appeal had jurisdiction to hear an appeal from an interlocutory decision of the District Court concerning an appeal under section 168 of the DV Act. The applicant argued that the District Court's decision to order a fresh hearing of the substantive appeal raised important legal questions about the interpretation and application of the DV Act. However, the court had to determine whether such an interlocutory decision was appealable.

The court reasoned that the appeal from the interlocutory decision of the District Court was not within the jurisdiction of the Court of Appeal. The court found that section 169(2) of the DV Act, which mandates that the appellate court's decision upon appeal shall be final and conclusive, effectively precluded any appeal from an interlocutory decision concerning the substantive appeal. Consequently, the court concluded that it did not have the jurisdiction to hear the appeal from the interlocutory decision.

The application for leave to appeal was struck out due to the absence of jurisdiction. The court found that the District Court's interlocutory decision regarding the fresh hearing of the substantive appeal under section 168(2) of the DV Act was not appealable to the Court of Appeal, in light of the finality and conclusiveness clause in section 169(2) of the Act.

Orders

Orders of the court

Application for leave to appeal struck out for absence of jurisdiction.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	WBI v HBY & Anor [2020] QCA 24
PARTIES:	CONSTABLE WBI (applicant) v HBY (first respondent) LAP (second respondent)
FILE NO/S:	Appeal No 6713 of 2019 DC No 4040 of 2018
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave to Appeal
ORIGINATING COURT:	District Court at Brisbane – Unreported, 31 May 2019 (Koppenol DCJ)
DELIVERED ON:	21 February 2020
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2019
JUDGES:	Morrison JA and Mullins AJA and Lyons SJA
ORDER:	Application for leave to appeal struck out for absence of jurisdiction.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ORDERS SET ASIDE OR VARIED – where a domestic violence order was made against the first respondent in 2018 – where the first respondent appealed that decision to the District Court – where a judge of the District Court heard an interlocutory application and ordered that the substantive appeal in the District Court was to be heard afresh and in whole in accordance with s 168(2) of the Domestic and Family Violence Protection Act 2012 (Qld) (DV Act) – where the applicant (with the support of the second respondent) seeks leave to appeal that order on the basis that the decision is wrong and raises a significant question of law with respect to the circumstances in which the discretion to order appeals in domestic violence cases be heard afresh, should be exercised – where s 169(2) of the DV Act provides that “the decision of the appellate court upon appeal shall be final and conclusive” – whether the Court of Appeal has jurisdiction to hear an appeal from an interlocutory decision of the District Court with respect to an appeal pursuant to s 168 of the DV Act District Court of Queensland Act 1967 (Qld), s 118, s 169 Domestic and Family Violence Protection Act 2012 (Qld), s 37, s 142(2), s 164, s 168, s 169 Uniform Civil Procedure Rules 1999 (Qld), r 751(b), r 765(1), r 766(1)(c) CAO v HAT & Ors[2014] QCA 61, applied Stinson v The Pharmacy Board of Queensland [1995] 1 Qd R 567; [1993] QCA 520, cited ZXA v Commissioner of Police[2016] QCA 295, applied
COUNSEL:	P McCafferty QC, for the applicant G Page QC for the first respondent The second respondent appeared on her own behalf
SOLICITORS:	Queensland Police Service Legal Unit for the applicant PHV Law Solicitors and Consultants for the first respondent The second respondent appeared on her own behalf