Wylie v AMN

[2022] QDC 241

DISTRICT COURT OF QUEENSLAND

CITATION: 

 Wylie v AMN [2022] QDC 241

PARTIES: 

WYLIE
(Appellant)

v

AMN
(Respondent)

FILE NO:

2799/32

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT: 

Pine Rivers Magistrates Court

DELIVERED ON:

26 October 2022

DELIVERED AT:

Brisbane

HEARING DATE: 

23 May 2022

JUDGE:

Porter KC DCJ

ORDER:

1.   The appellants be granted an extension of time to file the notice of appeal to the date of filing

2.   Appeal be upheld

3.   Orders made by her Honour on 23 September 2021 be set aside

4.   Matter be remitted to the Magistrates Court in Caboolture to be heard and determined according to law before a different Magistrate

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – APPLICATION FOR A PROTECTION ORDER – where the appellant appeals the decision made by the Magistrate to dismiss an application for a protection order under section 37 of the Domestic and Family Violence Protection Act 2012 on a summary basis – whether a Magistrate has jurisdiction to hear an application for a protection order based on a Police Protection Notice if that Notice is not filed in the district dictated by s. 111(a) of the Act.

INFERIOR COURTS – PROCEDURE – SUMMARY DISMISSAL – where the Magistrate summarily dismissed the application   – powers of the Magistrates Court to dismiss proceedings under the Domestic and Family Violence Protection Act 2012 considered – the basis of the power of the Magistrates Court summarily to dismiss and application for a protection order considered– where there were substantial contested issues of fact– where the Court initiated the summary dismissal of the application of its own motion – where   the Magistrate erred in dismissing the application without giving the appellant/ applicant an opportunity to cross-examine in respect of contested issues of fact  – where the Magistrate erred in failing to give the appellant/applicant a reasonable opportunity to consider and respond to the summary dismissal raised by the Court of its own motion .   

COUNSEL:

M. O’Brien for the appellant

F. Carroll for the respondent

SOLICITORS:

Queensland Police Service Legal Unit for the appellant

Contents

Introduction

Background
The hearings before the learned Magistrate
Delay in filing the Notice of Appeal
Nature of the Appeal
The jurisdictional issue
The summary dismissal issue

Introduction

1. This is an appeal from a decision of the Magistrates Court at Pine Rivers to dismiss the application for a Protection Order by the appellant Senior Constable Abbie Wylie (SC Wylie) for a protection order under the Domestic and Family Violence Protection Act 2012 (‘the DFVP Act’).   While several grounds were advanced, the appeal ultimately came down to two issues:

   (a)Whether the learned Magistrate had erred in assuming her Honour had jurisdiction to hear and determine the application in circumstances where the Police Protection Notice initiating the proceeding was served at the Caboolture Police Station, but was filed in the Pine Rivers Magistrates Court; and

   (b)Whether the Magistrate erred in dismissing the application summarily, without giving the appellant/applicant the opportunity to cross examine witnesses for…