XNR v AMF - [2022] QDC 197

DISTRICT COURT OF QUEENSLAND

CITATION: XNR v AMF [2022] QDC 197

PARTIES:
XNR

(Appellant)

v

AMF

(Respondent)

FILENO/S: BD 42/2022

DIVISION: PROCEEDING:
Appellate

Appeal pursuant to section 164 of the Domestic and Family Violence Protection Act 2012 (Qld)

DELIVEREDON: 25 August 2022

DELIVEREDAT: Brisbane

HEARINGDATE: On the papers

JUDGE: Allen QC DCJ

ORDERS:
1.   The appeal is allowed to the extent of setting aside the order that the appellant pay the respondent the amount of $24,766.50 in costs.

2.   The decision to dismiss the appellant’s application for a protection order is confirmed.

3.   No order as to costs of the appeal.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL

PRINCIPLES – RIGHT OF APPEAL – where appellant applied for a protection order in the Magistrates Court – where appellant failed to appear at time application listed for hearing – where the presiding Acting Magistrate, in absence of appellant, dismissed his application for a protection order – where both parties to the appeal jointly submit that section 164 of the Domestic and Family Violence Protection Act 2012 (Qld) does not provide an avenue of appeal against an order dismissing an application without deciding it pursuant to section 38(3) of the Act – whether that part of the appeal is competent – whether that part of the appeal should be dismissed

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES –
OTHER MATTERS – COSTS – where appellant applied for a protection order in the Magistrates Court – where appellant failed to appear at time application listed for

hearing – where the presiding Acting Magistrate, in

absence of appellant, dismissed his application for a protection order and ordered that the appellant pay the indemnity costs of the respondent to the application – where both parties to the appeal jointly submit that the Acting Magistrate erred in making the costs order – whether the appeal should be allowed to the extent of setting aside the costs order

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TRIAL – ABSENCE OF

PARTY – where appellant applied for a protection order in the Magistrates Court – where appellant failed to appear at time application listed for hearing – where the presiding Acting Magistrate, in absence of appellant, dismissed his application for a protection order and ordered that the appellant pay the indemnity costs of the respondent to the application – where appellant and his solicitor were, at most, 30 minutes late for hearing – where the Acting Magistrate acted precipitately in dismissing the application and ordering costs in the absence of the appellant – haste makes waste

Domestic and Family Violence Protection Act 2012

(Qld), s 38, s 157, s 164

NBE v PRT & Anor [2018] QDC 29

SOLICITORS:

i-Global Lawyers for the appellant

Robertson O’Gorman Solicitors for the respondent

The appellant applied in the Magistrates Court at Brisbane for a protection order pursuant to the Domestic and Family Violence Protection Act

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 XNR v AMF

Details

AGLC: XNR v AMF [2022] QDC 197
Case: [2022] QDC 197
Decision Date: 25 August 2022

CaseChat Overview and Summary

The appeal, XNR v AMF, involves the dismissal of an application for a protection order by the Magistrates Court. The appellant, XNR, applied for the protection order but failed to appear for the hearing, leading to the dismissal of the application by the presiding Acting Magistrate. The appeal concerns the right to appeal the dismissal of the application, specifically under section 164 of the Domestic and Family Violence Protection Act 2012 (Qld). Both parties agree that section 164 does not provide a basis for appealing the dismissal of an application without it being decided on its merits, as per section 38(3) of the Act. The court had to determine whether this part of the appeal was valid and whether it should be dismissed.

The court examined whether section 164 of the Act allowed for an appeal against the dismissal of an application without a decision on its merits. The court concluded that the appeal was not competent in that respect, as the Act does not provide such an avenue. The court also had to consider whether the appeal should be dismissed based on the agreement of the parties that the law did not support this aspect of the appeal. The court noted that the dismissal of the application was proper since the appellant did not attend the hearing. However, the court found that the order for the appellant to pay the respondent’s costs in the amount of $24,766.50 was improper, as it was made without proper consideration of the appellant’s inability to pay.

The court allowed the appeal to the extent of setting aside the order for the appellant to pay the respondent’s costs. The dismissal of the appellant’s application for a protection order was upheld. No order was made regarding the costs of the appeal. The court confirmed the dismissal of the application while correcting the erroneous cost order, ensuring the appellant was not unfairly burdened with costs without proper consideration.

Orders

Orders of the court

1. The appeal is allowed to the extent of setting aside the order that the appellant pay the respondent the amount of $24,766.50 in costs.

2. The decision to dismiss the appellant’s application for a protection order is confirmed.

3. No order as to costs of the appeal.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	XNR v AMF [2022] QDC 197
PARTIES:	XNR (Appellant)
v
AMF (Respondent)
FILENO/S:	BD 42/2022
DIVISION: PROCEEDING:	Appellate Appeal pursuant to section 164 of the Domestic and Family Violence Protection Act 2012 (Qld)
DELIVEREDON:	25 August 2022
DELIVEREDAT:	Brisbane
HEARINGDATE:	On the papers
JUDGE:	Allen QC DCJ
ORDERS:	1. The appeal is allowed to the extent of setting aside the order that the appellant pay the respondent the amount of $24,766.50 in costs. 2. The decision to dismiss the appellant’s application for a protection order is confirmed. 3. No order as to costs of the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where appellant applied for a protection order in the Magistrates Court – where appellant failed to appear at time application listed for hearing – where the presiding Acting Magistrate, in absence of appellant, dismissed his application for a protection order – where both parties to the appeal jointly submit that section 164 of the Domestic and Family Violence Protection Act 2012 (Qld) does not provide an avenue of appeal against an order dismissing an application without deciding it pursuant to section 38(3) of the Act – whether that part of the appeal is competent – whether that part of the appeal should be dismissed APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – PARTICULAR CASES – OTHER MATTERS – COSTS – where appellant applied for a protection order in the Magistrates Court – where appellant failed to appear at time application listed for hearing – where the presiding Acting Magistrate, in