DISTRICT COURT OF QUEENSLAND
CITATION:
ZTP v BBY [2023] QDC 59
PARTIES:
ZTP
(Appellant)
v
BBY(Respondent)
FILE NO/S:
2044/22
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Holland Park
DELIVERED ON:
23 February 2023 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
20 February 2023
JUDGE:
MUIR DCJ
ORDERS:
1. The appeal is allowed.
2. The final protection order made on 26 July 2022 is set aside.
3. The temporary protection order made on 17 January 2022 is set aside.
4. The original application for a police protection order dated 10 November 2021 and filed in the Holland Park Mag Court in Nov 2021 is dismissed.
5. No order as to costs.
CATCHWORDS:
APPEAL AND NEW TRIAL - DOMESTIC VIOLENCE – APPEAL AGAINST FINAL PROTECTION ORDER – Whether the Magistrate failed to make adequate findings of fact underpinning her reasoning - Whether Magistrate erred in finding a Final Protection Order necessary or desirable to protect the aggrieved from domestic violence - Whether the matter should be remitted back to the Magistrates Court for hearing by another Magistrate or the Court should rehear the matter and substitute its own decision - Whether upon the Court rehearing the matter on the evidence below it is satisfied that a Protection Order is necessary or desirable
LEGISLATION:
Domestic and Family Violence Act 2012 (Qld) ss 37, 164, 168
CASES:
Bode v Commissioner of Police [2018] QCA 186
Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd [2022] QCA 266
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Edwards v Noble (1971) 125 CLR 296
House v The King (1936) 55 CLR 499
Robinson Helicopter Company Inc v McDermott [2016] 90 ALJR 679
COUNSEL:
Terry Morgans for the appellant
Susan Donkin for the respondent
SOLICITORS:
Springwood Lawyers for the appellant
Queensland Police Service Legal Unit for the respondent
Overview
This is an appeal under s 164 of the Domestic and Family Violence Act 2012 (Qld) (“the Act”) against the decision of a learned Magistrate at the Holland Park Magistrates Court on 26 July 2022 to make a two-year Protection Order against the appellant naming his de facto partner MNP as the aggrieved.
There are no children to the relationship and the relationship is an ongoing one of over six years.
The application for a final protection order was maintained by the second respondent who was the police officer who investigated a complaint from a neighbour of the appellant and MNP on 10 November 2021. A temporary protection order was taken out on 17 November 2021, and it was this order that was made final following a short, contested hearing before the Magistrate on 26 July 2022.
MNP opposed both the making of the temporary and the final order. She does not appear in this appeal.
The appellant does not challenge the existence of a relevant relationship under the…
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- AGLC
- ZTP v BBY [2023] QDC 59
- Case
- [2023] QDC 59
- Decision Date
CaseChat Overview and Summary
The Court examined whether the Magistrate sufficiently considered the evidence and made appropriate findings to support the issuance of the final protection order. It was found that the Magistrate failed to adequately address certain evidence and make necessary findings. The Court also considered whether the Magistrate erred in concluding that a final protection order was necessary or desirable to protect BBY from domestic violence. The Court concluded that the Magistrate's decision was not supported by the evidence and the order was not necessary or desirable.
The Court of Appeal allowed the appeal and set aside the final and temporary protection orders. The original application for a police protection order was dismissed. The Court did not order any costs. The matter has been remitted back to the Magistrates Court for reconsideration by another Magistrate, who must make appropriate findings of fact and reassess whether a protection order is necessary or desirable.
Orders
Orders of the court
1. The appeal is allowed.
2. The final protection order made on 26 July 2022 is set aside.
3. The temporary protection order made on 17 January 2022 is set aside.
4. The original application for a police protection order dated 10 November 2021 and filed in the Holland Park Mag Court in Nov 2021 is dismissed.
5. No order as to costs.
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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