ZTP v BBY - [2023] QDC 59

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

GKE v EUT [2014] QDC 248

House v The King (1936) 55 CLR 499

MDE v MLG [2015] QDC 151

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…

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 ZTP v BBY

Details

AGLC: ZTP v BBY [2023] QDC 59
Case: [2023] QDC 59
Decision Date: 23 February 2023 (ex tempore)

CaseChat Overview and Summary

The appeal before the Court was brought by ZTP, who challenged a final protection order made against them by the Magistrates Court. The order was made following an application by BBY, who sought protection from ZTP due to alleged domestic violence. The Court of Appeal was tasked with determining whether the Magistrate made adequate findings of fact, whether the Magistrate erred in finding a final protection order necessary, and whether the matter should be remitted back to the Magistrates Court or reheard by the Court of Appeal.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 GKE v EUT [2014] QDC 248 House v The King (1936) 55 CLR 499 MDE v MLG [2015] QDC 151 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