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QAX v SNP[2018] QDC 255

DISTRICT COURT OF QUEENSLAND

CITATION:

QAX v SNP [2018] QDC 255

PARTIES:

QAX

(appellant)

v

SNP

(respondent)

FILE NO/S:

Appeal BD2920/18; MAG-00072883/18(7)

DIVISION:

 

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Cleveland

DELIVERED ON:

7 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

7 December 2018

JUDGE:

Andrews SC DCJ

ORDER:

1. Appeal allowed

2. Order that the whole of both orders made against the appellant in the Cleveland Magistrates Court on 18 July 2018 be set aside in the matter the subject of this appeal

CATCHWORDS:

APPEAL AND NEW TRIAL – where protection order made – where hearing prior to time advised – whether natural justice denied – whether to set aside protection order – whether the court may order a refund of the costs paid to institute the appeal.

Domestic and Family Violence Protection Act 2012 s 168(2)

COUNSEL:

Appellant for himself

SOLICITORS:

 
  1. [1]
    On 18 July 2018 in the Magistrates Court at Cleveland his Honour, Magistrate Sarra, made a protection order against the appellant on the application of the respondent aggrieved. It was part of the order that it should continue in force to and including 17 July 2023.
  1. [2]
    Unbeknown to his Honour, the appellant had been given written notice that the matter was to be mentioned at 11am on that day. The hearing took place before 11am. The appellant intended to appear, to be heard and to contest the matter. He was there and awaiting the hearing at 11:00am. I am satisfied that through an administrative slip, the appellant was denied the opportunity to be heard.
  1. [3]
    It is difficult for such an administrative error to be corrected by another Magistrate. The error was detected on the same day. Her Honour, Magistrate Vasta, took a practical step with a view to rectifying some of the prejudice to the appellant. Her Honour varied the order which had been made earlier in the day so that it would continue in force to and including 18 July 2018. The aggrieved has since withdrawn her application for a protection order against the appellant. The appellant is concerned that there will remain a record of an order having been made against the appellant. For that reason he maintains his appeal.
  1. [4]
    The appellant makes no complaint about the conduct of the “aggrieved” who is the respondent to the appeal. He does not seek costs against the respondent. In those circumstances the respondent has indicated through her solicitor that she neither wishes to resist the appeal nor to otherwise participate in the hearing.
  1. [5]
    The Commissioner of Police is not exercising his discretion to be heard on the appeal.
  1. [6]
    It was necessary for the appellant to put fresh evidence before me about the events at the Cleveland Magistrates Court on 18 July 2018 so that I could be informed of the circumstances under which the appellant was denied natural justice. It is within my power to receive such evidence pursuant to s 168(2) of the Domestic and Family Violence Protection Act 2012.
  1. [7]
    The appellant seeks an order that the two orders be set aside because he was denied natural justice when the first order was made. I accept that the orders should be set aside.
  1. [8]
    The appellant also seeks an order that I waive and refund the fee which he paid to institute an appeal and order that it be repaid to him. The remedy has not been thought through. There is no evidence about the payment or the process. No registrar has been served as a respondent. The appellant’s submission implies that he has paid a fee of $1,285 to a registry to initiate this appeal. I assume for the purpose of this exercise that the appellant could establish that he has paid the fee. He relies upon s 69(1) of the District Court of Queensland Act 1967 and submits “there appears no reason why the power to (order a refund) is not part of the usual costs discretion given the broad terminology of s 69(1)…”.  Regrettably, I am not persuaded that I have the power to direct an officer of the Court to pay an amount of money to the appellant which is the equivalent of an amount of money paid by the appellant as fees.  Perhaps if it was held in trust I could order its return. An order against a registrar, to “refund” a fee, might be practical if the registrar still had the fee or maintained a trust account for the fee. I am not satisfied that any registrar retains the fee. It may have been paid into an account, mixed with other funds and been used. I am not satisfied whether or not it can be traced. The application may be intended to be for an order that a registrar do something such as withdraw an equivalent sum from an account and pay the appellant. I should first be satisfied that there is an account in funds.
  1. [9]
    The appellant should not have been put to this trouble or expense. But I am not satisfied that I have the power to make the order sought for a refund of money or for the payment of an equivalent sum or that I may make an order against a registrar or other entity to pay money without the appellant having first identified and served the person or entity and without the court giving that person or entity the opportunity to be heard.
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Editorial Notes

  • Published Case Name:

    QAX v SNP

  • Shortened Case Name:

    QAX v SNP

  • MNC:

    [2018] QDC 255

  • Court:

    QDC

  • Judge(s):

    Andrews DCJ

  • Date:

    07 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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