WBI v HBY & Anor

In this matter, which concerned an application for leave to appeal an interlocutory decision of the District Court made in its appellate jurisdiction under s 169(1) of the Domestic and Family Violence Protection Act 2012, the Court of Appeal held that, like final orders made on such an appeal, such orders could not be the subject of an appeal to the Court of Appeal. This was because s 169(2) provided that the decision of the District Court “shall be final and conclusive”

Morrison JA and Mullins JA and Lyons SJA

21 February 2020

Following an application by the applicant police officer, WBI, a magistrate made an order under s 37 of the Domestic and Family Violence Protection Act 2012 (the DFVPA) against the first respondent, HBY, for the protection of the aggrieved second respondent. [1], [9]–[16]. HBY appealed to the District Court. [17]. HBY also sought an order under s 168(2) of the DFVPA that “the appeal be heard afresh and in whole”. [18].

Before the District Court judge, HBY argued that the appeal should be heard de novo because a large amount of evidence had subsequently been disclosed following the original hearing and, in particular, information relating to the second respondent’s financial position had allegedly been intentionally withheld from the magistrate. [20]–[23]. The District Court judge acceded to these submissions, and ordered that the appeal proceed as a de novo hearing. [23]. WBI sought leave to appeal the District Court decision, challenging the submissions that these documents had not been available at the time of the original hearing and that these were sufficient grounds for a de novo hearing. [26]–[28].

Senior Judge Administrator Lyons (with whom Morrison JA and Mullins JA agreed) considered that there was “a real issue as to whether the … discretion miscarried”. [29]–[32]. However, there was a preliminary issue as to whether the Court of Appeal had jurisdiction to hear an appeal from an interlocutory decision of the District Court on an appeal under s 169 of the DFVPA. [33].

Pursuant to s 169(2) of the DFVPA, a decision of the District Court on an appeal under the DFVPA “shall be final and conclusive”. [34]. Relying on ZXA v Commissioner of Police [2016] QCA 295 and CAO v HAT [2014] QCA 61, her Honour noted that s 118(3) of the District Court of Queensland Act 1967, which permitted an appeal to the Court of Appeal with leave from a decision of the District Court in its original or appellate jurisdiction, did not apply to a decision of the District Court made under s 169(1) of the DFVPA. The plain words of s 169(2) clearly established that there was to be no further appeal from a decision of the District Court on an appeal made under s 169(1) of the DFVPA. [35]–[39].

Contrary to WBI’s submissions, on a proper construction s 169(2) also precluded an appeal against interlocutory orders made by the District Court under s 169(1) of the DFVPA. As WBI conceded, it would be unusual to be able to appeal interlocutory orders to the Court of Appeal, but not final orders.[40]. The interlocutory orders could, however, be revisited by the District Court judge that actually hears the appeal, it having not yet been heard. [23], [40].

In the result, the application for leave to appeal was struck out for absence of jurisdiction. [41].

S Walpole