Domestic Violence: Stay of proceedings for abuse of process

Does the Magistrates Court have the power to grant a permanent stay of proceedings due to an abuse of process?

In a recent appeal to a decision made by the Southport Magistrates Court, the District Court of Queensland discussed whether Magistrates Courts have the power to stay applications made under the Domestic and Family Violence Protection Act 2012 (“DFVP Act”).

The matter of HDI v HJQ [2020] QDC 83 involved a couple who had a lengthy history of litigation before both the Magistrates Courts (for domestic violence applications) and the Family Courts (for both parenting and property matters). The appellant was the husband, who had filed an Application to Vary a Domestic Violence Order in the Southport Magistrates Court. The application sought to remove the parties’ two children from that order, and to remove a number of conditions. 

The matter was listed for final hearing on 8 August 2019. At that final hearing, the solicitors for the respondent (wife) made an oral application for the Magistrate to permanently stay the application on the grounds that it was an abuse of process. The Magistrate heard submissions from both parties on this point and also considered the material filed before adjourning the hearing to 14 August 2019. 

On 14 August 2019, the Magistrate granted a permanent stay of the husband’s application to vary and as such, the contested final hearing did not proceed.

The husband filed a Notice of Appeal on 27 August 2019. A number of grounds in the appeal were nonsensical however, the appellant included within his written submissions a contention that the discretion applied by the acting Magistrate (to stay the application) was not justified by law. The District Court of Queensland considered this to be an active ground of appeal and as such, reviewed both the relevant statutes and case law on the point.

In providing authority for the permanent stay of the application, the Magistrate had referred to the authority of SGLB v PAB [2015] QMC 8 (“SGLB”). Interestingly, this is the case mentioned in the Domestic and Family Violence Benchbook under Part 5.5 ‘Permanent Stay of Proceedings for an Abuse of Process’. That was a matter involving an application made under the DFVP Act. The District Court of Queensland highlighted important matters that were overlooked by the Magistrate in SGLB, such as the facts of the cases relied upon and a unanimous 2005 Queensland Court of Appeal decision that a Magistrate in Queensland has no implied power to stay committal proceedings.

The District Court of Queensland was therefore not satisfied that SGLB supports a finding that a Magistrate in Queensland has the power to grant a permanent stay of an application under the DFVP Act.

Relevant statutes were discussed together with the clear power of the Magistrates Court to dismiss applications made pursuant to the DFVP Act. The DFVP Act provides that the Magistrates Court may summarily dismiss applications that are frivolous, vexatious or an abuse of process.

The Appeal was allowed and an order made that the Magistrate’s staying of the application be set aside as a nullity.

So what do we take away from this recent decision? Don’t apply for a permanent stay – apply for a dismissal under the relevant sections of the DFVP Act.

For the full judgment please click the following link:

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