DISTRICT COURT OF QUEENSLAND

1. [1]
   On 5 August 2008 a protection order under the Domestic and Family Violence Protection Act 1989 (“the Act”) was made in the Magistrates Court at Wynnum against the appellant as respondent, in favour of the respondent as aggrieved person.  This is an appeal pursuant to Part 5 of the Act against that order.  The appeal was on the ground that the appellant was not accorded procedural fairness by the magistrate, which was conceded by the respondent.  When the appeal came on for hearing the appellant appeared in person and handed up a letter signed by the respondent and purporting to be witnessed by a solicitor which in substance accepted that the order made should be struck out, that is that the appeal should be allowed.  The respondent’s signature corresponded with the signature on his outline of submissions filed 16 January 2009, and the certificate of readiness filed 19 February 2009, and indeed on the application for a protection order filed in the Magistrates Court.  Having read the outlines and having looked at the transcript of the hearing, it was clear that the ground of appeal had been made out, and in the circumstances I allowed the appeal, set aside the protection order which had been made, and ordered that the respondent’s application be dismissed.  I said at the time that I would give written reasons for that decision.  These are those reasons.

2. [2]
   In response to the respondent’s application a temporary protection order was made on 29 April 2008 by a different magistrate, and with it was served on the appellant a summons to appear before the court at Wynnum at 9 am on 5 August 2008 “for mention”, although the summons went on to say that it was “so that you may be heard on the matter of the making of a protection order.”  The summons warned that if she did not appear the court might proceed to hear and determine the matter in her absence.  Plainly that was a summons issued under s 47 of the Act.  The appearance in the summons of the words “for mention” is a little puzzling, since the summons otherwise proceeded on the basis that the court was to hear and determine the matter on that date, and it did.  The summons contained a warning about the possibility of the matter being heard and determined in the respondent’s absence if she did not appear, which would be consistent with s 49 of the Act provided that on that day the court was “to hear and determine the matter of the application for a protection order.”

3. [3]
   On 5 August 2008 both parties appeared before the magistrate.  Neither was legally represented.  In fact the court went on to make a protection order,^[1] and, insofar as there was any hearing before it did so, that was what occurred on 5 August 2008.  Accordingly what happened then was supposed to have complied with s 48 of the Act, which deals with the situation where the respondent appears before the court that is to hear and determine the matter of an application for a protection order.  In those circumstances subsection (2) provides the court “may hear and determine the application” or may adjourn it or dismiss it.

The legislation

4. [4]
   The circumstances under which a protection order may be made are set out in s 20 of the Act.  That provides in subsection (1):

5. [5]
   It follows that, if a court is hearing and determining the application for a protection order, the court must receive material which provides a proper basis for satisfaction of the matters required by subsection (1), and must make a finding that it is satisfied of those matters before it can make an order.  Further, it may do so only after a hearing which complies with the principles of procedural fairness.  That follows from the fact that the power to make a protection order is conferred on a court, the fact that s 48 speaks of the court hearing and determining the matter, that is to say determining it only after it has been heard, and the fact that there is no provision in the Act which excludes the obligation to comply with the rules of procedural fairness.

6. [6]
   As well, making a protection order is a serious step to take. Such an order may, for example, prohibit a person from entering, attempting to enter, or remaining in premises even though the person owns or has another legal or equitable interest in the premises, or even from approaching within a stated distance of the premises: s 25(3)(b).  It can prevent a person from approaching within a stated distance of a named person, or from contacting a named person, or from locating or attempting to locate that person:  s 25(3)(c), (d), (e).  In addition, it can require a respondent to return property to the aggrieved, or allow an aggrieved to recover property:  s 25(4).  The order has serious consequences for a person who holds or wishes to hold a licence under the Weapons Act.  It may prohibit a person from possessing a thing, possession of which would otherwise be lawful:  s 26.^[2]  A breach of a protection order is a criminal offence if the respondent was present when the order was made, or was served with a copy of the order, or was told about it by a police officer, and is potentially punishable by a term of imprisonment; it is not uncommon for terms of imprisonment to be imposed.  In these circumstances making such an order is plainly a serious matter, so that one would expect the rules of procedural fairness to apply.^[3]

7. [7]
   There is also the consideration that by s 38(2)(a) the provisions of the Justices Act 1886 apply to the proceeding unless the application of that Act is inconsistent with the Act.  One of the provisions of the Justices Act is s 146(1), which provides for the course of a summary trial if the defendant pleads not guilty, and contemplates that witnesses will be heard for the complainant, and then witnesses heard for the defendant.  Section 148 also provides that, in such matters, the procedure for examination and cross‑examination of witnesses and addressing the court is to be the same as in the Supreme Court on the trial of an issue of fact in an action at law.

8. [8]
   To some extent these procedures are modified by the terms of s 84(2) that, in proceedings with a view to making a protection order, “the court … may inform itself … in such manner as it … thinks fit and is not bound by the rules or practice as to evidence.”  In addition s 84(3) provides expressly:

“The court or magistrate need not have the personal evidence of the aggrieved before making a domestic violence order.”

9. [9]
   Provisions of this nature are familiar, and they do not exclude an obligation to accord procedural fairness.^[4]  Nor do they have the effect that an order can be made without any proper basis; the position is simply that the formal rules of evidence do not apply, so that it would be open, for example, in an appropriate case to receive material which would ordinarily be excluded as hearsay, or to receive evidence in written form.  But there must still be evidence, in the sense of there being some material put before the court which provides a rational basis for arriving at the state of satisfaction contemplated by s 20, and it must be put before a court in a way which gives the opposite party the opportunity to challenge that evidence, and to put the opposite party’s case in relation to the matter.

10. [10]
    Ordinarily, therefore, one would expect that the hearing of an application under the Act, where the respondent appeared and contested the matter, would proceed in much the same way as a civil trial; the applicant would give evidence or call evidence, and the applicant’s witnesses would be cross‑examined by the respondent, and the respondent would then give or call evidence, and be subject to cross‑examination.  One would expect that the hearing contemplated by s 48 would be a hearing in the conventional sense.  I note that s 39 of the Act contains a mechanism by which a person can be summoned to give evidence as a witness, and the section contemplates that that person will give evidence as a witness at a hearing on oath or affirmation.

11. [11]
    In BB v Liebsanft [2003] QSC 326 Mackenzie J referred to the specific provisions dealing with a temporary protection order, particularly s 39A, which indicates that such an order can be made without hearing full evidence:  see [14]-[16].  But at [39]-[41] his Honour did speak of the matters raised by the applicant as being “resolved at a full hearing” [39] and “his having the opportunity to have the evidence upon which [the temporary protection order] was based tested.” [41].  This suggests that he contemplated that there would be a proper hearing before a protection order was made, involving the giving of evidence in support of the order which could then be tested by cross‑examination, and giving him the opportunity to give evidence in response.  The matter subsequently came before the Court of Appeal, somewhat indirectly; in [2004] QCA 68, on an application for security for costs, McPherson JA discussed the merits of the appeal and the circumstance of the matter in some detail, and at [9] spoke of “a complete hearing of all of the evidence.”

12. [12]
    Ultimately the notice of appeal was struck out as incompetent and an application for an extension of time within which to seek leave to appeal was also struck out: [2004] QCA 267. Although the decision in that matter concerned what had to occur or could occur before a temporary protection order was made, it seems to me that these comments indicate a clear judicial expectation that a protection order would not be made without a full and proper hearing. This provides support for the proposition that the principles of procedural fairness apply in these circumstances, and that those principles in this context do require a proper hearing, where there is evidence put forward in support of the application which can be tested, and an opportunity to present an opposing case by way of evidence.

The hearing

13. [13]
    It is clear that in this case the appellant was not consenting to the respondent’s application. One of the first things raised by the magistrate was whether an order was to be made against the appellant by consent, and the appellant^[5] clearly indicated that she was not consenting: p 2.  Following that the magistrate heard some unsworn allegations from the respondent, and then asked whether the relationship was over, which the appellant accepted.  He also enquired whether matters had been settled in the Family Court, and was told they had not, and commented that “It may be important to have an order in place at least until that matter is finalised.” (p 3)  When that proposition received the assent of the respondent, he continued:

“There’s probably no reason why the two basic terms can’t continue in a protection order over the next two years.”

14. [14]
    That is not at all the correct approach in a proceeding under the Act; the question is whether the court is satisfied of the matters referred to in s 20 of the Act, and if so, whether the court considers that it is appropriate to make a protection order.  One does not start with the presumption that such an order is a good idea, even just in cases where the relationship is over.  That is certainly no substitute for procedural fairness, and no excuse for not complying with its principles.^[6]

15. [15]
    There was then a discussion about the children, in the course of which a couple of things were said by the respondent which could amount to allegations against the appellant. At one point (p 4) the appellant specifically asked:  “Could I reply to that allegation, please?”  In response the magistrate pointed out that that was all it was, an allegation, but then went on to a lengthy discussion about how a question about the welfare of a child could come to the attention of some state government department, before continuing:

“Now these procedures have always been there.  Now whether that is true or not, X, doesn’t really interest me in relation to this application.  All I am trying to resolve is the conflict between you and Y.  Now, I’m going to grant the order.  It will be equally based so that you’re both on an equal footing.  The two basic terms will apply to both of you.”

16. [16]
    It is difficult to believe that there is not something missing from this transcript, but the appellant did confirm that the hearing proceeded in this way. It strikes me as a wholly inappropriate approach to an application under this statute. It was certainly no part of the magistrate’s function to try to resolve the conflict between the parties; the magistrate’s statutory function and obligation was to hear and determine applications for protection orders, by deciding in each case whether he was satisfied of the matters referred to in s 20 of the Act, and if so whether it was appropriate to make an order.  When a jurisdiction of this nature is conferred on a court and a particular application under the Act comes before a magistrate, the duty of the magistrate is to hear and determine it according to law and in a proper and judicial fashion, not to act as some sort of domestic counsellor.

17. [17]
    The fact that an order was made against each of the parties was no substitute for a proper determination in each case of whether there was an appropriate basis for making an order, and whether such an order should be made. The magistrate’s attitude seems to have been that it does not matter what you do so long as you are even handed, and there is nothing whatever in the Act to provide any support for that proposition. Indeed, the whole point of the Act is to deal with a situation where one person in a relationship is subjecting another person to domestic violence, with a view to stopping that occurring: s 3A.  The focus of the Act is on a relationship where one party is doing the wrong thing to the other.  Obviously in a particular case it may be that domestic violence is being committed by each of the parties in the relationship, and in such circumstances cross orders may be appropriate; but whether they are appropriate in a particular case requires a determination in respect of each of those applications in accordance with s 20, and whether the requirements of s 20 are satisfied in one application will have nothing to do with whether they are satisfied in the other.

18. [18]
    There is a good deal more in the transcript, but nothing which suggests that at any point the magistrate rectified the earlier errors. There was no attempt to identify relevant issues for the purpose of s 20, in relation to either of the parties, and certainly nothing in the way of reasons for, or any sort of justification of, the orders which were made; it was more in the nature of a cosy chat about the problems the parties were experiencing.  Some of what went on amounted to the respondent’s rehearsing the sort of things that he might want to say in proceedings under the Family Law Act in relation to the parenting of the children, the relevance of which to the proceedings before the magistrate never emerged.

19. [19]
    Certainly nothing in the way of reasons for the orders that were made were ever given by the magistrate. The closest approach to something relevant was some explanation of the terms of the order, including that it did not provide that one of them was not to come into the other’s presence. The magistrate might have thought it was a good idea to give these people a good talking to, and to try to get them on the right track, but that was not his function; it was certainly not a justification for making any orders under the Act, or an acceptable substitute for a proper hearing and determination of the applications before him.

20. [20]
    It follows, therefore, that the magistrate did not conduct any proper hearing of these applications, and in particular did not give the appellant the opportunity either to test the case that was made against her or to contradict it, or to make submissions in support of the proposition that an order should not be made. That was essential to the proper performance of the judicial process. A more comprehensive failure of the principle of procedural fairness it is difficult to imagine.^[7]  What was said clearly demonstrated that there was a complete failure to direct attention to the statutory criteria for the order, so that the magistrate’s whole approach to the question of whether an order should be made was erroneous.  Nothing like a proper hearing occurred.  It is hardly necessary to add that nothing in the way of proper reasons were given; there were no findings of fact, and no explanation of the basis upon which the requirements for s 20 were satisfied.

21. [21]
    Plainly reasons for a decision to make an order under this Act should always be given. The existence of a right of appeal confirms the necessity for reasons so that the appellate court will be in a position to know whether there has been an error in the approach of the trial court.^[8]  Not all hearings will be as conspicuously erroneous as this one.  The appeal is an appeal by way of rehearing on the record:  s 65(1).  But that does not mean that the findings and conclusions of the magistrate are irrelevant, particularly in circumstances where there are findings about matters of credibility.^[9]  It is therefore important that reasons be given in these matters.

22. [22]
    That, however, is the least of the problems in this case, since it is clear enough from the transcript that there was a complete failure to approach the matter in anything like an appropriate way. There was certainly a breach of the rules of procedural fairness, in that the appellant was not accorded a proper hearing and was not given the proper opportunity to present her case and test the case against her. There was no identification of what the magistrate was going to act on as evidence, in the sense of material which tended logically to show the existence or non‑existence of facts relevant to the issues to be determined.^[10]  The appellant was never given the opportunity to test that material, or to present contrary material.  The magistrate did not identify the relevant issues to the parties, and receive submissions on them.  The magistrate did not consider whether the factual basis existed which permitted an order to be made, and if so, whether it was in all the circumstances appropriate to make any and what order.  Finally, the magistrate did not give reasons for the decision made.

Relief

23. [23]
    Section 66 of the Act deals with the powers of this court on appeal.  If the appeal is allowed, the order to which the appeal relates may be discharged or varied, and I may make the order or decision I consider should have been made.  There is no power to declare the decision a nullity, and it is therefore inappropriate that I consider whether there was a jurisdictional error which produced such a result.^[11]  Clearly, in my opinion, the appropriate course, within the range of orders available to me under s 66(1), was to discharge the order that was made against the appellant.  As to what order should have been made, under s 65 I can only proceed on the basis of the record, and that record does not contain any material which provides a proper basis for making an order under s 20.  In those circumstances the order which should have been made was that the application for a protection order be dismissed.  There is no express power to send the matter back for a proper hearing before a magistrate, and a power of that nature is not one that will be implied.^[12]  Hence, the orders that I made on 24 March 2009.