LKL v BSL[2015] QDC 337

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On Friday 17 October 2014 the appellant filed an application for a protection order at the Holland Park Magistrate’s Court. The application was signed by the appellant and witnessed as a statutory declaration.

2. [2]
   On the basis of that application, a temporary protection order was made.

3. [3]
   On 29 October 2014 the learned Magistrate made directions for the filing of affidavits and/or statements by the parties. The directions included:

“(1) that the evidence in chief of all witnesses shall, other than the original sworn application and otherwise ordered, be by way of affidavit.”

4. [4]
   The matter was listed for hearing on 28 January 2015. On 23 January 2015 the appellant sought an adjournment; that application was refused but that refusal is not the subject of this appeal.

5. [5]
   On 28 January 2015 Magistrate Strofield dismissed the application.

Grounds

6. [6]
   The grounds of appeal are effectively that the Magistrate made an error in law in ruling that the appellant had produced no evidence nor material on which he could make a determination and that she was denied natural justice.

The events at the Magistrate’s Court at Holland Park on 28 January 2015

7. [7]
   The appellant appeared unrepresented. The respondent was legally represented.

Early, on the learned Magistrate said: “now LKL (sic) there’s no material”.^[1]

The appellant replied that she had sought legal advice and that she had been advised she: “should just rely on my application”.

A little later the learned Magistrate said: “There was no objection to the temporary order continuing until the hearing, but here we are at the hearing date and there is no material LKL”.^[2]

Later he said: “…you don’t have any material LKL before the Court”.^[3]

The appellant replied: “I thought my application was the material.”

Bench: “Well that’s wrong I’m afraid”.^[4]

Later this interchange occurred:

Bench: “LKL there’s no material the application can’t go anywhere… the application/applications is going to be dismissed”.^[5]

The directions

8. [8]
   On 23 January 2015 the appellant argues that direction (1) means that the Magistrate was indicating that the appellant could file affidavits, but if she chose not to do so, the original sworn application was still evidence and part of the material. Direction (2) provided:

“the aggrieved applicant must file all affidavit statements by the witnesses to be called by the applicant in support of the application”,

The appellant argues that direction (2) was not an imperative. The direction only required that if witnesses were to be called by the applicant, she must file affidavits. She did not call witnesses.

9. [9]
   Direction (3) provided that:

Discussion

10. [10]
    There is no doubt 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 the legislation and that the Court may do so only after a hearing which complies with the principles of procedural fairness.^[6]

11. [11]
    The legislation makes it clear that formal rules of evidence do not apply but there still must be evidence in the sense of there being some material put before the Court which provides a rational basis for the determination and it must be put before the Court in a way which gives the opposite party the opportunity to challenge that evidence and put the opposite party’s case in relation to the matter. Here the Magistrate ruled that there was no material before the Court. This was an error of law. The directions did not exclude the sworn application as evidence. Section 145(3) declares that:

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

Section 145(1)(b) provides that a court:

  “may inform itself in any way it considers appropriate.”

12. [12]
    As a result the learned Magistrate did not give consideration to the application and did not hear and determine the application.

Stay

13. [13]
    The appellant also sought a stay of the order dismissing the DVO application. The respondent opposes that application.

14. [14]
    Section 166 of the Act provides:

15. [15]
    The applicant for the stay bears the onus of showing that it is an “appropriate case”.^[7]To satisfy the Court that a stay is appropriate, the applicant must establish that the circumstance of the case are sufficient to disturb the ordinary and normal situation that a stay does not automatically flow from filing a notice of appeal.^[8]

16. [16]
    I find that there is nothing in the circumstances here which would establish that this is an appropriate case to grant a stay and therefore, the normal situation applies. I make this finding despite the fact that I have found the appeal made out. Even though the applicant is successful in her appeal, the refusal to grant a stay is no impediment to her later obtaining the benefit of a protection order pursuant to the Act. There is no material before me to support the proposition that a decision not to grant a stay could result in the applicant suffering irreversible loss or damage. The matters alleged in the application for a domestic violence order are matters that occurred between January and August 2014. There is no evidence that the conduct complained of has continued after that time.

Consequence of successful appeal

17. [17]
    Section 169 of the Act provides:

18. [18]
    Counsel for the respondent enthusiastically submitted that I should set aside the decision and substitute my own decision. I do not think that is a correct course of action. It is now established that the application is evidence capable of being taken into account by the Magistrate and it may be that the respondent sees fit to respond to it, and if so, he may be subjected to cross examination.

19. [19]
    This is not a matter where the Magistrate heard and determined the result and where the appeal is against some aspect of that considered determination. The matter simply has not yet been considered and determined. Elementary requirements of fairness demand that important procedural steps be followed. The omission to consider the application goes to the heart of the matter and therefore, the fairness of the ultimate disposal in the Magistrate’s Court.

20. [20]
    It is also clear to me that to ensure that justice is seen to be done it would be appropriate to order that any re-hearing of the matter be presided over by a different Magistrate.

The orders of the court are:

1. The appeal is upheld.

2. The application for a stay is dismissed.

3. The matter is remitted to the Magistrate’s Court to be presided over by a different Magistrate.