BLJ v QLB[2018] QDC 14

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 8 August 2017, at a pre-trial mention, a protection order was made in the Brisbane Magistrates Court pursuant to s 37 of the Domestic Violence and Protection Act 2012 (‘the Act’).  It was made against the appellant in favour of the first respondent and their child.  The appellant was not present at the hearing.             
2. [2]
   The appellant appeals against the learned Magistrate’s decisions to dismiss his application to extend time for the filing of his affidavit material and to make the protection order, on the following bases:

1. (i)
   the appellant was denied procedural fairness;

2. (ii)
   the Magistrate erred in finding that the appellant had committed an act of domestic violence;

3. (iii)
   he Magistrate failed to find that the protection order was necessary or desirable; and

4. (iv)
   he Magistrate erred in finding that the protection order was necessary or desirable.

3. [3]
   At the hearing of the appeal, the appellant and the second respondent were represented.  The first respondent was not represented and did not appear.  The appeal was opposed by the second respondent.
4. [4]
   For the reasons set out below, the appeal should be allowed on the ground of procedural fairness and the matter remitted to the Brisbane Magistrates Court to be heard and determined according to law.   I have not considered it necessary to consider and determine the remaining grounds of appeal. 

Nature of the appeal

5. [5]
   Section 168(1) of the Act provides that an appeal must be determined on the evidence and proceedings of the court below.  In GKE v EUT^[1], McGill SC DCJ explained that an appeal to this Court is by way of rehearing.  It is well established that this court ought not to interfere with the orders made, unless satisfied they were vitiated by an error of principle, there has been a failure to appreciate a pertinent feature or there is otherwise a miscarriage of justice.
6. [6]
   Having said this, s 168(2) of the Act reposes a discretion in this appellate court to hear the appeal afresh, in whole or in part.
7. [7]
   The appellant has sought to adduce fresh evidence, namely an affidavit under his own hand, filed on 17 October 2017.   While a party is usually bound by the conduct of his or her own case^[2], fresh evidence can be received in exceptional circumstances, including where the ‘interests of justice unequivocally demand it’^[3].
8. [8]
   At the appeal hearing, the second respondent did not object to the affidavit of the appellant being received by the court, in so far as the appellant deposes to the reasons why he did not file his affidavit material by 21 July 2017, and also for his non-attendance at the pre-trial mention on 8 August 2017.  This is an appropriate concession, in circumstances where the appellant was not present at the hearing.
9. [9]
   I consider it is appropriate to receive the remainder of the appellant’s affidavit for the limited purpose of determining whether the appellant has a material argument which, if heard on the merits, might reasonably affect the determination of the rights of the parties, in a way different from that in the orders made by the learned Magistrate.  
10. [10]
    To that extent, the appeal is heard ‘afresh’.
11. [11]
    Pursuant to s 169 of the Act, in deciding this appeal, the Court can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court.

Relevant background

12. [12]
    The appellant and first respondent have never been married, but have a young daughter together.  They resided together between October 2012 and May 2017.
13. [13]
    On 17 May 2017, police were called to attend the residence of the parties in Auchenflower. The first respondent stated to police that she had seen photographs of women on the appellant's iPad, which their young daughter used. She confronted the appellant and an argument ensued whereby the appellant said to her ‘you're nothing’, pushed her over whilst holding her arms, punched her in the nose and bent her fingers back causing pain. She provided police with a photograph of her injuries. The first respondent advised that there had been previous incidents of domestic violence, including an incident in June 2016 whereby the appellant put his whole weight on a stick he held against her throat, whilst making a comment about killing her; another incident when he coerced her into taking a loan out for a property in Noosa; and a further incident where he bullied her into withdrawing a previous application for a protection order.
14. [14]
    The appellant stated to police that the first respondent was intoxicated and had been attacking him intermittently for an hour including punching him, throwing a glasses case at him, hitting him with a bag and threatening to kill him. He admitted that he grabbed her hands to stop her hitting him and her hand 'doubled back and hit her face'. At that point he had phoned police.
15. [15]
    Police issued a Police Protection Notice to the appellant naming the first respondent as the aggrieved and made an application for a Protection Order naming the appellant as the aggrieved.  Both applications were listed for 23 May 2017, at which time the appellant was represented by a solicitor and the first respondent was represented by a duty lawyer from Legal Aid.  The Acting Magistrate made temporary protection orders on each application.  Directions were also made for the hearing of the applications, namely that:

1. (i)
   the parties file and serve upon the other all affidavits and/or statements by all witnesses on or before 30 June 2017;
2. (ii)
   the parties file and serve upon the other all affidavits and/or statements by all witnesses in reply on or before 31 July 2017;
3. (iii)
   the matters be reviewed on 8 August 2017; and
4. (iv)
   the applications for the ‘final’ protection orders were set down for hearing on 26 September 2017.  

16. [16]
    The Registry sent each party a copy of those directions and a Notice of Adjournment confirming the review date of 8 August 2017, and stating that if they failed to appear, a domestic violence order could be made in their absence.  
17. [17]
    On 20 June 2017, the appellant filed an application to vary the temporary protection order on the basis that the parties were no longer living at the same address.  This application was granted on 28 June 2017.  The matter was also listed for a mention on 5 July 2017, to give the parties the opportunity to agree on the final orders to be made. 
18. [18]
    At the mention on 5 July 2017, the appellant appeared in person.  There is no transcript of what transpired at the hearing.  The parties had been unable to agree on final orders and a number of directions were made about preparing and presenting evidence at the hearing for the applications.  The directions provided for extensions of time for the filing of material by the parties.  The date for the parties to file and serve upon the other all affidavits and/or statements by all witnesses was extended from 30 June 2017 to 21 July 2017.  The date for the parties to file and serve upon the other all affidavits and/or statements by all witnesses in reply was extended from 31 July 2017 to 4 August 2017.  The written directions also stated that the second respondent was to serve its Brief of Evidence on the parties by 14 July 2017, and the parties were required to apply to the court for any subpoenas prior to 25 August 2017.  The file also contains correspondence from Legal Aid to the Court which suggests that at the time of this mention, the Magistrate granted the first respondent’s request for a subpoena to the second respondent.  This was filed in the court on 26 June 2017.  The directions expressly state that the hearing in relation to the applications for final protection orders remained listed  for 26 September 2017 and that if either party failed to attend on this date, that the court may make an order in that party’s absence. 
19. [19]
    The directions make no mention of the matter being adjourned until 8 August 2017 for a pre-trial review.  There is no evidence that this court date was mentioned at the hearing on 5 July 2017.  The appellant deposes that it was not.  Having said this, a Notice of Adjournment from the court was posted to the appellant at his residential address.  The notice states that the applications had been adjourned until 9am on 8 August 2017, and that if he failed to appear, a domestic violence order could be made in his absence.   The appellant deposes to the fact that he does not recall reading this notice and that his attention was focussed on the written directions made on 5 July 2017.  
20. [20]
    While the QPS Brief of Evidence was posted to the address of the solicitors on the record for the appellant on 12 July 2017, he deposes to not having received those documents until 25 July 2017. 
21. [21]
    By email dated 26 July 2017, the appellant informed the second respondent that he had only received the Brief of Evidence from his previous solicitors on the previous day and that he was endeavouring to prepare his affidavit material, in circumstances where he had applied for Legal Aid and that his application was being reviewed.  This email was also forwarded to the Brisbane Magistrates Court.   On this same day, the Brisbane Magistrates Court notified the parties that the matter was listed for a mention on 1 August 2017 in relation to the issuing of subpoenas.  It seems from the court file that the appellant appeared by telephone at this mention.  There is no transcript of the hearing.
22. [22]
    In accordance with the directions made on 5 July 2017, the first respondent’s affidavit material was filed on 21 July 2017.  Legal Aid apparently sent this material to the appellant by post and email on 21 July 2017.  He did not receive it until 2 August 2017. 
23. [23]
    By email dated 4 August 2017, the appellant emailed the lawyers for the respondents and the Brisbane Magistrates Court.  He informed them that he had only received the first respondent’s affidavit material two days earlier.  He explained that he had not received the abovementioned email on 21 July 2017 or at any subsequent time and that the material was posted to a street address which he does not use as a mailing address as there is no letterbox there in which mail can be deposited.   He further explained that on 20 June 2017 he had applied for Legal Aid to represent him in relation to these proceedings and he had been advised that his application was still being reviewed.  He went on to say that even if his application to Legal Aid was unsuccessful, that he anticipated being able to lodge his affidavit material by Friday 18 August 2017.  He observed that this should not cause any prejudice, in circumstances where the applications for final protection orders were not listed for hearing until 26 September 2017.  This email was forwarded by the Acting Registrar of the Brisbane Magistrate’s Court to the learned Magistrate on the same day.  
24. [24]
    The pre-trial review of the matters proceeded on 8 August 2017 before the learned Magistrate.  The first respondent was represented and a police prosecutor appeared on behalf of the second respondent.  The appellant was not present. 
25. [25]
    It is apparent from the transcript that the learned Magistrate viewed the contents of the appellant’s email date 4 August 2017 as an application by him to extend the time to file his affidavit material from 21 July 2017 until 18 August 2017.   The learned Magistrate refused the application for the following reasons:

1. (i)
   no explanation has been given as to why the appellant had not complied with the previous direction to file his affidavit material by 21 July 2017;
2. (ii)
   the appellant’s email of 4 August 2017 did not identify why he had failed to attend the listed pre-trial review, in circumstances where a direction made in his presence on 5 July 2017 required his personal attendance; and
3. (iii)
   the requested extension would present a difficulty for the first respondent in responding to the material and for there to be an opportunity for case management prior to the hearing on 26 September 2017.

26. [26]
    The learned Magistrate then went on to give reasons as to why she considered it was appropriate to make a final protection order in favour of the first respondent against the appellant and thereby vacate the hearing date of 26 September 2017.  Towards the end of the hearing of the matter, the lawyer who had appeared for the appellant on 23 May 2017, arrived in the court and advised the learned Magistrate that he had informed the first respondent’s solicitors ‘some time ago’ that the firm was no longer instructed in this matter.  Leave was granted for him to withdraw.  In the appellant’s affidavit filed 17 October 2017, he deposes to having terminated the instructions to the solicitors on or about 7 June 2017, as he could not afford their services. 
27. [27]
    A protection order was made by the learned Magistrate in favour of the first respondent as against the appellant, with it to remain in place for five years or until further order.  The relevant form indicates that the Magistrate made the order on the basis that she was satisfied that the appellant did not oppose the making of the order.   I note that a contravention of any of the conditions of the protection order made against the appellant is serious, in that it carries a maximum penalty of three years imprisonment for the first offence and five years imprisonment for subsequent offences.
28. [28]
    The first respondent consented to, on a ‘without admissions’ basis, a protection order in favour of the appellant as against her, which is also to remain in place for five years our until further order.   Both orders contain the mandatory good behaviour conditions.
29. [29]
    The appellant was served with the protection order on 9 August 2017.  He immediately telephoned the Brisbane Magistrates Court and followed up with an email detailing his surprise that the matter had been heard and determined in his absence.  He reiterated that he was still waiting to hear from Legal Aid in relation to his application for funding.  On the following day, the appellant was informed that the learned Magistrate had reviewed the court file and indicated that the matter could not be relisted.   
30. [30]
    In his affidavit filed on 17 October 2017, the appellant deposes to the following:

1. (i)
   he had applied for Legal Aid on 20 June 2017 as he had no experience in domestic violence matters and he considered that he required the assistance of an independent lawyer in preparing the material;
2. (ii)
   he had not filed his affidavit material by 21 July 2017 as:

1. (a)
   Legal Aid were still reviewing his application;
2. (b)
   he had not yet received the second respondent’s Brief of Evidence;

3. (iii)
   he did not appear at the pre-trial review on 8 August 2017 as the directions made on 5 July 2017 did not make any reference to this date, and he thought those directions superseded the previous directions which had been made on 23 May 2017.

Was the appellant denied procedural fairness

31. [31]
    As to the nature of a fair trial, in National Companies and Securities Commission v The News Corporation Limited^[4],  Gibbs CJ explained that:

“The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”

32. [32]
    In Allesch v Maunz^[5], Gaudron, McHugh, Gummow and Hayne JJ, referring to the earlier decision of the High Court in Taylor v Taylor,^[6] said:

“A Court will ordinarily be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side.  Such an injustice will often be capable of remedy by the imposition of terms as to costs.” 

33. [33]
    As to the principle to afford a hearing, Kirby J said at [35]:

“It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.” [footnotes omitted]

34. [34]
    Kirby J went on to address the criteria for setting aside a judicial order made in default of appearance of a party in the following way:

“…Thirdly, it is desirable, as it seems to me, to treat the considerations applicable to such decisions conceptually and to classify them as impinging upon the two criteria that have for a very long time been viewed as critical to an affirmative decision to set aside a judicial order made in default of the appearance of a party. These are:

35. [35]
    Of course it is trite to say that courts are not obliged to delay proceedings indefinitely to accommodate a party, who has notice of a hearing date, yet refuses or fails to attend.  This is because the rights of other parties are necessarily involved and the community is entitled to expect the courts to efficiently discharge their functions.  
36. [36]
    The question is whether the learned Magistrate gave the appellant an adequate opportunity to be heard.   In short, I am not satisfied that she did.  There are a few reasons for this.  Her Honour found that no explanation has been provided by the appellant as to why he had not filed his affidavit material by 21 July 2017.  However, the email identifies two reasons why this had not occurred.  
37. [37]
    First, the directions provided for the appellant to receive the second respondent’s Brief of Evidence prior to serving his affidavit material.   The appellant explained in the email that this had not transpired, in that he had not received this material until four days after the directions required him to provide his affidavit material.  
38. [38]
    Second, the email also stated that the appellant had applied to Legal Aid on 20 June 2017 for a grant to represent him and he had been advised by Legal Aid that this application remained under review.    The learned Magistrate seems to have placed weight on the fact that the appellant is a qualified lawyer with a practicing certificate.  The relevance of this is not clear, as there was no evidence before the learned Magistrate that the appellant had any experience in proceedings such as these.  The learned Magistrate also seems to have attached significance to the lawyer for the first respondent having informed the Court that she was not aware of the appellant’s application to Legal Aid.   Once again this is of limited relevance.  This is because there was no evidence before her Honour as to the enquiries (if any), the lawyer had made relevant to this issue. Further, there were two email communications from the appellant to the court, expressly stating that such an application to Legal Aid had been made and was still under review. 
39. [39]
    The learned Magistrate also concluded that the appellant had not explained why he was not present at the pre-trial mention, when the directions made on 5 July 2017 expressly required his attendance.  The difficulty with this is that the directions did not in fact require his personal attendance on this date.  Indeed there is no mention in the directions of any hearing on 8 August 2017.   The learned Magistrate failed to appreciate this salient feature.  
40. [40]
    The final reason why the learned Magistrate made the subject orders, was that she was satisfied that the first respondent would be prejudiced at the hearing on 26 September 2017, if the appellant was not to provide his material until 18 August 2017.  The reasons do not disclose the matters relied upon by her Honour in reaching this conclusion, and in my opinion, the evidence would not lead one to be satisfied of this.  The date of 18 August 2017 was still five weeks prior to the hearing.  This would have given sufficient time for the parties to serve their material in reply, where the directions had provided for a two week time frame in relation to this step. This would then have meant that all material to be relied upon at the hearing, would have been served on the parties some three weeks prior to the hearing.  Further, for case management purposes, her Honour could have listed the matters for another pre-trial review shortly after 18 August 2017.  This would have enabled further directions to have been made to ensure that the first respondent’s interests were adequately protected, in so far as they related to her preparation for the hearing.  
41. [41]
    It is readily apparent from the appellant’s email that he was working towards the allocated hearing date of 26 September 2017, and that he had not abandoned his involvement in the proceedings.  I sympathise with the learned Magistrate given the somewhat voluminous nature of the court file.  However, a careful review of it would have revealed that there was a real possibility that the appellant may have been mistaken regarding the need for his appearance in court on 8 August 2017, particularly given that there was no reference to it in the directions made on 5 July 2017.   
42. [42]
    In these circumstance, I consider that while the learned Magistrate had the power to proceed with the pre-trial mention, refuse the appellant’s application to file affidavit material by 18 August 2017, and make the protection order as she did, the appellant was not given an adequate opportunity to be heard.  Her Honour did not canvass the possibility of adjourning the pre-trial mention in accordance with s 39(2)(b) of the Act, even if only for a short time.   This would have afforded the appellant an adequate opportunity to present material information and make submissions.  There was a miscarriage of justice and the appellant has suffered an adverse consequence by the orders made. 
43. [43]
    Turning to the appellant’s affidavit, I am satisfied it provides a reasonable explanation for his failure to use the opportunity to be heard at the pre-trial review.  While the Notice of Adjournment refers to the date of 8 August 2017, one might reasonably expect that it would have been included within the extensive directions made on 5 July 2017.  Indeed the learned Magistrate assumed that it had been.  The appellant had thought that the directions of 5 July 2017 superseded the previous directions made on 23 May 2017.  Further, the uncontested evidence of the appellant is that there was no mention of the pre-trial review at the hearing on 5 July 2017.  In short, the appellant’s misunderstanding was understandable and it was promptly brought to the attention of the court on 9 August 2017, soon after he learnt that the orders made been made.   Further, the appellant’s affidavit demonstrates that he has an arguable case and that rehearing the matter might produce a materially different result.   There is no apparent prejudice to the first respondent if the interim orders remain in place pending the determination of the hearing in relation to the final orders.  
44. [44]
    In these circumstances, the appeal is allowed and the orders of the learned Magistrate on 8 August 2017 are set aside.  Counsel for the appellant urged upon me that instead of remitting the matter to the Magistrates Court, that it be heard and determined in this Court.   However, the appropriate place to deal with this matter is the Magistrates Court, rather than this Court effectively conducting the Magistrates Court trial.

Other grounds of appeal 

45. [45]
    Given my conclusion that this is a matter which should be remitted to the Magistrates Court for rehearing, it is unnecessary and would be inappropriate for me to consider the other grounds of appeal.

Costs

46. [46]
    The appellant seeks his costs of the appeal from the first and second respondents.  Pursuant to s 142(2) of the Act, the Uniform Civil Procedure Rules 1999 apply.  Rule 681 provides that costs are in the discretion of the court but follow the event, unless the court orders otherwise. 
47. [47]
    In seeking an outcome where each party bears its own costs, the second respondent submits that considerations of public interest are factors relevant to the exercise of the discretion.  This submission is made in reliance on the decision of Oshlack v Richmond River Council^[8]. In that case, the unsuccessful applicant had instituted proceedings against a local council and developer in seeking relief in respect of consent granted by the council to a development application.  Kirby J said at [143]:

“… Once it is appreciated that compensation to the successful party is the reason why the party will ordinarily have a reasonable expectation of recovering its proper costs, the limits of the principle are clear. It says nothing about exceptional or special circumstances which warrant a departure from the general rule. Such departures have quite often arisen in the past, as I have demonstrated. Public interest litigation is just one category into which may be grouped particular kinds of cases that will sometimes warrant departure from the general rule. The possibility of such departure cannot be denied, given the breadth of the statutory language in which the discretion is expressed.”

48. [48]
    In light of the legislative provisions of the Act, together with the fact that I am satisfied that the second respondent has properly defended the appeal for no private gain, and in circumstances where it has contributed to a proper understanding of the law in question, I do not consider it is appropriate to make a costs order against the second respondent in favour of the appellant.  The first respondent was not represented and did not participate in the appeal process.  
49. [49]
    Therefore in all the circumstances, each party should bear its own costs.

Orders

1. The appeal is allowed.
2. The application to adduce fresh evidence is granted.
3. The orders of 8 August 2017 are set aside and the matter is remitted to the Brisbane Magistrates Court to be heard and determined according to law.
4. There is no order as to costs.