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- Unreported Judgment
ODE v AME QDC 277
DISTRICT COURT OF QUEENSLAND
ODE v AME  QDC 277
District Court at Brisbane
13 December 2018 (delivered ex tempore)
13 December 2018
Porter QC DCJ
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where there had already been an application by the appellant in appeal proceedings in this Court for a stay of a judgment given in the Magistrates Court to refuse to make a final protection order –– where there was a further application by the appellant for a stay of the judgment – whether the second application for a stay raised matters which had arisen since the first stay application – whether the second application for a stay was an abuse of process – whether the application for a stay should be granted – whether it was an appropriate case to restrain the appellant from making further applications in the appeal without leave.
Uniform Civil Procedure Rules 1999 (Qld) r 389A
Vexatious Proceedings Act 2005 (Qld)
Appellant appearing in person
N Harrison for the Respondent
MCG Legal for the Respondent
- This is an application by the appellant in appeal proceedings in this Court for a stay of a judgment given in the Magistrates Court. The judgment was given by Magistrate Strofield on the 20th of September 2018. In that judgment, his Honour declined to make a protection order in favour of the applicant (entitled ODE) against the respondent entitled (AME) in the judgment. His Honour’s judgment does not have that specific reference.
- In that judgment, his Honour identified the matters that he had to be satisfied of to make a protection order.
- In short, he recognised (because it was conceded by the respondent) that there had been some acts of domestic violence and that (because it had been conceded by the respondent) the parties were in a relevant relationship. His Honour refused to make the protection order because he was not persuaded that it was necessary or desirable to make one under section 37(1)(c) of the Domestic and Family Violence Protection Act 2012 (Qld). His Honour’s reasoning to that extent appears from paragraphs 46 through to 56. The gravamen of his conclusion, based on his observations of the parties in the course of the trial, is in paragraph 55 where he concludes:
The respondent’s responses to cross-examination, given that I accept his evidence as it was not challenged in any significant way, causes me to conclude it would be speculation that domestic violence would occur in the future in the absence of a domestic violence order. In those circumstances, the risk of future domestic violence between the parties in the absence of any order is remote or otherwise unlikely to occur.
- And he therefore declined to make the protection order.
- The aggrieved applicant in that case, who I will just call ODE as she is identified in his Honour’s reasons, appealed that decision to this Court. She filed a notice of appeal on the 9th of November 2018. The grounds of the notice of appeal were as follows:
- (1)There had been domestic violence acts admitted by the respondent but not all acts had been admitted;
- (2)The transcript on the day of the hearing, she believed to be incorrect;
- (3)The respondent stated under oath that there are no matrimonial assets which he said shows control and hurt towards her;
- (4)There had been strong control to date post-separation regarding belongings and family law proceedings;
- (5)that she had concerns for her safety and her daughter’s safety;
- (6)The decision states domestic violence had been committed and it is likely there would be further acts; and
- (7)The balance of probabilities with the severe end domestic violence has been rejected.
- A stay application was brought in the form of an application for a temporary protection order pending hearing of the application on the same date, 9 November 2018. On that day, her Honour Judge Richards stayed the decision of his Honour until 23 November 2018, some two weeks later. On that day, the matter came before Judge Koppenol of this Court, and his Honour dissolved the stay order that had previously been made by Judge Richards with the consequence that no stay was in place after his Honour’s hearing. In substance, the effect of his Honour’s order was that he refused to extend the stay, because it inevitably would otherwise have ended on 23 November.
- There was no evidence before me as to the hearing before his Honour, but it is reasonable to infer his Honour refused the stay because he was not satisfied that the appeal, in all the circumstances, was sufficiently arguable and that the risks to the appellant, if the appeal was ultimately successful outweighed the starting premise which is that the respondent to the appeal was entitled to the benefit of his judgment. So much is evident from the respondent’s outline of argument filed 23 November 2018 which raised that and other points.
- A further stay application was then filed on the 6th of December 2018, some two weeks later. That stay application sought relevantly, in effect, that the temporary protection order be extended until the appeal by staying Magistrate Strofield’s decision to refuse to make a final protection order, and for the provision of certain photographs and other items which I will refer to as the belongings, and for further orders relating to restricting contact.
- I say immediately that it is unclear to me where my jurisdiction on a stay application pending appeal would come from to make orders about the return of belongings and so on. A Court with jurisdiction under the relevant Act has power in its original jurisdiction to, amongst other things, seemingly, impose conditions on a protection order that include the recovery of personal property under section 59 of the Domestic and Family Violence Protection Act. I do not quite understand how I would have that power on a stay application pending an appeal. In any event, as will be seen, on the merits I would not make such an order.
- The applicant sought to persuade me to grant a stay on the following grounds. Firstly, her affidavit filed 6 December 2018 contained and expanded on the points raised in her notice of appeal going to the merits of her appeal. That affidavit or that declaration was not before his Honour, although the notice of appeal was. I was willing to assume in her favour that there was an arguable appeal in respect to his Honour’s judgment.
- I then asked the applicant to identify for me how things had changed since Judge Koppenol saw fit to refuse the stay. Not immediately, but a little later in her submissions, I explained to her that where a party has had one go at a stay application, ordinarily it must establish some new matter or fact that has emerged since then to justify a second bite at the cherry. The applicant pointed to two or perhaps three matters.
- The first matter related to the belongings. She contended that since the judgment on the 23rd of November 2018, there had been further acts of domestic violence arising from the respondent not returning certain belongings to her. The material suggests that there are certain belongings in existence, at least as the respondent understands it, and that he has been seeking to return them and that he and the applicant, without wanting to attribute any blame to either party, had not been able to reach agreement as to how that should happen.
- It did not seem to me, on the material, that his conduct amounted to acts of domestic violence. And indeed, he indicated a willingness to forward the two boxes of the material at his expense to the applicant’s father’s address. I did not make that a condition of dismissal of the stay or seek an undertaking to that effect because I do not think that the circumstances demonstrated on the material justify that conclusion. But I note that he was willing to do so to bring an end to the matter. In any event, I do not find that the dealings about the belongings since 23 November 2018 comprise acts of domestic violence since Judge Koppenol’s decision.
- The other point that the applicant referred me to was a couple of emails relating to the couple’s daughter and her experience in hospital recently. The relevant documents are marked for identification A in the application. Mr Harrison for the respondent objected to the tender of those documents on the basis that they were tendered late and could have been the subject of a response which put them in a different context.
- I upheld the objection to the tender, but it is probably helpful if I identified that, in any event, nothing in the documents at MFI A would have persuaded me that there was any act of domestic violence involved.
- The first point relied upon by the applicant was a reference in an email sent on the 4th of December from the respondent to people involved with the care of his daughter to the following effect:
Due to the nature of the relationship I have with [my daughter’s] mother and her intent to savage the relationship I have with my daughter … and delay the inevitable outcome of our family law matter, I do not trust this information or the methods for which is might have been obtained.
- I do not think, in the circumstances of this case, that even that looked at alone amounts to domestic violence as defined in the Act. But it certainly loses that character when put in context where it was apparent that steps had been taken to prevent him seeing his daughter from the 29th of November for six weeks. It appears, from the affidavit, that that was communicated by the applicant to him. In any event, I do not think that that, of itself, amounts to an Act of domestic violence in the context in which it occurred. I should say Mr Harrison indicated to me that more matters could be put before me to put that into context, but I did not think it was necessary to receive them.
- She also relied on a statement in that email, in which the respondent said:
A temporary protection order was sought against me on the 25th of May 2018. At the mentioning for these proceedings on 14 July 2018, the Court ordered that my daughter be removed from that temporary protection order.
- The applicant contended that that was a lie. Even if it was a lie, I do not quite understand why it would amount to an act of domestic violence. But, in any event, although it was an inaccurate statement by an inexperienced litigant of the substance of what had happened, technically, in fact, the position was that there had been an absolute prohibition which was replaced with a prohibition that permitted contact. In those circumstances, given the person who wrote was not legally trained, I do not find that that statement was a lie at all.
- The same applies in respect of another paragraph of the email. There, the respondent gives an inaccurate description of the technical aspects of what had occurred on the hearing, but ended up with the proposition that:
There is no protection order against me for any person.
- That proposition was fundamentally true and completely true, as the applicant, to her credit, was able to accept in Court. I do not find anything in the dealings with the hospital amount to acts of domestic violence and certainly none that would justify revisiting the stay.
- The third matter that the applicant wanted to put before me was her contention that the respondent had perjured himself in the proceedings before the Magistrate. I explained to the respondent what an extraordinarily serious allegation that was. She was, however, determined to pursue it. She directed my attention to a passage of transcript which appears at page 19 of her affidavit filed 6 December 2018, court document 7, in which the respondent concedes that a collection of text messages which he described as a record of communications between he and the applicant was a little misleading because it is not by any means a complete record. Asked that, the respondent conceded they were not and proceeded frankly to concede certain other matters that were put to him.
- It is impossible for me to reach the conclusion there is even an arguable of perjury arising out of that exchange, and, in any event, the real question is not whether there was perjury, but whether it led to the judgment in question being induced by fraud, which the exchange amply demonstrates it was not. I should say, in fairness to the respondent, that I was willing to deal with that proposition, but, as I said, it does not look anything like conduct amounting to perjury to me.
- The applicant also relied on certain matters that she said were sworn in an affidavit filed in the Federal Circuit Court. Again whether there is any perjury or not in that affidavit, (and I emphasise to the respondent that I have got no reason to think there was) even if there was, it would be irrelevant because in this case that affidavit was not before his Honour and therefore can have played no part in inducing the judgment.
- In all the circumstances, I am unable to see a reason why it is appropriate for the Court to revisit the judgment of his Honour Judge Koppenol, in effect, refusing a further stay and I dismiss the application for a further stay accordingly. I also dismiss the other paragraphs of the application. In respect of the belongings application, I do not have, in my view, jurisdiction to order their return and, in any event, could see no basis, in the circumstances, to do so. And the other paragraphs are incidental orders directed at achieving the objective of the temporary protection order which I ought not order in circumstances where I am dismissing the application for a stay.
- Mr Harrison who, with some forbearance, assisted the Court through this matter, submitted that not only should the application be dismissed but that I should make two further orders. The first is the appellant be prohibited from making any further application in the proceedings absolutely and that she pay the respondent’s costs on an indemnity basis.
- As to the first matter, it is evident to me – and saying this with natural human empathy for people involved in these difficult situations – that the applicant is a very poor judge, indeed, of what is a justifiable basis for bringing a stay application. And further, having been given the opportunity to reflect on the persuasiveness of her perjury allegations and being told how serious they are, she was determined to maintain them. That might be understandable, but the Court has to consider the interests of both parties.
- I am not inclined to make an order absolutely prohibiting any further application in the proceeding, bearing in mind in particular that the ordinary order, even involving vexatious applicants under the Vexatious Proceedings Act 2005 (Qld) and under the equivalent rule 389A of the UCPR is to prohibit applications except with leave.
- In my view, such an order will protect the respondent because he will not be confronted with a further application unless this Court can be persuaded, bearing in mind the observations I am making in these reasons, that it is an appropriate application. Therefore, I intend to order that the appellant not make a further application in relation to this proceeding without leave of the Court.
- I should note that rule 389A creates a precondition to making such an order that a party has made more than one application that is frivolous or vexatious. On one view of it, there has only been one such application made here. I therefore do not make that order under 389A. However, in my view, that rule does not and is not intended to cut down the Court’s inherent jurisdiction to prevent abuse of its own processes which underpin so many interlocutory doctrines in this Court. I make that order.
- As to costs, it seem to me appropriate the respondent having been successful, that there be an order for costs in his favour. I am not persuaded in all the circumstances that the conduct of the applicant was such an abuse of process as to properly engage the jurisdiction of the Court to impose indemnity costs in respect of applications that are an abuse of process.
- In the circumstances, I think the appropriate protection for the respondent is the prohibition on further applications without leave which I have imposed. Bearing in mind that the appellant is a litigant in person and balancing that up against the problems that that creates for the respondent, I think the right balance is the prohibition order without leave I have made, but that the applicant pay the respondent’s costs of this application on a standard basis.
- Published Case Name:
ODE v AME
- Shortened Case Name:
ODE v AME
 QDC 277
Porter QC DCJ
13 Dec 2018