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MKA v WKT[2018] QDC 73

DISTRICT COURT OF QUEENSLAND

CITATION:

MKA v WKT [2018] QDC 73

PARTIES:

MKA

(applicant)

v

WKT

(respondent)

FILE NO/S:

Appeal NO: 5/2018

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Southport

DELIVERED EX TEMPORE ON:

28 March 2018

DELIVERED AT:

Cairns

HEARING DATE:

28 March 2018

JUDGE:

Morzone QC DCJ

ORDERS:

  1. The respondent’s application is allowed.
  2. It is ordered that the appeal be transferred to the District Court at Southport for mention at a date and time to be fixed by the Registrar of that Court

CATCHWORDS:

APPEAL – APPLICATION FOR CHANGE OF VENUE – whether appeal can be more conveniently or fairly heard in originating venue – whether the principles and objects of the Domestic and Family Violence Act 2012 (Qld) apply to the exercise of the discretion to change venue – whether the respondent had the capacity to conduct her case in the current venue in circumstances where she has no legal representation – where the respondent does not live in the current venue – where the appellant does not live in the current venue but convenient to his legal representation.

Legislation

Domestic and Family Violence Act 2012 (Qld) ss 3, 4 142 164, 168, 169.

Uniform Civil Procedure Rules 1999 (Qld) r39.

COUNSEL:

S Williams for the respondent.

SOLICITORS:

Lisa Stansfield Lawyers for the respondent.

The applicant appeared without legal representation.

  1. [1]
    The respondent, in an appeal from the Magistrates Court in Coolangatta in respect of a domestic violence order, applies to change the venue and transfer the appeal from the District Court in Cairns to the District Court at Southport.

Background

  1. [2]
    The appellant appeals against the whole or the part of the decision of the Magistrates Court made on the 15th of December 2017 on the grounds that the Magistrate erred in finding that the making of the protection order was necessary and desirable.
  1. [3]
    That ground is further particularised in the submissions made on behalf of the appellant in the appeal as follows:
  1. The Magistrate misapplied the approach of the leading authority when assessing whether there was more than a mere possibility or speculation of the prospect of further domestic violence; 
  1. The Magistrate placed undue weight on the passage of time between the last act of domestic violence and the date of the hearing in determining whether the making of the order was necessary or desirable;
  1. The Magistrate placed undue weight on the “small chance of contact” between the parties in the future in determining the order was necessary or desirable; 
  1. The determination that an order was necessary or desirable was unreasonable based on the evidence and factual findings of the learned Magistrate

Mode of Appeal

  1. [4]
    Appeals of this type are brought pursuant to s 164 of the Domestic and Family Violence Act 2012 (Qld). In accordance with s 168(1), “An appeal must be decided on the evidence and proceedings before the Court that made the decision being appealed.” That Court was not bound by the rules of evidence or any practices or procedures applying to Courts of record and could inform itself in any way it considers appropriate.
  1. [5]
    Subsection 168(2) reposes discretion in this Court to order that the appeal be heard afresh,[1] in whole or in part and that discretion may be invoked in appropriate circumstances; however, the appeal is not a new trial to consider as if presented for the first time the arguments advanced.
  1. [6]
    Pursuant to s 169 (1) of the Act the appellate Court may –
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    vary the decision appealed against; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision appealed against and remit the matter to the Court that made the decision.”
  1. [7]
    The practice and procedure for the appeal, pursuant to the Domestic and Family Violence Act 2012 (Qld) is the Uniform Civil Procedure Rules 1999 (Qld). The Court under the primary Act and related rules at first instance can distinguish this from the approach.
  1. [8]
    However, the Court’s consideration of the substance of the matter is still properly governed by the main objects of the Domestic and Family Violence Act 2012 (Qld), whereby, pursuant to s 3(1) one main object of the act is to: “…maximise the … wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives.”
  1. [9]
    Further, s 4(1) of the Act sets out a requirement that: “This Act is to be administered under the principle that the … wellbeing of people who fear or experience domestic violence, including children, are paramount.”
  1. [10]
    Subsection 4(2) identifies further principles that the Act is to be administered:

“If people have characteristics that may make them particularly vulnerable to domestic violence, any response to the domestic violence should take account of those characteristics.”[2]

“A civil response under this Act should operate in conjunction with, not instead of, the criminal law.”[3]

Application to Transfer 

  1. [11]
    With those objects and principles of the Act in mind, the Court can consider a transfer of the proceeding pursuant to the Uniform Civil Procedure Rules 1999 (Qld).[4]Rule 39 provides:[5]

“39Change of venue by Court order.

  1. (1)
    This rule applies if at any time the Court is satisfied a proceeding can be more conveniently or fairly heard or dealt with at a place at which the Court is held other than the place in which the proceeding is pending.

(2)The Court may, on its own initiative or on the application of a party to the proceeding, order that the proceeding be transferred to the other place.”

  1. [12]
    The respondent applies to transfer in reliance upon her affidavits filed respectively on the 16th of February 2018 and the 12th of the March 2018. In particular, the grounds of the application include:
  1. That she ordinarily resides in Coolangatta; 
  1. The proceedings, at first instance, were the subject of a hearing and orders made in Coolangatta; 
  1. whilst she travels to Cairns regularly, any disruption in that travel would disrupt the purpose of it, namely, work and the servicing of her clients;
  1. she continues to struggle emotionally and mentally with the circumstances surrounding the primary conduct alleged forming the basis of the original order, and she has been diagnosed with an adjustment disorder with mixed anxiety and depressed mood in accordance with DSM-5 diagnostic criteria, and has produced medical evidence to support that diagnosis;
  1. She has been unable to engage legal representation in Cairns because of the lack of free time within work hours when she is in this place. Her previous proceeding had her represented by lawyers who work at the Gold Coast, and she is financially unable to pay them to further represent her, especially in Cairns.[6]
  1. [13]
    In oral submissions, the respondent still expressed a desire to be represented and is hopeful of obtaining Legal Aid assistance to do so but remained unsure as to the nature or extent of that representation including the need for consultation at her place of residence or, alternatively, in Cairns subject to work.
  1. [14]
    The appellant properly relies upon the onus remaining with the respondent to demonstrate merit in the application. To that end, it is contended:
  1. That while the respondent resides in Weipa, his legal representatives are in Cairns;
  1. Those representatives, in particular, his solicitor, has had the conduct of the proceeding since inception including the hearing in the Magistrates Court;
  1. At that time, the appellant was put to expense to fly and accommodate the solicitor and barrister at the hearing in the Magistrates Court in Coolangatta at the cost of $1036.26;
  1. There are no witnesses required to give evidence in the appeal hearing;
  1. Although the respondent is self-represented, she visits Cairns regularly to conduct her business and the comparative extra cost of remaining in Cairns for a further period to attend a hearing would be less than that expense of the appellant. The hearing is estimated to take two hours and could coincide with the respondent’s work schedule;
  1. There is no evidence that a hearing date would be available in a timely way in the Southport District Court; and
  1. The respondent has had previous contact and received medical support from practitioners in Cairns and could well be supported during the course of the hearing if desirable.

Convenience & Fairness

  1. [15]
    The considerations facing the Court in these applications involve weighing up matters of convenience and fairness including:
  1. The cost, expense and inconvenience involved in a change of venue including disruption to Court schedules and a waste of Court resources;
  1. Delay which might be occasioned by a change of venue; and
  1. The system of the administration of justice in this State, which establishes this appellate Court without any particular restriction upon the place of an appeal from the Court below.
  1. [16]
    These are generally and are but a few of the broad considerations. The weight, if any, to be given to those and other factors of convenience and fairness will vary from case to case.
  1. [17]
    In this case, the Court proceeding is that of an appeal governed by the Family and Domestic Violence Protection Act 2012 (Qld), and the attendant objects and principles set out above.
  1. [18]
    The respondent is currently unrepresented so her attendance at the hearing is, at this stage, a necessity and, even so, the attendance of any party at a hearing is a matter for that party, albeit appeals may be heard in the absence of the parties.
  1. [19]
    Even if the respondent were to be successful in obtaining finance or assistance from the Legal Aid office, then, in the circumstances of cases like this, it is desirable that the legal practitioners involved at first instance continue to have carriage of the proceeding.
  1. [20]
    Similar factors, of course, apply to the appellant. Having chosen this jurisdiction, it is more convenient for him to have his representation continue from that which he enjoyed at the hearing at first instance. Whether the cost of travel and accommodation is more or less incurred by the parties for themselves or their legal representatives, obviously depends upon the circumstances.
  1. [21]
    The respondent, although travelling frequently to Cairns, does so for work purposes to service her clients in this place. It cannot be readily inferred that she has free time to attend Court for half a day or longer as contended by the appellant’s counsel. Indeed, that inference would contradict the affidavit material where the appellant has made it clear that she has even been unable to attend upon lawyers in Cairns by way of consultation with a view to future engagement because of the lack of that free time. So if she were to attend the hearing and whether or not she is represented, she would need to extend her stay in Cairns beyond her work time which, by necessity, incurs some cost relative to the appellant’s costs of his choice of legal representation.
  1. [22]
    That choice by the appellant was made throughout the proceedings at first instance, and notwithstanding the attempts to transfer the proceeding to Cairns, the Court retained the matter for hearing and decision. It is likely that he will incur similar cost, albeit for a lesser period if his representatives were to attend the appeal in Southport.
  1. [23]
    It is also deposed by the solicitor for the appellant that she would need to close her practice if she were to be absent from the office since she is a sole practitioner. That is unfortunate. It seems that she was able to fulfil her duty to her client at first instance. It is not clear why it is that could be unfulfilled in that way, except incur costs and inconvenience to the solicitor. That may be so but it is a matter for her to weigh up whether she can properly attend to her client in fulfilment of her duty to the client and to the administration of justice.
  1. [24]
    What is significant in this case that distinguishes at least the Court’s consideration of rule 39 of the Uniform Civil Procedure Rules 1999 (Qld) and its application in other like cases is that the Court must remain cognisant of the objectives and principles underpinning the Domestic and Family Violence Act 2012 (Qld).
  1. [25]
    It is not clear in this case whether the proceeding issued in this way is purported to further vex the respondent and I needn’t consider that as a circumstance here. Rather, the circumstances are that the respondent has, by way of proper diagnosis and continued effort, to endure a mental health condition by way of adjustment disorder and attendant matters.
  1. [26]
    These proceedings in themselves are likely, based on that evidence, to aggravate her condition. If she were to remain self-represented, that aggravation will obviously continue. So as to assure herself of the continuity of care, she seeks to be supported by those who she has consulted in her home town during the course of the proceeding. It seems to me that that factor is particularly pertinent in this case and ought be taken into account as a matter of convenience in the context of the respondent’s wellbeing in the way identified in the main objects in sections 3 and 4.
  1. [27]
    So that she is able to properly conduct her case, it is important that she be able to do so with appropriate support from those who have given her the continuity of care in a contemporary sense, not past care in her former place of residence, namely, Cairns. It also should be in a form that does not unduly disrupt and, therefore, cause financial consequences to her work or further accommodation costs by having to stay in a place other than where the proceedings would otherwise more conveniently be dealt with so as to ensure that it doesn’t aggravate her mental health.
  1. [28]
    In the end, this is a case where the convenience and costs of flying legal representatives to the district proximate to the original proceedings is said to be of greater convenience and fairness to a respondent in the circumstances that I’ve described above. In my view, that is to ignore the objectives and principles of the Domestic and Family Violence Protection Act 2012 (Qld) in conjunction with the Uniform Civil Procedure Rules 1999 (Qld) in the proper disposition of the appeal. For those reasons, it seems to me that it is convenient and fair that the proceedings be transferred to the District Court in Southport for hearing and determination in the usual and ordinary course.
  1. [29]
    Further argument of the appellant was that the time of that hearing is uncertain and that, given the length of the protection order, there is some degree of expediency that’s required in the disposition of the appeal. That may well be so but it seems to me that that does not outweigh the considerations favouring the transfer of the proceeding. I am not persuaded that the delayed disposition of the appeal will prejudice the appellant in circumstances which may otherwise be remedied if the order were discharged.
  1. [30]
    Obviously enough, it couldn’t be argued that he will behave in a way which would otherwise amount to domestic violence, being the focus of that order by way of prevention. Instead, it would be expected that he would be of good behaviour and the stigma of having an order can be remedied, should he be successful in the appeal, by the discharge of it.

Conclusion

  1. [31]
    Therefore, I conclude and make the following orders:
  1. The respondent’s application is allowed.
  1. I order that the appeal be transferred to the District Court at Southport for mention at a date and time to be fixed by the Registrar of that Court

Judge DP Morzone QC

Footnotes

[1]Domestic and Family Violence Act 2012 (Qld), s 168(2).

[2]Domestic and Family Violence Act 2012 (Qld), s 4(2)(d).

[3]Domestic and Family Violence Act 2012 (Qld) s 4(2)(f).

[4]Uniform Civil Procedure Rules 1999 (Qld).

[5]Uniform Civil Procedure Rules 1999 (Qld), r 39.

[6]Affidavit of WKT 16.02.18 para [11].

Close

Editorial Notes

  • Published Case Name:

    MKA v WKT

  • Shortened Case Name:

    MKA v WKT

  • MNC:

    [2018] QDC 73

  • Court:

    QDC

  • Judge(s):

    Morzone QC DCJ

  • Date:

    28 Mar 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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