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Jones v DBA QDC 149
DISTRICT COURT OF QUEENSLAND
Jones v DBA  QDC 149
FRANK RANDALL JONES
D7 of 2019
Magistrates Court at Gympie
21 August 2019
23 June 2019
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where hearing before learned magistrate for a breach by the appellant of a temporary protection order – where learned magistrate decided pursuant to s 42 of the Domestic and Family Violence Protection Act 2012 (Qld) the court may of its own initiative make or vary the order – where learned magistrate varied temporary protection order so that it became a final protection order of five years – whether the learned magistrate had power under s 42 of the Domestic and Family Violence Protection Act 2012 (Qld) to vary the temporary protection order so as to convert it to a protection order – whether interpretation of the word “vary” correct
Acts interpretation Act 1954 (Qld) s 14A
Domestic and Family Violence Protection Act 2012 (Qld) s 3, s 23, s 34, s 37, s 42, s 44, s 45, s 46, s 97, s 98, s 129, s 164, s 168, s 169
Uniform Civil Procedure Rules 1999 (Qld) r 783
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, applied
Allesch v Maunz (2000) 203 CLR 172, cited
Bode v Commissioner of Police  QCA 186, followed
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, cited
Commonwealth of Australia v Esber (1991) 29 FCR 343, cited
Electronic Industries Ltd v David Jones Ltd (1954) 91 CLR 288, cited
Fearnley v Finlay  QCA 155, applied
Jones v Commissioner of Police  QDC 148, cited
In Re Ball’s Settlement Trusts; Ball v Ball and Others  1 WLR 899, cited
Robinson Helicopter Company Inc v McDermott  HCA 22, applied
R v Tonkin; ex parte Federated Ships’ Painters and Dockers’ Union of Australia (1954) 92 CLR 526, cited
The appellant was self-represented
C van der Weegen for the respondent
KLM Layers for the respondent
- This is an appeal against the decision of a magistrate to make a five year protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act). The appellant represented himself and the respondent was represented by counsel.
- The decision appealed against was made following a hearing before the learned magistrate for a breach by the appellant of a temporary protection order. The temporary protection order had been made on 28 May 2018 following an ex parte application. The temporary protection order was varied on 25 June 2018. The varied order was served on the appellant on 26 June 2018. The appellant was found to have breached that order by contacting and/or following or approaching his ex-partner on the afternoon of 26 June 2018 at the Gympie Post Office.
- This appeal was heard consecutively with the appeal against the appellant’s conviction for breach. I have today dismissed that appeal.
- At the time of sentencing for the breach, the learned magistrate stated that having regard to the appellant’s history and nature of this particular breach, only a nominal punishment should be imposed. The learned magistrate commented that the breach had occurred by the appellant “having a conversation with her when he was not supposed to have a conversation with her”. The sentence imposed was that the defendant be released upon entering into a recognisance in the sum of $500, conditional upon him being of good behaviour and that he appear for conviction and sentence if called upon at any time in the next 12 months, without recording a conviction.
- After the learned magistrate had found the appellant guilty, and during that part of the hearing devoted to submissions on sentence, the police prosecutor indicated there would be an application under s 42 of the Act in relation to the current temporary protection order. The transcript does not reveal the nature of the application or the variation sought (if any).
- The solicitor, who had represented the appellant at the breach hearing, advised the learned magistrate that he had a very general argument from his client’s instructions to ask that the temporary protection order not otherwise be varied or made into a permanent order. The solicitor stated, “I appreciate that’s an unusual submission in all of the circumstances, lacking in detail, and I can’t advance it beyond that”. The solicitor then said that the defendant himself is involved solely with the application; clearly referring to the s 42 application to which the police prosecutor had referred.
- The transcript does not reveal the appellant making any submissions, nor does it show the learned magistrate asking the appellant whether he had anything to say or submissions to make in relation to the exercise of the court’s power under s 42 of the Act.
Decision of learned magistrate on s 42
- After imposing the penalty for the breach of the Act, the learned magistrate then referred to the powers of the court under s 42 of the Act. The learned magistrate accepted that a conviction for a breach of a temporary protection order was a domestic violence offence and that as a result s 42 of the Act was enlivened. The learned magistrate stated that under s 42 the court may of its own initiative make or vary the order.
- During the course of giving his reasons, the learned magistrate said that he had given the appellant the opportunity “through your solicitor to make submissions in respect of that”. He said he had not given the aggrieved an opportunity but that was not reasonably practicable to now get her back but that he believed the order he was intending to make would be in keeping with her submissions in any event.
- The learned magistrate concluded that the court had a discretion under s 42 to make an order and that he was going to exercise his discretion. The learned magistrate said that he was varying the protection order so it would be in the same terms as the varied temporary protection order of 25 June 2018 but be a final order for five years.
- The issue is whether the learned magistrate had power under s 42 of the Act to vary the temporary protection order so as to convert it into a protection order.
Nature of appeal
- The appeal is brought pursuant to s 164 of the Act. Section 168 provides that an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed, however the appellate court may order that the appeal be heard afresh in whole or in part. No such order was sought in this case. The nature of the appeal is therefore one of a re-hearing and is to be decided on the evidence and the proceedings before the Magistrates Court below.
- Section 169 of the Act sets out the powers of the appellate court as follows:
- (1)span style="">In deciding an appeal, the appellate court may—
- (a)confirm the decision appealed against; or
- (b)vary the decision appealed against; or
- (c)set aside the decision and substitute another decision; or
- (d)set aside the decision appealed against and remit the matter to the court that made the decision.
- (2)The decision of the appellate court upon an appeal shall be final and conclusive.
- The Act allows a court to make a domestic violence order against a respondent for the benefit of a person known as an aggrieved. The Act defines domestic violence order to mean:
- (a)a protection order; or
- (b)a temporary protection order.
- Section 23(3) of the Act provides that a temporary protection order is an order made in the period before a court decides whether to make a protection order for the benefit of an aggrieved. A temporary protection order may be made if the court adjourns a hearing for an application for a protection order, or adjourns a hearing for a variation of a domestic violence order, or a proceeding under s 42, or if the application for a protection order or a variation to that order is sought to be heard before the respondent is served, or if an application is made by a police officer in the circumstances set out in s 129 of the Act. A court may make a temporary protection only if the court is satisfied of two things, namely that:
- (a)A relevant relationship exists between the aggrieved and the respondent; and
- (b)The respondent has committed domestic violence against the aggrieved.
- Section 46 specifically states that a temporary protection order need only be supported by evidence the court considers sufficient and appropriate having regard to the temporary nature of the order.
- A protection order is different from a temporary protection order, as are the matters required to be satisfied before such an order is made. The application for a protection order is required to be personally served on the respondent. The protection order will ordinarily be in force for five years. Section 37 provides that a court may make a protection order against a person if the court is satisfied of three matters, namely that:
- (a)A relevant relationship exists between the aggrieved and the respondent; and
- (b)The respondent has committed domestic violence against the aggrieved; and
- (c)The protection order is necessary or desirable to protect the aggrieved from domestic violence.
Section 42 enlivened
- Section 42 of the Act provides as follows:
- (1)This section applies if a court convicts a person (the offender) of a domestic violence offence.
- (2)The court may, on its own initiative, make a protection order against the offender if the court is satisfied that, under section 37, a protection order could be made against the offender.
- (3)If a domestic violence order is already in force against the offender, the court—
- (a)must consider the order and whether, in the circumstances, the order needs to be varied, including, for example, by varying the date the order ends; and
- (b)may, on its own initiative, vary the order.
- (4)However, the court may not make a protection order under subsection (2) or vary a domestic violence order under subsection (3) unless the following persons have been given a reasonable opportunity to present evidence and to prepare and make submissions about the making or variation of the order—
- (a)the offender;
- (b)the prosecuting authority for the offence;
- (c)if reasonably practicable, the person who is or would be named as the aggrieved in the order.
- In this case, a temporary protection order had been made without notice to the appellant. The orders made by the Magistrates Court in the matter, which had been delivered as part of the appeal pursuant to r 783 of the Uniform Civil Procedure Rules 1999 (Qld), show that directions had been made for the delivery of affidavit evidence in anticipation of a full hearing before the temporary order was made into a protection order.
- As far as the jurisdiction to make an order under s 42 is concerned, it is not in issue that a temporary protection order had been validly made and that by being found to be in breach of that order, the appellant had been convicted of a domestic violence offence.
Nature of order
- The learned magistrate did not purport to act under s 42(2) of the Act and there is no indication that any consideration was given by the learned magistrate to the requirements of s 37 of the Act. Section 37(1)(c) provides that a court may make a protection order if, amongst other things, the court is satisfied that “a protection order is necessary or desirable to protect the aggrieved from domestic violence”. The learned magistrate did not make any such finding. Rather, the learned magistrate in exercising his discretion stated that it was to enable the parties to get on with, what he described as, the main event, which he stated was “exercising your rights under the Family Law Act to enable there to be contact between your children and yourself and/or you to have custody or guardianship with your children.”
No legal power to vary
- The issue is accordingly the nature of the power under s 42(3) of the Act. The approach to statutory interpretation requires that “the task of statutory construction must begin with a consideration of the text itself” and “[s]o must the task of statutory construction end”. The approach requires that the “context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise.”
- As far as context is concerned, s 42 draws a distinction between the making of what might be described as a permanent protection order under s 37 and a variation of an existing order. That distinction suggests that a variation of the order is something less than a permanent order that might be made under s 37 of the Act. The High Court had occasion in R v Tonkin; ex parte Federated Ships’ Painters’ and Dockers’ Union of Australia to consider a similar distinction between the setting aside of an award and varying the terms of an award. The court held that the power to vary referred to a change in some part of an award whether by addition, excision, modification, substitution, qualification or otherwise of a term. Implicitly, the power to vary did not involve setting aside an award or substituting a new award.
- The word “vary” is not defined in the Act but is said to include a power to vary the date the order ends. Generally, the word “variation” would suggest the introduction of a change or alteration; but not a complete replacement. In Electronic Industries Ltd v David Jones Ltd, for instance, the High Court held than an agreement to vary the contract to modify the rights and obligations of the parties did not amount to an agreement to terminate the original contract. In Re Ball’s Settlement Trusts; Ball v Ball and Others the power to vary a trust was held not to include a power to alter the whole substrata of the trust so that it became a new trust.
- None of this suggests that the power to vary in s 42(3) of the Act gives to the court power to change a temporary protection order into a protection order.
- The requirement of s 14A of the Acts interpretation Act 1954 (Qld) is that, in interpreting a provision of a statute, the interpretation that best achieves the purpose of an act is to be preferred to any other interpretation. The purpose may appear from “an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of the statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.”
- The objects of the Act are set out in s 3(1). These objects include the maximisation of the safety, protection and well-being of people who fear or experience domestic violence and to prevent or reduce domestic violence. The objects are to be achieved by, amongst other things, allowing a court to make a domestic violence order to provide protection against further domestic violence. The achievement of these objects is refined in practice by two types of domestic violence orders: a temporary protection order which can be made without service of the application and supported by the evidence that the court “considers sufficient having regard to the temporary nature of the order”, or a protection order which is based on service of the application and the court being satisfied of the three matters set out in s 37.
- The purpose of the Act is achieved if that distinction is maintained when the power under s 42 is to be exercised with it being construed as entitling a court to vary either, but not as allowing a court to substitute a temporary protection order for a five year protection order.
- In my view, the power to vary in s 42 of the Act did not give the learned magistrate a power to change the temporary order into a protection order.
No power to vary on the facts
- There is, in any event, a factual consideration. The exercise of the power was subject to the requirement to give the offender a “reasonable opportunity to present evidence and to prepare and make submissions”. The learned magistrate did not give that opportunity to the appellant. The statement made by his solicitor, who said he was not acting for the appellant on this application, cannot be considered to have given to the appellant the necessary opportunity as is clearly envisaged by the statute.
- For these reasons, the making of the protection order was beyond power and should be set aside and the matter remitted to the Magistrates Court for it to consider whether or not to make a protection order as the Act envisages. The effect of this finding is that the temporary protection order made on 25 June 2018 remains in force and is unaffected by any order made by the learned magistrate on 6 March 2019.
Jones v Commissioner of Police  QDC 148.
McMurdo JA in Bode v Commissioner of Police  QCA 186,  citing Robinson Helicopter Inc v McDermott  HCA 22, .
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194,  per Gleeson CJ, Gaudron and Hayne JJ; Allesch v Maunz (2000) 203 CLR 172 at 180 per Gaudron, McHugh, Gummow and Hayne JJ.
See also s 98.
Section 44(1)(b) and (c).
Section 44(1)(d) and (e).
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, , referred to by Jackson J in Fearnley v Finlay  QCA 155, .
(1954) 92 CLR 526.
Commonwealth of Australia v Esber (1991) 29 FCR 343; (1991) 101 ALR 35, 53.
(1954) 91 CLR 288.
 1 WLR 899.
Lacey v Attorney-General (Qld) (2011) 242 CLR 573, .
- Published Case Name:
Jones v DBA
- Shortened Case Name:
Jones v DBA
 QDC 149
21 Aug 2019