SMF v PDF[2020] QDC 174

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal arising from a decision of the Magistrates Court in Toowoomba made on 3 December 2019 to vary a Protection Order in accordance with s 91 of the Domestic and Family Violence Protection Act 2012 (“the Act”).  That variation was made on the application of the first respondent who had been the aggrieved under the original Protection Order made on 2 May 2018 in which the present appellant had been named as respondent.  Pursuant to s 167 of the Act, the Commissioner of Police has now exercised her entitlement to appear and be heard in the appeal.

Background

2. [2]
   On 12 February 2018 the first respondent, who is the daughter of the appellant, made an application for a Protection Order. A temporary Protection Order was made on 14 February 2018. On 2 May 2018, a Protection Order was made by consent without admissions. That order contained conditions that the present appellant:

• Be of good behaviour towards the first respondent and not commit domestic violence against her;
• Be prohibited from remaining or entering the premises where the second respondent lived;
• Be prohibited from contacting or attempting to contact or asking anyone else other than a lawyer to contact the second respondent;
• Be prohibited from making telephone calls or sending text messages to the respondent.

3. [3]
   Subsequently on 14 December 2018, the first respondent made application for variation of the Protection Order to include the names of her husband and her three children. On 5 June 2019, a Protection Order Varied was made. The appellant subsequently lodged appeals against the making of that order as well as the making of the Protection Order on 2 May 2018. Those appeals were heard before Horneman-Wren SC DCJ on 25 October 2019, when the appeal against the original Protection Order of 2 May was dismissed and the order made on 5 June 2019 was set aside and remitted for rehearing.

4. [4]
   The rehearing of the application to vary came before the Magistrates Court on 3 December 2019 and it is the decision in that matter which is the subject of this appeal.

5. [5]
   That order names the first respondent as the aggrieved and her husband and three children as persons protected by the order. It remains in force until 1 May 2023 and contains the following ten conditions:

3. (1)
   The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

3. (2)
   The respondent is prohibited from remaining at or entering the residence where the aggrieved lives.

3. (3)
   The respondent is prohibited from contacting or attempting to contact or ask someone else other than a lawyer to contact the aggrieved.

3. (4)
   The respondent is prohibited from making telephone calls or sending text messages to the aggrieved.

3. (5)
   The respondent is prohibited from following or approaching the aggrieved when the aggrieved is at any place.

3. (6)
   The respondent must be of good behaviour towards the named person and must not commit associated domestic violence against the named person and if the named person is a child, must not expose the child to domestic violence.

3. (7)
   The respondent is prohibited from remaining at or entering the residence where the named persons live.

3. (8)
   The respondent is prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact the named person/s.

3. (9)
   The respondent is prohibited from making telephone calls or sending text messages to the named persons.

3. (10)
   The respondent is prohibited from attending at or going within 20 metres of the school or other premises where the child of the aggrieved attends for the purposes of education or childcare.

Preliminary Issues

6. [6]
   The appeal is brought pursuant to s 164 of the Act. Under s 168, unless the appellate court orders that the appeal be heard afresh, the appeal must be decided on the evidence and proceedings before the court that made the decision being appealed. In GKE v EUT,^[1] McGill SC DCJ concluded that as s 142(2) of the Act expressly provides that Chapter 18 of the Uniform Civil Procedure Rules applies to a proceeding under the Act then, by virtue of the relevant Rules, such an appeal is by way of rehearing. 

7. [7]
   In Allesch v Maunz,^[2]  Gaudron McHugh Gummow and Hayne JJ identified the difference between an appeal by way of rehearing and a hearing de novo as follows:

“…. in the former case the powers of the appellant court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was an error at first instance.”

8. [8]
   More recently in Robinson Helicopter Company Incorporated v McDermott, ^[3] the High Court said at para [43]:-

“A Court of Appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.  If the Court of Appeal concludes that the judge has erred in fact, is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a Court of Appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’ or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.”

Pursuant to s 165(4) of the Act, an appeal such as this must be filed within 28 days of the decision.  Section 165(5), however, enables the appellate court to extend the time for filing of the appeal.  In NBE v PRT & Anor,^[4] Long SC DCJ observed that the granting of such an extension should require a consideration of two matters in particular – firstly, whether there is good reason for the delay and secondly, whether it would be in the interests of justice to grant the extension.  In the present case the appeal was filed only eight days out of time, a timeframe which encompassed the Christmas holiday period. The respondents identify no particular prejudice as having been occasioned by the delay and no objection is taken to an extension of time.

Legislative Framework

9. [9]
   The power to vary a domestic violence order is contained within s 91 of the Act. It is a discretionary process and pursuant to s 91(2), before making any variation, the court must consider the grounds set out in the application for the Protection Order and the findings of the court that made the order.

10. [10]
    The term “domestic violence” is defined in an extensive way in s 8 of the Act and s 9 provides for what is meant by the term “associated domestic violence”. It serves to extend the behaviour set out in s 8(2) to, inter alia, children or relatives of the aggrieved. Relevantly for present purposes, s 10 provides that a child is exposed to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence. Section 4(1) of the Act requires that the Act be administered under the principle that the “safety, protection and well- being of people who fear or experience domestic violence, including children, are paramount”.

The Proceedings Below

11. [11]
    On the hearing of the application for variation, neither the appellant nor the first respondent were legally represented. The magistrate was presented with affidavit material from both parties and evidence was given by two further witnesses - Sophie Anne Ivory and Celia Dodd. The appellant also tendered a number of references and photographs including many contained on a USB device which was viewed by the magistrate. The magistrate, after hearing the evidence, delivered ex tempore reasons for his decision, although that process, as with the hearing itself, was clearly made more difficult by the frequent interruptions of the appellant. The magistrate began his decision by making reference to the relevant provisions of the Act before turning to a consideration of the evidence. He referred to incidents outlined in paragraphs 3 and 4 of the first respondent’s affidavit in which she described conduct on the part of the appellant which had caused great distress to her ten year old son and her husband respectively.^[5]  He referred also to evidence of birthday cards and a letter addressed to her children (aged 12, 6 and 10 years respectively) containing statements such as “pray to Jesus that Satan will stop destroying our lives”, “call out to Jesus when you are in trouble, help me Jesus” and “no love = no life”.^[6]  The magistrate also made reference to an incident which had occurred on 6 October 2019 when the appellant, in breach of the existing Domestic Violence Order, had attended at the first respondent’s home and commenced to video-record her husband and children.  The appellant refused repeated requests that she should leave.^[7]

12. [12]
    The magistrate also made reference to the final paragraph of the first respondent’s affidavit in which she set out the following:

“14. Mum has been verbally, physically and mentally abusive to me my whole life. I don’t want my children to be exposed to that.  I had no contact with Mum since 12-02-18. My husband, Jordan and myself were at Dad’s property washing up. Mum came out of her bedroom yelling at us ‘I’ll kill you by the end of this’.  We left straight away and the only contact since has been her yelling at my fence and the letters received from her.”

13. [13]
    There was also an affidavit from the first respondent’s husband admitting to the distress that the appellant’s conduct had caused to him and to his family.^[8]

The magistrate made reference to the evidence of the appellant and to the fact that she “disputes vehemently the allegations made”.  He referred to the numerous references which the appellant had tendered and to the medical material which she had provided.  Ultimately the magistrate declared himself satisfied that there had been associated domestic violence in respect of the first respondent’s husband and her three children. 

14. [14]
    The magistrate found that much of the material before him was “quite dated”,^[9] but concluded that “that may well be because there has been an order in place for some time to prevent that (activity)”^[10].  The magistrate thought the most telling piece of evidence to be the video-recording made by the respondent on 6 October 2019, though that involved some “not very felicitous language on behalf of the (respondent)”^[11]

Grounds of Appeal

15. [15]
    The actual grounds of appeal are not easily discerned from the Notice of Appeal completed by the appellant. They appear however to involve three principle grounds:

1. The original Protection Order was not validly made as there was no evidence of domestic violence.

2. The magistrate was guilty of religious discrimination and

3. There was a denial of procedural fairness.

Ground 1

16. [16]
    As indicated above, an appeal against the original Protection Order made on 2 May 2018 was dismissed on 25 October 2019 by His Honour Judge Horneman-Wren SC. Pursuant to s 169(2) of the Act, that decision is “final and conclusive”. Accordingly there is no substance to this ground of appeal.

Ground 2

17. [17]
    This ground was not expanded upon by the appellant in her submissions. In his judgment, the learned magistrate did make reference to certain cards and letters sent to the first respondent’s children which did make reference to religious themes. It was necessary that he should refer to those matters in his consideration of the relevant evidence. There is, however, no basis for any finding of bias of any kind on the part of the magistrate in reaching his decision in this matter. This ground of appeal should also fail.

Ground 3

18. [18]
    The application or the variation of the Domestic Violence Order was filed by the first respondent on 4 December 2018. In detailing the conditions that she would like “added or varied” the first respondent wrote:

“Do not approach anyone named.  Do not come within ten metres of anyone named.  Do not attend (the children’s school).  No contact by telephone, mail, internet or verbal to anyone named.”

Elsewhere in the application she wrote:

“Given the past behaviour of the respondent and threats made in front of our children we hold grave concerns for our family’s safety and clients. It has reached crisis situation.  We fear for our whole family’s safety.  The respondent turned up at (the children’s school's) Christmas Concert.  When my children realised she was there they became extremely distressed.  We had to leave the concert early as everyone was extremely upset and we did not want any confrontation at the event.  The respondent’s behaviour has been getting worse and we fear for the safety, physical and mental health of our family especially our children.  My ten year old now has panic attacks when she hears loud bangs as she thinks ‘Nan’ has a gun and will kill me.”

19. [19]
    On 29 November 2019, the appellant filed a number of requests for the issue of subpoenas in the Magistrates Court at Toowoomba. These requests related to Sophie Ivory, Loretta Stark, Judith Rathmell and Cecilia Dodd, and sought to compel their attendance as witnesses at the hearing of the variation application listed to proceed on 3 December 2019. On 29 November 2019, however, another magistrate had endorsed the file with the notation “request for subpoenas refused”. The notation continued:

“Not filed within the time required by the Rules and no request for abridgement of time to serve made.

Matter first listed in May 2019 for hearing on 6 Sept 2019 when respondent did not appear and Mag Stark made comment.  Matter again listed for hearing on 3 December 2019.  Respondent was in court on 20-11-19 when Mag Carroll made further directions re filing of material.

Subpoenas, however are governed by the Rules.”

20. [20]
    In making this determination to deny the issue of the subpoenas, the magistrate did not identify the Rule or Rules to which she was referring. Section 154 of the Act provides that a court hearing an application under the Act may issue a subpoena requiring the attendance of a person before the court. Rule 22 of the Domestic and Family Violence Protection Rules 2014 empowers a Domestic Violence Court to issue a direction about a number of matters including how and when a subpoena is to be issued.^[12] 

21. [21]
    On 20 November 2019, Magistrate Carroll had made an order giving the parties liberty to file further material not later than 27 November 2019. He had made no order, as he might have done, as to how and when any subpoenas were to be served. However, even if he had done so then as with any failure to comply with a direction under the Rules, a failure to comply would amount to no more than an irregularity and would “not render a proceedings, a document or step taken in (the proceedings) a nullity.^[13]

22. [22]
    Division 4 of Part 5 of the Rules deals specifically with subpoenas. It contains provisions as to how a person may request a subpoena, the form of a subpoena, the obligation of a person to comply with a subpoena and how a subpoena may be set aside. ^[14]

23. [23]
    These provisions clearly establish what is effectively a code for the issuing of subpoenas in proceedings under the Act and, unlike Rule 415 of the Uniform Civil Procedure Rules, they nowhere impose any time constraint or requirement with respect to either the filing or the service of a subpoena.  Indeed, as noted above, Rule 22(p) expressly allows the court to give directions as to “how and when” the subpoena is to be issued.  Although the provision of the Uniform Civil Procedure Rules apply to an appeal such as this,^[15] the Act makes it clear in s 142(3) that those Rules otherwise have no application to proceedings in the Domestic Violence Court.  It follows that there was no proper basis under the Rules for the magistrate to have refused to issue the subpoenas sought by the appellant.

24. [24]
    When the matter came on for hearing on 3 December 2019, the appellant again raised the issue of her attempts to issue subpoenas to two teachers, Loretta Stark and Judith Rathmell, from the School.^[16] She protested that she had had limited opportunity to prepare her case or to comply with court directions because of her on-going ill health.  At one point the following exchange occurs:^[17]

“Bench: You’ve raised the issue that you can’t do these things because you’re sick.  I want to know why?

Respondent:  But that’s not relevant now, Your Honour.  I’m here.  I was here.  I have put my material in on the 27th.

Bench: Okay.

Respondent: I’m here today.  I was here for that – all of the times I was supposed to be here.

Bench:  Well if you do that – well, we can proceed with the trial as it is.

Respondent: But I haven’t got any witnesses, Your Honour.  I don’t have any case.

Bench:  Well, that’s right, you should have ----

Respondent:  I had no one to collaborate (sic) my evidence.

Bench:  Well, see, you should of ---

Respondent:  Why was I not allowed to have those people subpoenaed in order to do so?

Bench:  Well, you – well, a magistrate’s made a decision to that effect, because it’s very late in the peace.

Respondent:  I actually went there on the Tuesday and I – my previous experience with subpoenas ----

Bench:  Why ----

Respondent:  ---- has been one week before it has to be served ---

Bench:  No, no, no.

Respondent: --- by an outside person, not me.

Bench:  Why ----

Respondent:  And I’ve always done that.

Bench:  Why ---

Respondent: I comply with every rule.

Bench:  Why didn’t you ask to have these witnesses subpoenaed way back in August or September? Why?

Respondent:  This only happened after the appeal.  This has come back to court after the appeal to – has overturned the previous ruling over the previous Domestic Violence Order.”

25. [25]
    Elsewhere, the appellant, again with reference to the two teachers, said:^[18]

“Respondent:  Your Honour, it’s the whole case.  It’s my whole case.  I didn’t do anything at the school.  They – I sat with them all night.  I was nowhere Peta and her children.  I didn’t even sight them.

Bench:  Well, you said ---

Respondent:  They’re my whole case. I’ve been denied natural justice. I can’t present my case without their testimony.”

26. [26]
    Ultimately the magistrate adjourned to consider what he described as a request by the appellant “seeking an adjournment to enable her the ability to subpoena witnesses and to support her case in assisting this application to vary”.^[19]  In his ruling, the magistrate set out the history of the matter and made reference to a number of medical reports provided by the appellant.   He concluded his ruling as follows:^[20]

“But I suppose the issue for me today now is whether – is whether she – the respondent has had sufficient time to prepare for a hearing which she says she has less two weeks to prepare.

On its face, that may – may well seem – well maybe the case. But this matters has been in the court system now since 14 December 2018.  There’s an application to vary, and it seems that little effort has been made to prepare matters in her case. She says that she has – in bed a lot and she’s – suffers medical conditions and she has a package from the NDIS.

In respect of the directions made by Magistrate Carroll [indistinct] file – to file by 27 November, I note that the respondent did file an affidavit by herself on 27 November. It was sworn on 15 March 2019….. from recollection, that is the same affidavit that she filed earlier in the proceedings, much earlier.  So in my view, the matter has been listed – the matter’s been in the court process – in the court system for a long, long time.

In the interests of justice and expediency I’ve got to balance the rights of natural justice and the opportunity for parties to be heard.  But then again the parties who want to be heard, you’ve got to seize the opportunity to do so. I am not satisfied on the medical evidence before me in particular that the respondent has seized those opportunities. Any application to adjourn is refused.  I’ll proceed with the hearing.”

27. [27]
    It is accepted that procedural fairness requires that a party to court proceedings be afforded the opportunity to present a case.^[21]  A court has a duty to ensure that a party is given a reasonable opportunity to present his or her case and refusal to grant an adjournment can constitute a breach of that duty.^[22] As to the opportunity to give or to call evidence in a proceeding Kirby J observed in Allesch v Maunz, at p184:

“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 effected 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 proceeded the common and statute law.”^[23]

28. [28]
    In his judgment, the magistrate set out the passage referred to above from the Application for Variation relating to the incident at the School. He then noted that the applicant, in her affidavit, “disputes all of that… you sat with a separate teacher, and you did not have contact”. No further reference, however, is made to those matters in the magistrate’s decision.

29. [29]
    There was clearly a conflict between the account given by the appellant and that given by the first respondent. It was a conflict of some importance given the orders which were subsequently made, particularly that which prohibited the appellant from attending or approaching within 20 metres of any school attended by the respondent’s children for the purposes of education. By the refusal to issue the subpoenas, the Court denied to the appellant her entitlement to call witnesses whose evidence she considered to be relevant to the resolution of that issue.

30. [30]
    It is submitted for the respondents that, as no adverse finding was expressly made by the magistrate in respect of the appellant concerning the school incident, it would therefore seem that he accepted the appellant’s own account of that matter. There can however be no basis for making that assumption, particularly as the only evidence relating to activity at or near a school, such as would justify the 20 metre condition referred to above, was that which involved the School.

31. [31]
    The appellant in this case was clearly a difficult litigant. That fact alone did not make the task of the magistrate in this case any easier. However, I am satisfied that there was in this case no proper basis for the denial to her of the opportunity to subpoena witnesses whom she considered to be of relevance to her case. Whether or not those witnesses might ultimately have in fact assisted the appellant’s case is not to the point. It is the fact that she was denied the opportunity to subpoena and subsequently call witnesses of apparent relevance that constitutes a denial of procedural fairness in this case. Accordingly, the appeal should be allowed and the matter remitted for hearing by a magistrate. The orders of this Court are:

32. [32]

1. The time for filing of the Notice of Appeal is extended to 6 January 2020.

2. The Appeal is allowed and the matter remitted for hearing in the Magistrates Court at Toowoomba.

3. The Temporary Protection Order is to continue in place.

4. There be no order as to costs.