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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
HBY v WBI & Anor  QDC 81
DC No 4040 of 2018
District Court at Brisbane – Unreported, 31 May 2019
14 May 2020
6 May 2020
Moynihan QC DCJ
In relation to the second respondent’s application filed 14 April 2020:
In relation to the appellant’s application made on 6 May 2020:
APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – INTERLOCUTORY ORDERS SET ASIDE OR VARIED – where a domestic violence order was made against the appellant in 2018 – where a judge of the District Court heard an interlocutory application and ordered that the appeal in the District Court was to be heard afresh in whole in accordance with s 168(2) of the Domestic and Family Violence Protection Act 2012 (Qld) – where the second respondent applies that the order be discharged – whether the discretion has miscarried?
APPEAL AND REHEARING – NATURE OF THE APPEAL – DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 – whether the appeal ought to be heard afresh in part?
District Court of Queensland Act 1967 (Qld) s 118
Domestic and Family Violence Protection Act 2012 (Qld) s 3, s 4(1), s 105, s 164, s 165, s 166, s 168, s 169(2)
Uniform Civil Procedure Rules 1999 (Qld) r 667(2)
Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170
Australia Meat Holdings Pty Ltd v Higgs  QDC 081
Commonwealth of Australia v Albany Port Authority  WASCA 185
Fox v Percy (2003) 214 CLR 118
FY v Department of Child Safety  QCA 67
GKE v EUT  QDC 248
Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors  QChC 16
Ratten v The Queen (1974) 131 CLR 510
WBI v HBY & Anor  QCA 24
A Hoare for the applicant/appellant
P McCafferty QC for the second respondent
The first respondent appeared on her own behalf
PHV Law Solicitors and Consultants for the applicant
Queensland Police Service Legal Unit for the second respondent
The first respondent appeared on her own behalf
- The second respondent applies to set aside the interlocutory order of his Honour Judge Koppenol (the Judge) made under s 168(2) of the Domestic and Family Violence Protection Act 2012 (Qld) (the Act) that the appellant’s appeal be heard afresh in whole.
The history of the matter
- The appellant and the first respondent were in a domestic relationship.
- On 14 November 2017, the second respondent, a police officer, issued a protection notice to the appellant under s 105 of the Act and then brought an application in the Magistrates Court for a protection order in favour of the first respondent.
- On 17 October 2018, after a three day trial (the trial), the learned Magistrate (Magistrate Bradford-Morgan) made a protection order in favour of the first respondent under s 37 of the Act.
- On 12 November 2018, the appellant filed a notice of appeal in this court under s 164(a) of the Act.
- On 29 March 2019, the appellant applied under s 168(2) of the Act for an order that the appeal be heard afresh in whole. An annexure to the application was comprised of 20 documents (the Annexure A documents). The material relied on to support the application included an affidavit from the appellant’s solicitor Franco Ciottarello sworn 29 March 2019. That affidavit referred to the Annexure A documents. The appellant informed the Judge: first, that the documents were not available at the trial; and, secondly, that an application to the Magistrate to have the first respondent produce her financial statements was refused. The appellant primarily submitted that the appeal should be heard afresh and in whole because “if the Court were aware of the matters contained in the Annexure A documents… the Court would not have made the order that it did.” The appellant’s primary contention was that the documents show that statements made by the first respondent as to her financial position were not true, which was a matter that went to her credit.
- On 31 May 2019, the Judge allowed the application. The Judge placed weight on the fact that the appellant had been denied the benefit of the documents at the trial and said: “The documents, especially the aggrieved’s financial statements, are directly relevant to this appeal. If they had been before the magistrate, an opposite result on the question of [the first respondent’s] credibility may have resulted.”
- On 28 June 2019, the second respondent applied to the Court of Appeal for leave to appeal the order of the Judge under s 118 of the District Court Act 1967 (Qld). That application was heard on 18 November 2019. The issues raised by the application were: first, the Court of Appeal’s jurisdiction to hear the appeal; secondly, the circumstances in which the discretion to order appeals in domestic violence cases be heard afresh should be exercised; and, thirdly, whether the discretion miscarried in the circumstances of this case. The second respondent’s primary contention in relation to the third issue was that the documents were either in the possession of the appellant at the time of the trial, could have been obtained with reasonable diligence or would not have had an important influence on the result of the case.
- On 21 February 2020, the Court of Appeal struck out the application for want of jurisdiction: see WBI v HBY & Anor  QCA 24. Justice Lyons, with whom Morrison and Mullins JJA agreed, held that s 169(2) of the Act, which provides that the decision of the appellate court upon an appeal shall be final and conclusive, precludes an appeal from an interlocutory order of the District Court in the appeal to the Court of Appeal: see . Justice Lyons, in obiter dicta said:
“An objective examination of the documents set out in Annexure A reveals that the seven documents which were not provided at the primary hearing are not inherently of such a nature or quality which could provide a basis for the primary judge to order the appeal be heard afresh. Furthermore, it would seem to me that they were not such that had they been before the magistrate, it would have resulted necessarily in a different result”: see .
“There can be no doubt that the applicant has raised some serious issues as to the basis upon which the orders of 31 May 2019 were made and whether the correct factual basis was identified to the District Court judge. I consider that there is a real issue as to whether the District Court judge’s discretion miscarried.”: see .
“There can be no doubt that the District Court judge who actually hears the appeal can revisit the interlocutory orders made on 31 May 2019.”: see .
The second respondent’s application
- On 14 April 2020, the second respondent applied to this court for an order that “the order of Judge Koppenol made on 31 May 2019 (the order) that the appeal be heard afresh in whole be discharged and in substitution thereof it be ordered that pursuant to s 168(1) of the Act the appeal be decided on the evidence and proceedings before the court that made the decision being appealed”.
- At the hearing of that application on 6 May 2020, the appellant conceded that I had jurisdiction to hear the application and that the order had been affected by a clear factual error of substance. Further, he informed the court that he consented to the order being discharged.
- My reasons for allowing the application can be stated briefly. I find that in the absence of circumstances that would engage r 667(2) of the Uniform Civil Procedure Rules 1999 (Qld), I have jurisdiction to review and set aside an interlocutory order concerning a procedural matter, where there is a mistake or irregularity and it would be unjust not to set it aside: see WBI at ; Commonwealth of Australia v Albany Port Authority  WASCA 185 -; Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170 at 177; and Australia Meat Holdings Pty Ltd v Higgs  QDC 081. Further, the exercise of the Judge’s discretion miscarried because he took into account facts which were in part erroneous. The Judge was mistaken as to the availability of the documents at the trial and the appellant’s opportunity to obtain disclosure of them. And, in circumstances where the mistake was material and led to the exceptional order that the appeal be heard afresh and in whole, it would be unjust not to set it aside. Finally, the appellant should pay the second respondent’s costs on the standard basis because she did not contribute to the error and was successful in her application.
- The consequence of the order being set aside is that s 168(1) of the Act is engaged and the appeal must be decided on the evidence and proceedings before the court that made the decision being appealed until further order.
The appellant’s new application
- At the hearing of the second respondent’s application on 6 May 2020, the appellant applied under s 168(2) of the Act for an order that the appeal be heard afresh in part. In particular, he sought to be permitted to cross-examine the first respondent at the appeal on documents 1, 2, 3, 4, 5, 6, 7, 13(a), 17, 18, 19 and 20 of the Annexure A documents. The appellant read and relied upon the affidavit of his solicitor Franco Ciottarello sworn 29 March 2019. The material parts of the Annexure A documents relied on, its purported relevance and topics of cross-examination were set out by the appellant in a document called the “evidence table” which was admitted as exhibit A on the application.
- Further, the parties informed me that they have agreed that the Judge hearing the appeal is to be provided with the annexure A documents and other documents and things the learned Magistrate ruled were inadmissible in the trial as part of the appeal record. The appellant intends to apply to the Judge hearing the appeal to admit those documents under s 168(2) of the Act.
- The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal and the start of an appeal does not affect the operation of the decision unless there is a further order of the court: see s 165 and 166 of the Act. Section 168 of the Act provides that the ‘hearing procedures’ for the appeal are:
“168 Hearing procedures
- (1)An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
- (2)However, the appellate court may order that the appeal be heard afresh, in whole or part.”
- Section 169 of the Act provides that the powers of the appellate court are:
“169 Powers of appellate court
- (1)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.”
- An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT  QDC 248 at -; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors  QChC 16 at . The powers of the appellate court may be exercised 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: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to be relied on: see Glover at . The exercise of the discretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at  and FY v Department of Child Safety  QCA 67 at -. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s 3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”: see s 4(1) of the Act.
The appellant’s contentions
- The appellant seeks to cross-examine the first respondent again at his appeal. He cannot refer to any other case in which such an order has been made under s 168(2) of the Act. It is worth noting that the Act has as one of its main objects “to maximise the safety, protection and wellbeing of people who fear or experience domestic violence, and to minimise disruption to their lives”: see s 3(1)(a) of the Act.
- The appellant contends:
- (a)The first respondent made statements that she was homeless, in need of a safe place to live, had no income to rent premises and was in crisis accommodation. Relying on statements from the National Australia Bank, Fast Lend, Airbnb, and a tenancy agreement for a property in Hamilton (i.e. documents 1, 2, 3, 4 and 16), the appellant should be permitted to cross-examine the first respondent to have her explain her statement that she had no income, to determine what funds she had available to rent premises, and to explore what, if any, action the first respondent took to rent premises, seek vacant possession of properties she owned or realise the equity in those properties. The proposed cross-examination is said to be relevant to ground 13 in the notice of appeal, the first respondent’s credit generally and that it would demonstrate that her evidence about her financial position, income and accommodation “was at least misleading”.
- (b)The first respondent has made statements concerning the cost of dental work done to repair an injury to her teeth, and of the other physical injuries she sustained as a result of an incident of domestic violence on 16 June 2016. Relying on a statement of reasons for the decision to grant financial assistance under the Victims of Crime Assistance Act 2009 (Qld) (document 5), the first respondent’s victim impact statement dated 24 April 2018 (document 6), the electronic ambulance report form (document 17), the statements of ambulance officers O’Brien and Laferty and a video recording from a body-worn camera, (documents 18, 19 and 20) the appellant should be permitted to cross-examine the first respondent about the lack of any complaint about her teeth to the ambulance officers, differences between the injuries she describes and those observed by the ambulance officers, and whether the injury to her teeth was caused in the domestic violence incident or a motor vehicle accident. The cross-examination is said to be relevant to the first respondent’s credit as to how she sustained any injury to her teeth and the Magistrate’s findings as to the location, severity and treatment of the injuries.
- I am not satisfied that there is good reason to order that the appeal be heard afresh in part because:
- First, in relation to documents 1, 2, 3, 4 and 16, the appellant knew that the first respondent owned the two properties and that she had received a substantial amount of money as compensation for a personal injury that she suffered. The first respondent was cross-examined at the trial about her financial position including as to the properties she owned, her equity in the properties, and the income she received from them: see C229.16-231.45, C235-237 and C239.19. She was also cross-examined about the compensation payment: see C235.35-236.25. The Magistrate made findings about those matters: see  and . The documents would have been available to the appellant at the time of trial with reasonable diligence. In fact, he abandoned a subpoena seeking those that comprise document 16. The new documents relied on do not warrant further cross-examination on those matters.
- Secondly, in relation to documents 5, 6, 17, 18, 19 and 20, the appellant was in possession of all those documents at the time of trial, apart from document 5. The appellant was able, but chose not to cross-examine the first respondent about whether she complained to the ambulance officers about an injury to her teeth and any differences between her evidence as to the injuries she sustained and those observed by the ambulance officers. Further, the first respondent was cross-examined at the trial about whether the injury to her teeth arose from a motor vehicle incident or an act of domestic violence and she ultimately claimed privilege on the issue: see C189.37-190.30.
- Thirdly, the documents referred to in paragraphs 22 and 23 (along with all the other Annexure A documents) will be before the judge who hears the appeal to determine if they are otherwise admissible and demonstrate a material error that would engage the court’s powers, which include the power to remit the matter.
- I am not in a position to determine the appellant’s contention that he should be permitted to cross-examine the first respondent on documents 7 and 13(a) about “the circumstances and consequences” of the acts of domestic violence on 29 October 2017 and 15 November 2017 as I do not have the documents which comprise document 13(a). In the circumstances, that part of the appellant’s application will be reserved to the judge who hears the appeal along with the issue of costs, noting that the parties agree that the costs of the appellant’s application should follow the event.
- In relation to the second respondent’s application filed on 14 April 2020 the orders are:
- The application is allowed.
- The orders of Judge Koppenol of 31 May 2019 are set aside.
- The appellant pay the first respondent’s costs on the standard basis.
- In relation to the appellant’s application made on 6 May 2020 the orders are:
- The application for the appeal to be heard afresh to permit cross-examination on documents 1, 2, 3, 4, 5, 6, 16, 17, 18, 19 and 20 is dismissed.
- The application for the appeal to be heard afresh to permit cross-examination on documents 7 and 13(a) is reserved to the judge hearing the appeal.
- The costs of the application are to be determined by the Judge hearing the appeal.
- Published Case Name:
HBY v LAP and Constable WBI
- Shortened Case Name:
HBY v LAP
 QDC 81
14 May 2020