RIS v DOL & Anor[2021] QDC 154

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   The appellant, RIS, filed an application for a domestic violence protection order at the Holland Park Magistrates Court on 4 November 2019 and obtained a temporary protection order (‘TPO’) against the respondent, DOL, on 6 November 2019 [Magistrates Court file 5282/19].

2. [2]
   The first respondent, DOL, filed an application for a domestic violence protection order in the Holland Park Magistrates Court on 6 December 2009 and in turn obtained a TPO against the appellant on 11 December 2019 [Magistrates Court file 583/19].

3. [3]
   Both applications were listed for review hearings on 11 March 2020, with subsequent mentions on 29 April 2020, 22 July 2020 and 12 August 2020. I note in passing that this was, of course, during a time when courts in all jurisdictions were directly affected by the COVID-19 pandemic difficulties.

4. [4]
   Relevantly, the notice of adjournment issued on 22 July 2020 on each file identified that the proceedings were “adjourned for review” at 2 pm on 12 August 2020. Directions were given at the mention on 11 December 2019 (relevantly, after both the application and, effectively, the cross-application had been filed) in respect of filing affidavits as evidence-in-chief of witnesses, and other ancillary matters.

5. [5]
   When the matters came before the learned magistrate at the Holland Park Magistrates Court on 12 August 2020, each of the appellant and the first respondent appeared personally. The learned magistrate proceeded to interrogate each of the parties as to why an order was necessary or desirable, based on their applications [T1-2 l17-T1-3 l35; T1-3 l36-T1-20 l1].

6. [6]
   During the course of the learned magistrate’s interrogation of the first respondent, the learned magistrate said:

Is there anything else you wish to add?  Otherwise, I am going to determine these applications on the basis of the evidence filed [T1-19 ll25-26]

– an apparent reference to the affidavits of the parties already filed in both proceedings.  The learned magistrate proceeded to ask the appellant what she wished to say in respect of her application or the application against her [T1-20 ll4-5], and she responded, “No,” but then went on to answer some brief further questions from the learned magistrate, who proceeded to state:

Well, I am certain I can certainly finalise matters today … and will do so. [T1-21, ll14-18]

7. [7]
   The learned magistrate then went on, in brief reasons, to state the following:

1. (1)
   There is absolutely no utility in … these proceedings continuing any further without determination … [D2, ll1-2]
2. (2)
   Neither party will be at liberty to cross-examine the other personally at a hearing. [D2, ll2-3]
3. (3)
   The evidence-in-chief that has been filed by both parties, is entirely problematic. [D2, ll3-4]

8. [8]
   After briefly discussing the evidence and concluding that both parties had committed acts of domestic violence, the learned magistrate went on to dismiss the appellant’s application, and grant the respondent’s application, in standard terms, for a period of five years, on the basis that the respondent was the party most in need of protection [D3, ll26-36].

Grounds of appeal

3. (1)
   The learned magistrate did not have the power to make the orders that he made in the manner that his Honour made them;

3. (2)
   The learned magistrate erred in not hearing either application in accordance with law, or otherwise not proceeding according to law;

3. (3)
   The learned magistrate erred in dismissing the appellant’s application;

3. (4)
   The learned magistrate erred in granting the respondent’s application.

The law – appeals

9. [9]
   Relevantly, the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’) s 164 provides:

A person who is aggrieved by any of the following decisions of a court, may appeal against the decision –

3. (a)
   a decision to make a domestic violence order;

…

3. (c)
   a decision to refuse to make a protection order.

10. [10]
    DFVPA s. 166(1) & (2) provides that:

The order made remains in operation, unless it is stayed by the original court, or an appellate court. 

11. [11]
    DFVPA s. 168(1) provides:

An appeal must be decided on the evidence in proceedings before the court that made the decision being appeal.

12. [12]
    DFVPA s. 168(2) provides that:

The appellate court may order that the appeal be heard afresh, in whole, or part.

13. [13]
    Moynihan QC DCJ outlined the approach to DFVPA s. 168(1) & (2) in HBY v WBI & Anor [2020] QDC 81, as follows:

“[18] An appeal under s. 168(1) of the Act is by way of rehearing:  see GKE v EUT [2014] QDC 248 at [2]-[3];  Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at 73. 

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 [76].  The exercise of the discretion under s. 168(2) does not convert the rehearing into a hearing de novo:  see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. 

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.”

14. [14]
    The relevant provisions of DFVPA s.169 provide:

Powers of appellate court

1. (1)
   In deciding an appeal, the appellate court may –

1. (a)
   confirm the decision appealed against;  or
2. (b)
   vary the decision appealed against;  or
3. (c)
   set aside the decision and substitute another decision;  or
4. (d)
   set aside the decision appealed against, and remit the matter to the court that made the decision.

2. (2)
   The decision of the appellate court upon an appeal shall be final and conclusive.

15. [15]
    Pursuant to DFVPA s. 167, “the police commissioner has a right to appear and before the appellate court on an appeal under this division [of the DFVPA]” and has chosen to join this appeal as second respondent. I have the benefit of an appearance on behalf of the police commissioner and detailed written submissions, as well as oral submissions, for which I express my gratitude.

The first respondent’s application

16. [16]
    In an application filed 25 May 2021, the first respondent seeks an order that this appeal be summarily dismissed, with costs, for non-compliance with District Court Practice Direction 7/22. The application refers to sections 2 & 5 of the Practice Direction, and Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) rr. 79, 452(2) and 982. 

Discussion – Application for Summary Dismissal

17. [17]
    The UCPRs apply to appeals under the DFVPA (s. 142(2)), although not to court proceedings under the DFVPA (s.142(3)).

18. [18]
    The relevant Practice Direction applicable to these proceedings is, as the first respondent has correctly identified, District Court Practice Direction 7 of 2020. Relevantly, paragraph 4 provides:

4. Registrar’s directions and conference

Unless there is a specific prohibition in an Act, Regulations or Rules or an order of the Court the Registrar may, if considered appropriate or if a party requests, make a direction that:

3. (a)
   A party files a document.

3. (b)
   The time in relation to the filing of a document be extended or abridged.

3. (c)
   The parties attend at a conference with the Registrar to settle or clarify outstanding steps to progress the determination of the Appeal including any issue regarding a variation in the time given as the estimate of hearing in the Certificate of Readiness.

Under Rule 452(2) (UCPR) a Registrar may constitute the Court for the purposes of hearing and determining an application for such direction.

Any failure to comply with any part of this Practice Direction or with a direction made by the Registrar under r. 789 (UCPR)may result in the Appeal being listed by reference of a Registrar under r. 982 (UCPR) before a Judge and consequently:

1. (i)
   an order for costs being made against the party at fault; and/or

2. (ii)
   the Appeal being struck out.

Any party may apply to a Judge for a special direction or such other order as may be necessary to facilitate the proper hearing and determination of the Appeal.

When a request is made to the Registrar for a direction under this paragraph, the request must be copied to all other parties to the appeal and notice of any direction under this paragraph is to be given to all parties to the appeal.

Further discussion 

19. [19]
    The difficulty with the first respondent’s application is that the Practice Direction is designed to facilitate appeals progressing promptly, or alternatively, being struck out for want of prosecution. The second respondent’s application is filed, as noted, on 25 May 2021, by which time outlines of argument had been filed by all parties, including the first respondent; the certificate of readiness had been signed by all parties, including the first respondent; and a hearing date for the appeal had been listed (today). The Practice Direction, therefore, had no work left to do; it is not designed to summarily dismiss appeals otherwise proceeding properly to hearing in this court, whether or not time limits have been strictly complied with, and is therefore, in my view, not a basis for dismissing the appellant’s appeal in this matter. Accordingly, the first respondent’s application of 25 May 2021 seeking to strike out the appeal for failure to comply with time limits, is refused.

Procedural fairness

20. [20]
    DFVPA s. 38 provides:

Hearing of application – appearance of respondent

1. (1)
   This section applies if a respondent appears before the court that is to hear and decide an application for a protection order. 
2. (2)
   The court may –

1. (a)
   hear and decide the application;  or
2. (b)
   adjourn the application, whether or not it makes a temporary protection order under division 2;  or
3. (c)
   subject to subsection (3), dismiss the application without deciding it.

21. [21]
    A court may only make a protection order if satisfied of the requirements of DFVPA s. 37(1)(a), (b) & (c), and subject to the provisions of DFVPA s. 37(2) & (3).

22. [22]
    Relevantly, each of the appellant and first respondent were, in the Magistrates Court proceedings, “respondents” to what were effectively cross-applications for protection orders (DFVPA s.38), and in the context of those proceedings, the only alternatives available to a court were to hear and decide the applications (DVFPA s. 38(2)(a)), or adjourn the application (DFVPA s. 38(2)(b)).

23. [23]
    Each of the applicants (in the Magistrates Court proceedings) appeared self-represented at the review on 12 August 2020. DFVPA s.151 sets out a process which can, on the application of a party, or on the court’s own initiative, result in cross-examination of a protected witness (relevantly, the aggrieved – see DFVPA s. 150), with that cross-examination to be conducted by a lawyer acting for the respondent.

24. [24]
    The learned magistrate made no inquiries as to whether either or both of the appellant and the first respondent intended to be represented at trial. Rather, the learned magistrate observed (without calling for submissions or seeking further information), “Neither of you can cross-examine the other” [T1-12, ll11-12], and then stated (incorrectly at law, in my view), “I am not going to get any better evidence than what I already have before me” [T1-12, ll12-13].

25. [25]
    As is abundantly clear from the Magistrates Court file, the appellant had previously been legally represented, and conversely the respondent was not given the opportunity to obtain legal representation afforded by the DFVPA s.151(4), depending, of course, on submissions made by the appellant.

26. [26]
    What then are the obligations of procedural fairness in the context of the DFVPA? In DMO v RPD [2009] QDC 92, McGill DCJ, dealing with the predecessor legislation, the DFVPA (1989), stated:

[5] It follows that, if a court is hearing and determining the application for a protection order, the court must receive material which provides a proper basis for satisfaction of the matters required by subsection (1), and must make a finding that it is satisfied of those matters before it can make an order.  Further, it may do so only after a hearing which complies with the principles of procedural fairness.  That follows from the fact that the power to make a protection order is conferred on a court, the fact that s. 48 speaks of the court hearing and determining the matter, that is to say determining only after it has been heard, and the fact that there is no provision in the Act which excludes the obligation to comply with the rules of procedural fairness. 

[6] As well, making a protection order is a serious step to take.  Such an order may, for example, prohibit a person from entering, attempting to enter or remaining in premises even though the person owns or has another legal or equitable interest in the premises, or even from approaching within a stated distance of the premises:  s. 25(3)(b).  It can prevent a person from approaching within a stated distance of a named person, or from contacting a named person, or from locating or attempting to locate that person:  s. 25(3)(c), (d), (e).  In addition, it can require a respondent to return property to the aggrieved, or allow an aggrieved to recover property: s. 25(4). The order has serious consequences for a person who holds or wishes to hold a licence under the Weapons Act.  It may prohibit a person from possessing a thing, possession of which would otherwise be lawful: s. 26.  A breach of a protection order is a criminal offence if the respondent was present when the order was made, or was served with a copy of the order or was told about it by a police officer and is potentially punishable by a term of imprisonment;  it is not uncommon for terms of imprisonment to be imposed.  In those circumstances, making such an order is plainly a serious matter, so that one would expect the rules of procedural fairness to apply (Kioa v West [1985] 159 CLR 550, 584). 

[7] There is also the consideration that by s. 38(2)(a) the provisions of the Justices Act 1886 apply to the proceeding unless the application of that Act is inconsistent with the Act.  One of the provisions of the Justices Act is s. 146(1), which provides for the course of a summary trial if the defendant pleads not guilty, and contemplates that witnesses will be heard for the complainant, and then witnesses heard for the defendant.  Section 148 also provides, that in such matters, the procedure for examination and cross-examination of witnesses and addressing the court is to be the same as in the Supreme Court on the trial of an issue of fact in an action at law. 

[8] To some extent, these procedures are modified by the terms of s. 84(2) that, in proceedings with a view to making a protection order,  “[t]he court … may inform itself … in such a matter as it … thinks fit and is not bound by the rules or practice as to evidence.” In addition, s. 84(3) provides expressly: “The court or magistrate need not have the personal evidence of the aggrieved before making a domestic violence order.”

[9] Provisions of this nature are familiar, and they do not exclude an obligation to accord procedural fairness.  [See e.g. Commercial and Consumer Tribunal Act 2003 s. 47, which contains a similar provision in subsection (4) but expressly preserves the rules of natural justice in subsection (2).]  Nor do they have the effect that an order can be made without any proper basis;  the position is simply that the formal rules of evidence do not apply, so that it would be open, for example, in an appropriate case to receive material which would ordinarily be excluded as hearsay, or to receive evidence in written form.  But there must still be evidence, in the sense of there being some material put before the court which provides a rational basis for arriving at the state of satisfaction contemplated by s.20, and it must be put before a court in a way which gives the opposite party the opportunity to challenge that evidence, and to put the opposite party’s case in relation to the matter. 

[10] Ordinarily, therefore, one would expect that the hearing of an application under the Act, where the respondent appeared and contested the matter, would proceed in much the same way as a civil trial;  the applicant would give evidence or call evidence, and the applicant’s witnesses would be cross-examined by the respondent, and the respondent would then give or call evidence, and be subject to cross-examination.  One would expect that the hearing contemplated by s. 48 would be a hearing in the conventional sense.  I note that s. 39 of the Act contains a mechanism by which a person can be summoned to give evidence as a witness, and the section contemplates that that person will give evidence as a witness at a hearing on oath or affirmation.

27. [27]
    His Honour then concluded at [12]:

The principles of procedural fairness apply in these circumstances and … those principles in this context [ie proceedings under the Domestic and Family Violence Protection Act 1989] do require a proper hearing, where there is evidence put forward in support of the application which can be tested, and an opportunity to present an opposing case by way of evidence. 

28. [28]
    In LKL v BSL [2015] QDC 337, Dick DCJ, citing DMO v RPD [2009] QDC 92, [5], in dealing with an appeal under the current legislation (DFVPA 2012), stated:-

[10] There is no doubt that if a court is hearing and determining the application for a protection order, the court must receive material which provides a proper basis for satisfaction of the matters required by legislation and that the Court may do so only after a hearing which complies with the principles of procedural fairness. 

29. [29]
    In respect of this appeal, it is abundantly clear that the learned magistrate failed to provide either of the appellant and the first respondent procedural fairness. Specifically, the learned magistrate failed to provide not only a fair hearing, but any hearing. The learned magistrate proceeded to make a decision on material already filed without enquiring of the parties whether they wished to cross-examine each other; without dealing with any consequential issues under the DFVPA s.151; without hearing submissions by, or on behalf of each party, in respect of the questions of law and matters of fact relevant to the making or refusing of protection orders; and making orders granting one application and dismissing the other, at a review mention at which the parties were entitled to expect that the court would, unless the proceedings resolved, set a date for trial.

30. [30]
    I stress that the failure of the learned magistrate to provide procedural fairness to either party – that is, the appellant and the first respondent, was not a matter that was in any way the responsibility of either the appellant or the first respondent. Both were treated equally unfairly, in terms of their entitlement to not just a fair hearing, but any hearing. As the appellant’s counsel conceded, were the positions reversed and had the order been made in favour of the appellant rather than the first respondent, he could not ethically or legally resist an appeal by the respondent.

31. [31]
    It follows that each of the appellant’s grounds of appeal have been made out, and the appeal must succeed.

Orders

32. [32]
    The orders made at the Holland Park Magistrates Court on 12 August 2020, dismissing the appellant’s application and granting the respondent’s application, be set aside.

Rehearing of the matter

33. [33]
    The powers of an appellant court under DFVPA are set out at s.169(1). In this case, one of the alternatives is s.169(1)(d), which provides:

…set aside the decision appealed against and remit the matter to the court that made the decision.

34. [34]
    In the case before me, the decision was made by a learned magistrate at the Holland Park Magistrates Court. The submission of the appellant is that the matter should be remitted back (i.e. pursuant to s. 169(1)(d)) to the Magistrates Court, although as a matter of practicality, for what would hopefully be a more prompt hearing, to be the Brisbane Central Magistrates Court, and before a different magistrate. The submission for a different magistrate is perhaps unsurprising in the circumstances, given the views that I have expressed about the approach of the learned magistrate in this case to the issue of procedural fairness, for each of the appellant and the first respondent. The issue in respect of which Magistrates court should hear it is essentially a resources issue.

35. [35]
    DOL, conversely, seeks a further hearing of the proceedings in the District Court and identifies that there have been significant delays in the matter proceeding in the Magistrates Court hearing, and expresses (understandably) concerns about further delays in the matter, if it were remitted.

36. [36]
    Mr Fraser, who appears on behalf of the Commissioner of Police, expresses the view that because these are private applications and the Queensland Police Service would not be further involved, unless it were requested, depending on what happened with the matter, then it does not express a particular view one way or the other.

37. [37]
    In all of the circumstances, in my view, given that it is sought to litigate the matter further, with an expressed intention by the appellant to file further material, no doubt, of course, if that were to occur, the first respondent would quite properly be seeking orders permitting him to file further material, and given what is likely to be cross-applications for cross-examination of each of the appellant and the first respondent at any hearing, those are all practical issues which, in my view, on balance, persuade this court that the appropriate step is to remit the proceedings back to the Magistrates Court. Given the views that I have expressed about the failure to provide procedural fairness, in respect of the learned magistrate who conducted the review mention on 12 August 2020, it is entirely appropriate that these proceedings proceed before a different magistrate.

38. [38]
    In a practical sense, I accept that the Brisbane Central Magistrates Court may be the more appropriate place for the matter to be progressed efficiently and hopefully promptly – matters about which DOL has quite properly expressed concern, in terms of the delays to date.

39. [39]
    Accordingly, I make the following further orders, that the applications be remitted to the Brisbane Central Magistrates Court for rehearing, before a different magistrate.

Temporary protection orders

40. [40]
    By consent of the parties, I make temporary protection orders in the standard conditions under s 56 of the DVFPA in favour of each of the appellant, RIS, and the first respondent, DOL, as follows:

1. The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
2. The respondent must be of good behaviour towards the children [names redacted]; and must not commit associated domestic violence against the children; and must not expose the children to domestic violence.