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- Unreported Judgment
McQuinn v Dwyer QDC 252
DISTRICT COURT OF QUEENSLAND
McQuinn v Dwyer  QDC 252
59 of 2021
Magistrates Court at Mareeba
30 July 2021 ex tempore
30 July 2021
PEACE AND GOOD BEHAVIOUR – appeal pursuant to s 222 Justices Act 1886 – where the appellant appeals against a peace and good behaviour order made against him pursuant to s 7 of the Peace and Good Behaviour Act 1982 – where the appellant seeks leave to adduce new evidence on appeal – whether the evidence sought to be adduced is relevant – whether the evidence might reasonably have led the learned Magistrate to make a different order – whether evidence led in the Magistrates Court supported the “matters of complaint” on the balance of probabilities – whether the Magistrate made adequate findings as to the “matters of the complaint” – whether the appellant was afforded procedural fairness at the hearing
Justices Act 1886 (Qld), s 222, s 223(1), s 223(2)
Peace and Good Behaviour Act 1982 (Qld) s 5, s 7, s 9
Briginshaw v Briginshaw  60 CLR 336
Gallagher v The Queen  169 CLR 392
Harvey v Walker  QDC 180
Hughes v Talty & Anor  QDC 145
Laidlaw v Hulett  2 Qd R 45
Pavlovic v Commissioner of Police  1 Qd R 344
Tolhurst v Villan  QDC 263
The appellant appeared on his own behalf
O'Reilly Stevens Lawyers for the respondent
- FANTIN DCJ: This is an appeal from a decision of a Magistrate at Mareeba on 15 March 2021 to make an order under the Peace and Good Behaviour Act 1982 (Qld), (the Act). That date was the first return date for a complaint and summons filed by the respondent on 9 February 2021.
Magistrates Court decision
- Both the appellant and the respondent appeared before the Magistrate self-represented. After hearing from each of them, the learned Magistrate made a Peace and Good Behaviour Order for a term of two years containing seven conditions. The conditions were as follows:
That the defendant keep the peace and be of good behaviour towards the complainant for a period of two years from this date.
The defendant must not:
- Threaten to assault or do any bodily injury to the complainant or any person under the care or charge under the complainant;
- Threaten to procure any other person to assault or to do any bodily injury to the complainant, or any person under the care or charge of the complainant; or
- Threaten to damage any property of the complainant; or
- Threaten to procure any other person to destroy or damage any property of the complainant; or
- Defendant is prohibited from going to, entering or attempting to enter premises where the complainant resides;
- Defendant is prohibited from following or approaching the complainant when the complainant is at any place, except when attending any court or Tribunal, or for the purpose of the present QCAT proceedings, counselling or other mediation;
- Defendant is prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact a complainant, except when attending any court or Tribunal or for the purpose of the present QCAT proceedings, counselling or other mediation.
- The order was expressed to have been made by consent.
- On the hearing in this Court, the appellant, Mr McQuinn, remained self-represented and the respondent, Ms Dwyer, was represented by a solicitor. I received and considered their respective documents, including written submissions and other material, as well as hearing oral submissions from both of them.
- The appeal is pursuant to section 222 of the Justices Act 1886 (Qld). By section 223 of that Act, the appeal is by way of rehearing on the evidence given in the proceeding before the learned Magistrate, subject to any new evidence sought to be adduced on appeal. I will return to that topic later.
- The learned Magistrate’s order was made pursuant to section 7 of the Act. Section 9 of the Act provides, in effect, that the proceedings and procedures under the Justices Act 1886 (Qld) applicable in the case of prosecution of a summary offence apply to proceedings by way of complaint under the Peace and Good Behaviour Act 1982 (Qld).
- The relevant legislative framework for the making of a peace and good behaviour order has been analysed in other decisions of this Court. I respectfully adopt the analysis of the legislative framework in Harvey v Walker  QDC 180 of Bowskill QC DCJ (as her Honour then was) at paragraphs 5 to 10 in particular, and in Tolhurst v Villan  QDC 263 Morzone QC DCJ, particularly paragraphs 8 to 15. Although the section numbers have changed, the effect of them has not.
- Relevantly, section 5 of the Act sets out the circumstances in which a person may make a complaint to a justice of the peace. There are a number of essential prerequisites for such a complaint. Further, it is a requirement under subsection (2A) of section 5 that any such complaint made pursuant to subsection (1) must be “substantiated to the justice’s satisfaction”. That is not the only requirement, however. The justice must also consider it “reasonable in the circumstances for the complainant to have the fear mentioned” in subsection (1) or (2).
- Once a justice makes a decision to make a complaint and summons, the Magistrates Court has certain powers under section 7 of the Act to make orders.
- Because proceedings on a complaint under the Act are civil, not criminal, in nature, the matter of the complaint does not need to be proved beyond reasonable doubt. However, it is well established that before an order can be made by a Magistrate under the Act, the strength of the evidence necessary to establish the basis for an order must take into account the seriousness of the allegation made against the person against whom the complaint is made.
- That is, given the serious nature of the matters referred to, including threats to do or to procure acts ordinarily associated with violence to person or property, in applying the civil standard of proof of the balance of probabilities, the Magistrates Court must apply the principle in Briginshaw v Briginshaw  60 CLR 336: see Laidlaw v Hulett  2 Qd R 45 at 49 per Fitzgerald P, 52 per McPherson JA and 54 per Shepherdson J.
- Evidence is required to be given on oath in such a proceeding under the Justices Act 1886 (Qld).
- The appeal is by way of rehearing on the evidence in the proceeding before the Magistrate. See section 223(1) of the Justices Act 1886 (Qld). The court is required to conduct a real review of the hearing and the Magistrate’s decision and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching weight to the Magistrate’s view. In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.
Grounds of appeal
- The notice of appeal prepared by Mr McQuinn is expressed in narrative form over two pages. Some of the matters set out in that relate to his grounds of appeal. Other matters are more properly characterised as new evidence.
- In summary, the appellant’s complaints can be grouped in the following way:
- he disputes the factual allegations in the complaint and summons made by the respondent on the basis that they are untrue;
- he says that he was denied procedural fairness and did not receive a fair explanation or fair hearing before the learned Magistrate. With respect to that second issue, he explains why he did certain things on that day. He says that he was not afforded the opportunity to respond to the factual allegations made by the respondent, nor to the proposed conditions of the order, and that he did not understand them at the time the Magistrate made the order; and
- finally, he says that the order will have a significant adverse impact on an application for residency that he has made or is making to the Department of Immigration, and that he was not aware of this consequence at the time he appeared in court on the 15th of March 2021.
Application to adduce fresh evidence
- In support of his grounds of appeal, the appellant seeks leave pursuant to section 223(2) of the Justices Act 1886 (Qld) to adduce new evidence on appeal. The respondent’s solicitor opposed the application, but was content for me to receive the new evidence in order to consider the parties’ submissions subject to my final ruling on that issue.
- Pursuant to section 223, the court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. The reference to “special grounds” indicates there must be good reason identified to justify a departure from the application of the rule in section 223(1) that an appeal under section 222 is by way of rehearing on the evidence given in the proceedings before the justices.
- The principles applicable in considering such an application are not in dispute. The following considerations are a useful guide for the purposes of identifying the kind of special grounds which might be said to justify a grant of leave.
- First, whether the evidence relied on could, with reasonable diligence, have been produced by the appellant at the relevant hearing. Second, whether the evidence is apparently credible (or at least capable of belief). And third, whether the evidence, if believed, might reasonably have led a tribunal of fact to return a different decision or make a different order. See Pavlovic v Commissioner of Police  QCA 134;  1 Qd R 344, at paragraph 30. See also Gallagher v The Queen  169 CLR 392, at 395 and 396.
- The first consideration, that is whether the evidence relied on could, with reasonable diligence, have been produced by the appellant at the hearing, is not a universal and inflexible requirement. The strength of the fresh evidence may, in some cases, be such as to justify interference with the decision, even though that evidence might have been discovered before the hearing.
- As to the second consideration – whether the evidence is apparently credible, or at least capable of belief – the issue is not concerned with whether the appellate court, acting upon its own view, accepts the evidence as true, but rather upon that view most favourable to an appellant, which in the court’s view, a jury of reasonable people may properly take.
- In this case, the new evidence comprises five categories. First, there is a chronology of events prepared by the appellant, which is in the form of an unsworn statement by him. Second, there are emails between the appellant and the real estate agent, and the respondent and the real estate agent about one of the factual allegations referred to in the complaint and summons. Third, there are photographs of the relevant premises. Fourth, there is a tenancy agreement. And fifth, there were oral statements and matters in the notice of appeal from the appellant about the adverse consequences to him of the order made and its conditions, including upon his application for residency.
- Leave should only be granted to adduce new evidence if the evidence is relevant. At this stage, it is difficult to see the relevance of items 3 and 4 to the facts in issue in the proceeding. Item 3 is the photographs of the premises, and item 4 is the tenancy agreement.
- However, items 1, 2, and 5 – that is, the chronology of events, the emails, the Facebook post, and the submissions about the consequences for the residency application – are, in my view, relevant to the threshold question whether there was evidence upon which the court could be satisfied, on the balance of probabilities, that the requirements of section 5(1) of the Act had been met. And they are relevant to the exercise of the Magistrate’s discretion under section 7 of the Act.
- That is because the appellant disputes the factual allegations made by the respondent in her complaint.
- In order to understand what is alleged and what is in dispute, it is necessary to refer briefly to the allegations of fact in the complaint and summons.
- The complaint and summons comprises the court form, together with one handwritten page, apparently affirmed by the complainant, who is now the respondent in the appeal. In the cover sheet for the complaint and summons, subsection (1)(a) and subsection (1)(c) of section 5 of the Act have been circled. Subsection 5(1)(a) states:
“(1) A person (the complainant) may make a complaint to a justice of the peace that a person has threatened –
- (a)to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or”
- Subsection 5(1)(c) states:
“(1) A person (the complainant) may make a complaint to a justice of the peace that a person has threatened – …
- (c)to destroy or damage any property of the complainant; or”
- Subsections (a) and (c) are alternatives.
- But there is an additional requirement in subsection (1), which states:
“and that the complainant is in fear of the person complained against (the defendant)”.
- In this case, the complainant circled subsection (a) and subsection (c).
- In support of that allegation, there is half a page of handwritten information attached to the complaint. It seems to contain three separate allegations of fact. The first is that on 28 June 2020, the appellant illegally trespassed on the respondent’s property and assaulted her dog. The second is that on the following day, 29 June 2020, the appellant threatened to illegally enter the respondent’s house to remove all of the property from the house and throw it on the road. The respondent says she reported that to the police. The final allegation in the complaint and summons is that some eight months later, on 8 February 2021, the appellant sent out a public notice on a Facebook page requesting the respondent’s new address, claiming to have something of hers. The respondent alleged that the appellant did not have anything of hers, and that he simply wanted her new address, “most likely to cause damage to my new residence and property”. She said his threatening behaviour had been reported to the police.
- By way of background to the allegations, the respondent was renting a rental property in Kuranda. The appellant was the owner of that property, but he did not deal with the respondent directly. The property was managed through a real estate agent. Without descending into all of the details of the disputed allegations of fact, the appellant strenuously denies the factual allegations in the complaint and summons. He says they simply did not occur in the way described at all. He accepts that he posted a Facebook post on 8 February 2021 inquiring about the respondent’s address, but he explained the reason for that was to provide her with an invoice.
- Specifically, he disputes, with respect to the first allegation, that on 28 June 2020, he illegally trespassed on the respondent’s rental property, or that he assaulted her dog.
- With respect to the second allegation, he denies that on 29 June 2020, he threatened to damage her property in the way alleged.
- With respect to the third allegation, he denies that via his Facebook post of 8 February 2021 he threatened to damage or destroy any property of the respondent.
- The documents sought to be adduced by the appellant as new evidence (the chronology, the emails, and the Facebook post) are relevant to the question of whether these events occurred or not.
- I turn then to consider the three limbs of the test for leave to adduce new evidence. All of the documents sought to be relied upon were available at the mention before the Magistrate on 15 March 2021, save for any advice the appellant had received with respect to his immigration application and the consequences of the order for it. The appellant has explained why he did not ask at the mention on 15 March 2021 that the matter proceed to hearing. He says that when he was issued with the summons by police, he was given certain advice by the police officer serving it. Upon receipt of the summons, he went to the Magistrates Court Registry. He asked for advice about what to do in response to the complaint and summons, and he asked about the effect of an order, if one were made under the Act. It seems fairly clear from his submissions that he misunderstood whatever he was told.
- He then discussed the matter with his family. He made inquiries about the cost of obtaining legal advice. He received, he says, a quote for some $16,000. He decided that he simply could not afford to be legally represented. In his words, he said he decided to “take the rap for something he did not do” to avoid the matter going further in court. He says that when he went to court on 15 March 2021, he was not in a frame of mind to defend himself. He submits that he did not totally understand what was going on in court. He submits that the respondent made a number of submissions to the learned Magistrate about factual matters that he was simply unaware of, or which were untrue. After the order was made in the Magistrates Court, he went to the registry the following day and asked them to explain what the order meant and what had occurred. At that point, the registry did not have the order, and they told him to come back the following day or within a couple of days. He did so. The registry staff explained the order to him. He then sought and received advice from his migration agent that he would have to declare this order as part of his migration application for residency, and that the existence of the order may well prejudice his application. He again sought legal advice. With respect to legal representation on an appeal, the cost quoted to him was prohibitive. Hence, he represents himself in the appeal.
- In my view, the appellant has adequately explained why he did not produce that evidence at the mention in the Magistrates Court. And for reasons I will explain in due course when I deal with procedural fairness, his submission should be accepted.
- With respect to the second and third limbs of the test for leave to adduce new evidence, although the evidence in its current form is unsworn, it is, in my view, apparently credible, or at least capable of belief, taking the view most favourable to the appellant of it, as I am required to do.
- In addition, with respect to the third limb, the evidence, if believed, might reasonably have led the learned Magistrate to make a different order. That is because it would have been apparent, first, that all of the factual matters the subject of the complaint were disputed, and ought to be the subject of a contested hearing. Second, that the consequences for the appellant of the making of the orders could be potentially quite severe, and have an adverse impact on his application. That may well have been a factor relevant to the exercise of the learned Magistrate’s discretion, including whether any order should be made at all, and if it was, the appropriate conditions to be imposed.
- Taking all of those matters into account, I grant leave to adduce the new evidence on this appeal. On the basis of the new evidence, I would have allowed the appeal, and remitted the matter to the Magistrates Court for rehearing.
Errors of law
- But there are other, more pressing reasons, for making such an order, even without the new evidence. I turn to those now.
- In my view, the learned Magistrate erred in law in two ways. The first is with respect to jurisdictional matters, and the second is with respect to procedural fairness.
- On the first issue, when the complaint and summons is properly considered, it is clear that there was no evidence upon which the learned Magistrate could be satisfied of section 5(1)(a) of the Act. That is, there was no evidence of any kind in the complaint and summons that the appellant had threatened to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant.
- For completeness, I add that there was no evidence of any kind relevant to subsection (b). That is, no evidence that the appellant had threatened to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant.
- Despite the absence of that evidence, two of the conditions of the order made by the learned Magistrate were in terms of subsections (a) and (b) of section 5(1) of the Act. That is, the order contained conditions that the defendant (the appellant) must not threaten to assault or do any bodily injury to the complainant or any person under the care or charge of the complainant, or threaten to procure any other person to assault or to do any bodily injury to the complainant or any person under the care or charge of the complainant.
- Thus, despite the fact that the complaint and summons form had circled subsection (a) of subsection (1), there was no evidence of those matters in the complaint and summons.
- I raised the question of the absence of evidence with respect to subsection (a) with the respondent’s solicitor. She correctly conceded that there was no evidence of that in the complaint and summons. It follows that the learned Magistrate did not have power to make the order in question (specifically, the first two conditions), because there was no evidence of that.
- It is difficult to see how the justice of the peace, acting properly under section 5(2A) could possibly have been satisfied that the matter the subject of the complaint was “substantiated to the justice’s satisfaction”, or considered “it is reasonable in the circumstances for the complainant to have the fear mentioned in the subsection”.
- The fact that the learned Magistrate referred to the appellant consenting was not sufficient to make those orders in the absence of any evidence about those matters.
- I turn now to the second problem which infected the decision, which is one of lack of procedural fairness. The appellant submits he did not receive a fair explanation from the learned Magistrate during the hearing, and he did not understand the nature of the order proposed, nor the consequences of it.
- According to the transcript, the hearing commenced at 9:43 am, and the learned Magistrate delivered his decision at 9:48 am. Therefore, the time taken by the hearing was no more than five minutes.
- During the hearing, apart from announcing his appearance, the appellant is recorded as speaking only twice, and his submissions occupy only four lines in two and a-half pages of transcript. The learned Magistrate spoke to the appellant at the start, saying:
“That order, if made against you, simply says that you must keep the peace and do good behaviour for a period of time, and that you must not threaten the complainant, essentially, and it’s what it says. What’s your attitude to the matter of the complaint?”
- The first point to be observed about that statement is that that was not, as it turned out, an accurate or complete summary of the terms of the order sought, nor ultimately made. In response to that question, the appellant said:
“Your Honour, I have no problem staying away from Ms Dwyer. I’ve never approached her.”
- The appellant did not respond directly to the question asking what his attitude to the matter of the complaint was. His statement that he had never approached the respondent could have been construed as a denial of the allegation in the complaint. But the learned Magistrate did not ask the appellant whether he accepted the allegations in the complaint and summons. The learned Magistrate went on to explain to the appellant his options. He said:
“So today you can say to me, “Look, I’ll agree to the order” – not a protection order – “An order under the Peace and Good Behaviour Act being made against me”. Or you could say, “Look, I need to get some legal advice. I would like to get it adjourned”. Although, it was served back on the 15th of February, so you would have had the chance to do that. Or you could say, “Look, I want to contest it. I want it to go to a trial”, in which case, I would make directions about the filing of evidence so you could consent, contest or adjourn. Essentially, they’re your options.”
- In response to this, the appellant said:
“Your Honour, I have no problem staying away from Ms Dwyer. I have no desire to be anywhere near her.”
- It is apparent that his answer showed a lack of understanding of the terms of the order proposed and its consequences. The learned Magistrate then asked the appellant to have a seat, and the balance of the hearing was taken up with him hearing submissions from the respondent. The respondent made submissions about other alleged prejudicial acts taken by the appellant against her, including in her workplace (which were not referred to in the complaint and summons). The respondent also made submissions about having brought an application in the Queensland Civil and Administrative Tribunal (QCAT), which she said could go for at least 18 months to two years.
- There was, following that, no further discussion between the learned Magistrate and the appellant.
- The next thing that occurred was that the learned Magistrate announced his decision. He stated:
“With your consent, I will make an order against you for a period of two years.”
- He then proceeded to read out the conditions of the order. The learned Magistrate did not ask the appellant whether he consented to the order in the terms proposed to be made. He did not ask the appellant whether he wished to make any submissions in reply to the respondent’s oral submissions about matters not the subject of the complaint and summons, which the Magistrate appeared to take into account in the imposition of conditions. And he did not clarify whether the allegations of fact were contested or not.
- After the learned Magistrate had addressed the appellant, the appellant asked a question (at transcript of decision page 2, lines 26 to 35). In that question, he raised in his defence the reason for the Facebook post, explaining that it was in order to seek information about an address for the respondent so that he could serve an invoice on her. That matter went directly to the question whether one of the allegations of fact was in issue.
- He also made it clear that he was not aware of any application in QCAT referred to by the respondent, which apparently formed the basis of the two year term of the order (the learned Magistrate having appeared to accept the respondent’s submissions about that). The learned Magistrate did not provide to the appellant a copy of the draft order or proposed conditions.
- I accept that the proceeding is likely to have occurred on a very busy morning in a lengthy list. Even taking into account that fact, in my view, the learned Magistrate did not afford procedural fairness to the appellant in the hearing on 15 March 2021.
- It is important to bear in mind that the making of an order under the Peace and Good Behaviour Act 1982 (Qld) is a solemn matter. As was explained by Devereaux SC DCJ (as he then was) in Hughes v Talty & Anor  QDC 145 at paragraph 31:
“Among other things, it places the person subject to the order in jeopardy of breach and punitive consequences. Section 10 of the Act provides that a person who fails to comply with the order is, for each contravention or failure, guilty of an offence carrying 100 penalty units or imprisonment for one year. The terms of the order are broad and arguably vague, requiring the person to “keep the peace and be of good behaviour…”
towards the complainant.
- Here, the term of the order is lengthy: two years. It is a very serious matter to be making an order putting a person for two years in jeopardy of imprisonment for breach of such an order. A Magistrate has an obligation to ensure that a self-represented litigant understands the nature of the order proposed to be made and the consequences of it, and obtains the party’s actual consent to it before purporting to make an order by consent, and without making any findings about the allegations of fact.
- In addition, the Magistrate has an obligation to determine whether these serious allegations of fact had been made out, or at least accepted by the appellant on the basis of informed consent. Those things did not occur in this case. They rendered the proceeding procedurally unfair.
- For this reason, as well as for the other reasons I have identified, the order cannot stand, and will be set aside.
- In conclusion, for the reasons I have identified, the orders of the learned Magistrate must be set aside, and the matter remitted to the Magistrates Court at Mareeba for rehearing according to law. That is, if the respondent wishes to persist with her complaint and summons.
- By way of an aside, I note that two of the allegations the subject of the complaint occurred more than one year ago now, and that the most recent allegation occurred in February 2021. On the basis of submissions heard today, I understand there has been no contact between the parties since some time in 2020. The long period between those allegations (even if they were made out) and the current date, may well be a matter highly relevant to the exercise of the discretion to make any orders. That is, of course, even assuming the court could be satisfied on the balance of probabilities of the matters in section 5(1)(c). I express no concluded view about that issue. If the respondent intends to persist with the complaint and summons, that will be a matter for a contested hearing at which both parties will be able to adduce sworn evidence.
- There is nothing in the material before me to suggest that the matter could not be heard by the original Magistrate, although it is not necessary that that Magistrate hear this matter. For completeness, I also note that the basis for the two year term of the order no longer applies because, on the submissions made in this Court, whatever application the respondent made to QCAT has since been dismissed, and there are no such proceedings on foot.
- The orders I make, then, are these:
- Grant leave to adduce new evidence;
- Allow the appeal;
- Set aside the Peace and Good Behaviour order made on 15 March 2021 by the Magistrates Court at Mareeba;
- Remit the matter for rehearing by the Magistrates Court at Mareeba according to law.
- Published Case Name:
McQuinn v Dwyer
- Shortened Case Name:
McQuinn v Dwyer
 QDC 252
30 Jul 2021