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BUI v SNL QDC 285
DISTRICT COURT OF QUEENSLAND
BUI v SNL & Anor  QDC 285
12 of 2021 (Beenleigh)
Magistrates Court, Beenleigh
19 November 2021
Beenleigh District Court
8 November 2021
Byrne QC DCJ
DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where the appellant appeals against the making of a Protection Order (PO) on 22 June 2020 pursuant to section 37 of the Domestic and Family Violence Protection Act 2012 (DFVP Act) – where the PO was made for a period of five years and included an ouster condition – where a temporary protection order (TPO) was made prior to the making of the PO – where the appellant and second respondent (the aggrieved) each applied to vary the TPO by removal of the ouster condition and removal of the naming of the children – where the second respondent’s application included a sworn document that the complained of conduct did not occur – where neither application had been determined when the PO was made – whether the Magistrate’s decision to hear the matter in the appellant’s absence denied him procedural fairness – whether the Magistrate erred in making a final order against the appellant – whether the Magistrate erred in not adjourning the application – whether the Magistrate’s failure to have regard to the variation applications constitutes a material error justifying appellate interference
DOMESTIC AND FAMILY VIOLENCE – APPEAL – LEAVE TO ADDUCE FURTHER EVIDENCE – where the appellant seeks leave to adduce further evidence than that which was before the Magistrate pursuant to section 168(2) of the DFVP Act – whether there is good reason for there to be an exception made to the rule under section 168(1) of the DVFP Act – whether the further evidence meaningfully contributes to the granting of the appeal
DOMESTIC AND FAMILY VIOLENCE – APPLICATION – EXTENSION OF TIME – where the appellant seeks leave for an extension of time within which to appeal – whether the matter has prospects of success in circumstances where the substantive appeal is also before the Court
DOMESTIC AND FAMILY VIOLENCE – APPEAL – UTILITY OF DETERMINING APPEAL – where an amendment to the PO was granted on 17 December 2020 amending the ouster condition and resulting in the issuing of a TPO – where a variation application to the PO remains on foot – where if the variation application is unsuccessful the PO will be automatically re – engaged – where if the appeal is granted and the matter is remitted back to the Magistrates Court for re-hearing, the TPO in place at the time the PO was made will again be of force including the original ouster condition – whether the Court deems it appropriate to exercise its power pursuant to section 160(1)(c) DFVP Act to set aside the decision and substitute another decision
DOMESTIC AND FAMILY VIOLENCE – COSTS – STANDARD BASIS – whether costs should be awarded to the appellant on the standard basis
Domestic and Family Violence Protection Act 2012 (Qld)
Allesch v Maunz (2000) 203 CLR 172
Camden v McKenzie  1 Qd R 39
Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194
Fox v Percy (2003) 214 CLR 118
HBY v WBI & Anor  QDC 81
House v The King (1936) 55 CLR 499
Jennifer Glover, Separate Representative v Director, Child Protection Litigation and Ors  QChc 16
John Urquhart t/as Hart Renovations v Partington and Anor  QCA 199
Latoudis v Casey (1990) 170 CLR 534
McDonald v Queensland Police Service  2 Qd R 612
MNT V MEE (No. 2)  QDC 100
Oshlack v Richmond River Council (1998) 193 CLR 72
R v Tait  2 Qd R 667
Ratten v The Queen (1974) 131 CLR 510
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679
Mr I. Munsie for the appellant.
Ms. Thirumoorthi (sol) for the first respondent.
The second respondent appeared in person.
Russo Lawyers for the appellant.
Solicitor to the Queensland Police Service for the first respondent.
The second respondent appeared in person.
- The appellant appeals against the making of a Protection Order (“PO”) under section 37 of the Domestic and Family Violence Protection Act 2012 (DFVP Act) in the Beenleigh Magistrates Court on 22 June 2020.
- The order was made for a period of five years and included a condition that the respondent was prohibited from entering, attempting to enter or approaching within 100 metres of where the aggrieved lives (“the ouster condition”). Two of the appellant’s children are named persons under the order.
- The appellant also applies for an extension of time within which to appeal,  given that the Notice of Appeal was not filed until 28 May 2021.
Grounds of appeal
- The Notice of Appeal promotes two grounds, namely that:
- the Magistrate’s decision to hear the matter in the absence of the appellant denied him procedural fairness; and
- the exercise of the discretion under s 39(2) of the DFVP Act miscarried because the Magistrate:
- (a)erred in making a final order against the appellant pursuant to s 39(2)(a) of the Act; and
- (b)erred in not adjourning the application pursuant to s 39(2)(b) of the Act.
- The appellant seeks orders that the appeal be allowed and the matter remitted for hearing according to law. He also seeks the costs of the appeal.
Nature of the appeal
- The appeal is to be decided on the evidence and proceedings before the Court below, unless the appellate court makes an order to the contrary. As earlier noted, the appellant seeks leave to adduce further evidence than that which was before the Magistrate pursuant to s 168(2) of the DFVP Act. The circumstances in which s 168(2) applies are not prescribed in the DFVP Act. However, for the reasons stated in HBY v WBI & Anor I accept 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). A determination as to whether there are good reasons is informed by the common law principles that apply in appeals, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen.
- As will be seen, the basis upon which this appeal is conducted is meaningless in the absence of further evidence. On that basis I have received the evidence to ascertain the prospects of the appeal, but the application should be allowed only if that further evidence meaningfully contributes to the granting of the appeal.
- The receipt of this material, an affidavit of the appellant, does not mean that I have accepted everything said therein. Specifically, where there is a difference between the affidavit and the Magistrates Court file, I have preferred the latter. I have also taken into account the fact that the affidavit has not been accepted in all respects in deciding if other aspects of it should be accepted.
- The admission of this evidence does not convert the hearing into a de novo hearing;  it remains a rehearing in the sense that this court rehears the matter, as at the date of the appeal, not in the sense of a completely fresh hearing, but on the basis of the record of the evidence before the court below, subject to the discretion conferred by s 168(2). This court is obliged to give the judgment which in its opinion ought to have been given at first instance, observing the natural limitations that exist in the case of any appellate court proceeding wholly or substantially on the record. Within those constraints, this Court is required to conduct a real review of the evidence and proceedings below, and the reasons below, and make its own determination of relevant facts in issue from the evidence, including any inference to be drawn, giving due respect and weight to the Magistrate’s conclusions.
- The powers of the appellate court are, however, exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error. As the making of the PO involves the exercise of a discretion, error of the kind explained in House v The King needs to be demonstrated before the appeal can succeed. The last category referred to therein has sometimes been expressed as requiring satisfaction that no reasonable decision maker could have made the decision under appeal.
- In the event that error is demonstrated, I must consider the whole of the evidence to determine whether the orders made are nonetheless justified. If not, I must make such orders as I see fit.
- The powers of this Court in an appeal under the DFVP Act are found in section 169 of the DFVP Act. Under section 169(2), the decision of this Court is final and conclusive. The appellant also seeks to adduce further evidence for the purposes of the appeal.
- In this judgment I will refer to the parties by their respective titles in the present appeal, so as to save confusion with the fact that the appellant in this appeal was the respondent below, and the second respondent to the appeal was the aggrieved below.
- On 6 December 2019 a Police Protection Notice was issued by the first respondent naming the appellant as the respondent and his partner as the aggrieved. Consequently, on 9 December 2019 a temporary protection order (“TPO”) was made, including the ouster order, and the matter was adjourned on a number of occasions, eventually to 22 June 2020. The appellant was present in Court when the matter was adjourned to that date. Further, the Magistrates Court file shows that a notice of the adjourned hearing date was posted to his address, stating that the hearing date was 22 June 2020.
- Both the appellant and second respondent had filed applications on 18 February 2020 for variation of the TPO. The two applications largely mirrored each other. The variation sought in each application involved the ouster order and the naming of the children. The second respondent’s application attached a handwritten affidavit which in effect denied that the complained of conduct in fact occurred. Each application specifically sought a variation of the ouster order as well as the removal of the naming of the children. Neither of these applications had been determined by the time the matter was heard on 22 June 2020.
- The appellant’s present recollection is that he engaged a solicitor from a particular law firm and told her that the next court date was sometime in June or July. He has attested that the solicitor told him that she would follow it up, and that he paid professional fees after that conference. He further attests he was under the impression that the solicitor would appear on his behalf and contact him if anything further was required.
- There is an email attached to the appellant’s affidavit which shows that the solicitor had understood that the adjourned hearing date was 6 July 2020, and that the appellant had told her that. I accept that he told the solicitor this date. While it is not clear to me why he would have stated that date, it is unlikely that the solicitor would have diarised a date she had not been told. Further, it is highly unlikely that if the solicitor had contacted the Court she would have been told that date. I accept that the appellant had not informed the solicitor of the correct hearing date.
- On 22 June 2020 the application was mentioned in the Magistrates Court at Beenleigh. There was no appearance on the appellant’s behalf.
- The transcript of the hearing reflects a particularly short discourse between the presiding Magistrate and the police prosecutor. In effect, the Magistrate mentioned the name of the aggrieved and then stated “Well, that can be finalised. Five years … Are you happy to have that finalised in the current … temporary orders?” When the prosecutor was apparently having difficulty locating the file his Honour observed, “This was strangulation. This is the guy who’s saying that the previous girlfriend’s better than she is or something or other.”. He also observed that the appellant had “a lengthy DV history, anyway.” The transcript of the reasons for the order comprise two words, namely “five years”. There is nothing in the transcript, nor on the Magistrates Court file, to suggest that any consideration was given to the two written applications for variation which were still on foot.
- On 7 August 2020 the appellant filed a further application for a variation of the PO. It was listed for hearing on 1 September 2020.
- The notation by the presiding magistrate indicates that this was an application “to wind down” the PO. No variation was made on 1 September 2020. It seems that it was on this date that the Magistrate was informed that the appellant’s child had been hospitalised “for some time”. In fact the child was hospitalised on 25 April 2020 and remained there until 2 July 2020.
- The appellant has sworn that he decided to engage another solicitor after this mention. He attests that he was advised that the order can be varied but that he did not at any stage receive advice that he could appeal the granting of the PO.
- This newest solicitor appeared on the appellant’s behalf on 17 December 2020. On that date, as a result of the variation application, a TPO was issued in terms which amended the previously existing ouster order by permitting the appellant to attend the place of residence of the second respondent if she agreed in writing. Further, the physical copy of the TPO bore the following endorsement:
“The domestic violence order made on 22/06/2020 is suspended and this order commences immediately if the respondent was present in court when the order was made or otherwise when the respondent is told by a police officer about the existence of this order. This order ceases upon the withdrawal or refusal of the application for a variation of the domestic violence order or further order.”
- The suspension of the PO and the making of the TPO was authorised by s 48 of the DFVP Act. Notably ss 148(5) and (8) are in terms which confirm that the PO had been suspended, and hence was in existence although not operative, rather than revoked. This Order recognised the existence of at least the last variation application, but did not finally determine it.
- The appellant has sworn that he did not hear from his solicitor again after that date. He later engaged his current solicitor, which eventually resulted in the filing of the Notice of Appeal.
- It is clear from the Magistrates Court file that the matter was mentioned on 24 June 2021, although it is unclear what orders were made on that date, from the file. I am informed from the Bar Table that the Magistrate declined to consider the matter as this appeal was pending. I am also informed that the variation application is next listed for hearing on 9 December 2021.
Application for extension of time
- The principles to be applied in consideration of an application to extend time within which to appeal are well known. There is a two-pronged test to be satisfied, namely:
- (a)whether good reason is established for the delay in the application, and
- (b)whether it is in the interests of justice to grant the extension.
- There is some doubt that the passage of time has been adequately explained. The first respondent concedes that there was good reason why the appellant did not attend court on the day of the hearing. It was not a belief that his solicitor would attend on that date, but rather that his child was seriously ill and was by that stage already hospitalised for about two months. However, it seems that he would not have attended anyway given that he did not himself know the correct hearing date.
- Favourably to the appellant, upon service of the PO he immediately contacted his solicitor and was assured that steps would be taken to “re-open” the order. He complains of a lack of full advice on the part of that, and another solicitor, resulting in only belatedly receiving advice that the Order could be appealed.
- I have doubts as to the completeness of that account. It does not fully explain a delay of about seven months before he finally filed an appeal. Even then, based on dates provided from the Bar Table, it was about 35 days after receiving the advice concerning the power to appeal that the notice of appeal was lodged, although that is said to be due to the need to raise about $1300 for the filing fee.
- Nonetheless his account is not implausible. In the circumstances, and particularly where this order is in force for a number of years to come, the better approach is to determine whether the matter has prospects of success, which will be conclusively determined given that the substantive appeal is also before me, in determining the application for extension of time.
The parties’ submissions
- The appellant in essence argues that he was denied procedural fairness by the hearing having been conducted in his absence in circumstances where he could not attend due to the illness of his child and where he reasonably expected that his solicitor would appear on his behalf. Further, it is noted that the appellant had indicated to the Court in January 2020 that he denied the allegations and would contest the making of any Order. It is said that it was an error for the Magistrate to have conducted the hearing in his absence, given those circumstances.
- The first respondent in essence argues that there has not been good reason shown for the delay in filing the appeal, and so the application for extension of time should be refused and the appeal dismissed. If the application is allowed, it was submitted that there was no error by the Magistrate. He dealt with the matter ex parte, as he was entitled to do and was not necessarily put on notice by the statements of the appellant some five months earlier. However, it was conceded that the reasons for the ruling were inadequate, which amounts to an error of law, and on that basis the appeal should be allowed if the time is extended.
- The second respondent made no submissions other than to state that she supported the appeal.
The grounds of appeal.
- Of the two grounds of appeal, it is convenient to deal with the second first. That ground alleges that the exercise of the discretion under s 39(2) of the DFVP Act miscarried because of two particularised errors. In truth neither were errors. There can be no error in making the final order where the then respondent was not present, as that course is authorised by s 39 of the DFVP Act. It cannot be an error to exercise a discretion when there was no submission to the contrary, particularly in circumstances of a busy jurisdiction where the non-appearance of respondents is a regular feature. Secondly, there can be no error in not adjourning the hearing when there had been no application to adjourn before the Magistrate, and where the circumstances did not necessarily demand that consideration be expressly given to that. In each instance, there is no fault in the conduct of the Magistrate in those respects, and hence no error.
- Turning then to the first ground of appeal, I am not satisfied that the appellant has been denied natural justice, or procedural fairness, in the manner by which the hearing was conducted. There was express legislative authorisation to conduct the matter in his absence. The Magistrates Court file reveals that he had been given notice of every hearing date, even though he may not have communicated them clearly to his solicitor. Having been so notified, the onus was on him to ensure that he, or his legal representative, was present at the hearing. There can be no legitimate complaint of being denied procedural fairness.
- The first respondent submits that the reasons given for ordering the PO are inadequate. I am loath to criticise a Magistrate who, while presiding in an exceptionally busy jurisdiction, is confronted with the need to give reasons in an uncontested matter and who elects to use an economy of expression. However, the reasons here given amount to two words, when divorced from the almost equally sparse discussion in the course of submissions on the matter. It is clearly arguable here that the reasons given are inadequate, however it is unnecessary to consider whether that amounts to an error of law in the present circumstances because of a related issue.
- There were, at the time that the PO was ordered, two applications for variation on foot, one from each of the then aggrieved and respondent. One of those applications, from the aggrieved, included a sworn document attesting to the fact that there had been no wrongful conduct on the part of the respondent. That is obviously material to two of the considerations under section 37(1) of the DFVP Act. There is nothing to suggest that it was considered in the exercise of the discretion to make the PO. It need not have necessarily been accepted at face value, but it needed to be considered. The failure to have regard to relevant material is an error justifying appellate interference. While this is not a ground of appeal pursued by the appellant, it was a matter tangentially raised in the written outline of submissions.
The utility in determining the appeal
- In the course of oral submissions, an issue was raised as to the propriety of determining an appeal for an order which is no longer active, given the orders made on 17 December 2020, and given that the latest variation application remained pending. I have concluded that there is utility in determining the appeal, and that it is proper to do so.
- Because a TPO was made on 17 December 2020, the operation of s 48 of the DFVP Act means that the PO which is the subject of the appeal is suspended. That is not to say that it no longer exists. The provisions of the Act make it clear that it is automatically re-engaged if the variation application fails for some reason or there is some other order. Accordingly, there remains a PO on foot (albeit not actively on foot) which is the subject of the appeal. If the variation application was unsuccessful for some reason, the PO would automatically be of force, including the ouster order in its original form. I accept that the Order remains of force and that the appellant has a legitimate interest in the determination of the appeal.
- In the course of submissions on this topic, the appellant and the first respondent both contended that the variation applications were inappropriate because what was really being sought was the removal of the PO, not its variation. Given my conclusions, I need not determine this point, but it is worth making a few brief observations. I do accept that ordinarily a variation application would be based on events that have occurred since the making of the order, and an appeal would be required to challenge findings of fact or to complain of some miscarriage of justice. Nonetheless, in the absence of an express power in the legislation to re-open proceedings, the use of variation applications may be a pragmatic and cost-effective method of achieving the same, or close to the same, end result. Whether it is an appropriate pathway will depend on the particular circumstances that present themselves.
The proper form of orders
- As I have concluded that this appeal should be granted and the PO should be set aside, orders made subsequent to the appealed order will be rendered nugatory. Further, the TPO in place at the time the PO was made will again be of force, including the ouster order in its original form. This is undesirable given the amended ouster order has been in place for about 11 months, apparently without incident.
- The powers of this Court on appeal are prescribed by s 169 of the DFVP Act. Ordinarily where there are to be competing submissions and the real possibility of evidence being called, the appropriate course would be to set aside the order and remit the matter back for rehearing. However I am also empowered to “set aside the decision and substitute another decision”. I intend to utilise that power to amend the then existing TPO so as to reflect the amended ouster order. As I understand the mechanics of the DFVP Act, that TPO will then proceed to a hearing for a final PO. The two extant variation applications can be subsumed by that process.
- For those reasons I consider it appropriate to determine the appeal notwithstanding the now pending variation application.
- As the appellant’s affidavit did not assist in the resolution of the appeal, leave should be refused.
- The appellant seeks an order for costs, on the standard basis. Any such order would necessarily be made against the first respondent. The first respondent resists the application on the basis that it has acted scrupulously in the conduct of the appeal.
- It should be noted that the conduct of this appeal was greatly assisted by the cooperative attitude of the first respondent. The appellant did not file an outline of argument or his affidavit until the day of the hearing. The first respondent took no point about that and assisted with oral submissions that were necessarily crafted “on the run”.
- Although costs cannot be awarded at first instance under the DFVP Act, they are available on appeal. The appeal was conducted under the UCPRs, and the power to order costs is derived from r 766 of the UCPR. Although r 681 of the UCPR does not directly apply, it is applicable because of its general application separately from the UCPR.
- Further, costs are awarded as a partial indemnity to a successful party, not as a punishment to an unsuccessful party. The conduct of the unsuccessful party may be relevant to an issue of whether they should be awarded on an indemnity basis, but that is not the issue here.
- The real issue is whether there has been any conduct of the appellant of such a nature as to disqualify him from a favourable costs order notwithstanding the usual position of costs following the event.
- The provision of the wrong hearing date to his then solicitors, which was the fundamental reason why there was no appearance on 22 June 2020, counts against a favourable costs order. However, the reason why this appeal was allowed is not his non-appearance but the Magistrate’s failure to consider all relevant material in determining the application. As earlier noted, his tardiness in filing this appeal is not fully satisfactorily explained, but there is some explanation for the delay. I do not attribute the later filing of the appeal material to the appellant, but rather to his legal representatives. On balance, the order should be made in the appellant’s favour.
My orders in this matter are as follows:
- Application for extension of time within which to appeal granted.
- Application for leave to adduce further evidence is refused.
- Appeal allowed.
- The order of the Beenleigh Magistrates Court in issuing a Protection Order on 22 June 2020 is set aside.
- I order that the Temporary Protection Order granted 9 December 2019 in the Beenleigh Magistrates Court be amended, but only in so far as the second condition is now to be in the same terms as the second condition in the Temporary Protection Order granted on 17 December 2020 in the same Court.
- The first respondent to pay the appellant’s costs.
 Section 168(5) of the DFVP Act.
 Section 164(a) of the DFVP Act.
 Section 23(2) of the DFVP Act.
 Section 168 of the DFVP Act.
  QDC 81, .
 (1974) 131 CLR 510, 519.
 HBY v WBI & Anor, ibid citing Jennifer Glover, Separate Representative v Director, Child Protection Litigation and Ors  QChc 16, .
 Fox v Percy (2003) 214 CLR 118 at  – ; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at , ; McDonald v Queensland Police Service  2 Qd R 612 at .
 Allesch v Maunz (2000) 203 CLR 172 at ; Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194, ; McDonald v Queensland Police Service, ibid.
 (1936) 55 CLR 499, 505.
 Section 168(2) of the DFVP Act.
 Affidavit of the appellant dated 8 November 2021 at  – .
 Affidavit of appellant dated 8 November 2021, Exhibit DMB – 6.
 Affidavit of Joshua John Reed dated 24 June 2020 and attached to the Magistrates Court file.
 Section 165(4) of the DFVP Act.
 Affidavit of appellant dated 8 November 2021, exhibit DMB – 6.
 It is assumed this is a reference to an application to vary the order made.
 Affidavit of appellant dated 8 November 2021, exhibit DMB – 4
 R v Tait  2 Qd R 667.
 Section 39 of the DFVP Act.
 Camden v McKenzie  1 Qd R 39
 House v The King, supra.
 See paragraph 46 therein.
 Section 169(1)(c) of the DFVP Act.
 MNT V MEE (No. 2)  QDC 100,  – .
 Section 142(2) of the DFVP Act.
 John Urquhart t/as Hart Renovations v Partington and Anor  QCA 199, .
 Oshlack v Richmond River Council (1998) 193 CLR 72, ; Latoudis v Casey (1990) 170 CLR 534.
- Published Case Name:
BUI v SNL & Anor
- Shortened Case Name:
BUI v SNL
 QDC 285
Byrne QC DCJ
19 Nov 2021