XNR v AMF[2022] QDC 197

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant applied in the Magistrates Court at Brisbane for a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”). The application named the appellant as the aggrieved and the respondent to this appeal as the respondent to the application.
2. [2]
   At a directions hearing on 2 December 2021, at which both parties were represented by solicitors, an order was made for an interpreter for the appellant at the hearing of the application and a direction was made regarding arrangements for witness evidence by Pexip. The hearing of the application was listed for 9.00 am on 14 December 2021.
3. [3]
   At or about 9.12 am on 14 December 2021, counsel for the respondent announced his appearance before the presiding Acting Magistrate. The following exchange then occurred:

 HIS HONOUR:  No appearance of the aggrieved?

MR GORDON:  No, there’s not. Your Honour will note from the file that this matter has been listed for some time. There was a compliance check on 2 December. At that stage the aggrieved was proceeding with his application. He has been in touch with my instructing solicitors on the 9^th of December by sending them an email. He was well aware of this date.

4. [4]
   Counsel for the respondent immediately continued with submissions which included that the application was “improperly brought and ought to be dismissed”, was “very poorly particularised” and that:

… ultimately the case would have been opposed on two bases. Firstly, that there was no act of domestic violence and, secondly, it was not necessary and desirable for an order to be made, even if the court was of the view there was an act of domestic violence, which was denied. So in all of those circumstances, and particularly given that he’s not here and he was well aware of the time and date for this matter, my submission is the court ought dismiss his application.

5. [5]
   Immediately following those submissions, at or about 9.17 am, the Acting Magistrate delivered judgment in succinct terms:

Yes, no appearance for the aggrieved. I hear submissions from Mr Gordon for the respondent, and the application is dismissed.

6. [6]
   Counsel for the respondent then made an application for costs pursuant to section 157 of the Act, on an indemnity basis in the sum of $24,766.50. Counsel for the respondent made submissions as to why an award of costs, on the indemnity basis, should be made. Given the parties’ submissions on appeal, I need not outline those submissions.
7. [7]
   After stating his reasons briefly, his Honour then made an order “that the aggrieved pay the respondent the amount of $24,766.50 in costs in relation to the matter.” Similarly, I need not outline those reasons.
8. [8]
   It appears that the matter, including costs, was heard and determined over a period of about 15 minutes. That it had concluded prior to 9.30 am is apparent from a handwritten note made by the Acting Magistrate on the court file following his handwritten notation of the orders:

Aggrieved and Solicitor arrived at about 9.30 am. The Respondent & Counsel had long gone by the time they had arrived.

9. [9]
   The appellant filed a Notice of Appeal against the Acting Magistrate’s orders that the application for a protection order be dismissed and the appellant pay costs. The ground of appeal was stated as “Procedural Fairness” and included the following assertions:

The decision was made without giving an opportunity to the Appellant to present his case. The appellant was not present at the time of decision due to the confusion of hearing time, as the matter was initially listed for hearing at 9:30am on 14 Day of December 2021 in the original direction hearing of 09 September 2021. On the day of review mention on 07 December 2021, the hearing time was announced as 09:00am, which was overheard and no formal order received as to the change to the Directions of 09 September 2021. The Appellant was present with his witnesses and lawyer in the court at 9:13am but the Magistrate dismissed his application at 9:08am on 14 December 2021. Another confusion was that the Appellant notified at the attendance counter about his presence, and he was advised by the staff at the counter to wait for their name to be announced on speaker, which did not happen. Other party, the Respondent, went straight to the court room and Magistrate dismissed the Application for the aggrieved.

10. [10]
    In the Notice of Appeal, the appellant sought orders including that the decision, including the costs order, be set aside and the matter be remitted to the Magistrates Court for rehearing.
11. [11]
    The appellant subsequently filed an outline of argument contending a denial of procedural fairness and further asserting as follows:

3. 3 - The Appellant in this matter filed an application for a Protection Order on June 11, 2021, under s32 of Domestic and Family Violence Protection Act 2012 (the ‘Act’), at Brisbane Magistrate Court.

3. 4 - The Matter proceeded for the trial and direction were issued on 02 September 2021.

3. 5 - According to the directions issued on 02 September 2021, the matter was listed for hearing at 9:30am on 14 December 2021, and review mention at 9am on 07 December 2021. Copy of the directions is attached as Exhibit ‘A’.

3. 6 - On the day of review mention on 2^nd December 2021 (which was changed by Court through email from 7^th December 2021 to 2^nd December 2021) the hearing time was announced as 09:00am, which was overheard by the Appellant, but neither the direction of 02 September 2021 was formally varied nor any new direction was issued in written form indicating the change in hearing time from 09:30am to 09:00am for the hearing on 14 December 2021.

3. 7 - The Appellant did not receive any notice of change of the hearing time from the Court

3. 8 - The Appellant relied on written direction of 02 September 2021, where the hearing time was at 9:30am on 14 December 2021, and attended the Court at 9:11am on 14 December 2021 along with his witnesses.

3. 9 - The Appellant on 14 December 2021, at about 9:17am, attended the counter at level 6, gave his attended to the staff, and was told by the front desk staff to wait for the announcement. The appellant started waiting in the waiting area outside the Court room along with his witnesses.

3. 10 - At about 9:20am the Appellant solicitor went inside the Court and was informed by the staff that the matter has already been heard and dismissed while ago in your absence and an order of cost has been issued against your client.

3. 11 - The Appellant solicitor with the Court staff showing them the notice of direction hearing where the written time was 9:30am.  The Solicitor was advised by the Court staff to wait outside.  After sometime the Court staff approached the solicitor telling him that during the mention hearing time was changed to 9am and now His Honour is not going to rehear it making his orders as final. 

…

3. 18 - The Appellant did not receive any notice of the change in hearing time or the listing of the matter for the hearing at 9:00am on 14 December 2021 instead of the time stated in direction hearing which was 09:30am on 14 December 2021. Neither any written order was provided not any notice was received about this change in post to the Appellant.

…

3. 22 - The Appellant was present with all his witnesses in the Court and submits that not giving him the opportunity to present his case, and in fact, deciding against him without him being heard gives rise to the issue of procedural fairness and considering the overall circumstances of the case, it is submitted that the matter should remitted to the Magistrate Court setting aside the order 14 December 2022 

12. [12]
    The appellant has since abandoned his appeal against the order dismissing the application for a protection order and his reliance upon the ground of denial of procedural fairness. In joint written submissions on behalf of the parties signed by the solicitor for the appellant and the solicitor for the respondent^[1], the parties indicate they are in agreement regarding the proper disposition of the appeal and seek orders as follows:

1. a)
   That part of the Appeal concerning the order for costs made by ActingMagistrate Wilkinson dated 14 December 2021 in the sum of $24,766.50 be allowed;

1. b)
   The order for costs be set aside;

1. c)
   The Appeal against the order of dismissal of the original application be dismissed;

1. d)
   There be no order as to costs in the Appeal.

13. [13]
    In the joint submissions, the appellant disavows reliance upon the ground of denial of procedural fairness. Both parties submit it is not necessary for the court to make factual findings as to how and why the appellant and his solicitor were absent from the hearing below, given the parties agreement as to the orders that should be made on appeal and that there other viable grounds as to why the Acting Magistrate’s costs order must be set aside as wrong in law. The parties submit as follows.
14. [14]
    Section 38 of the Act provides:

38    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
      1. (b)
         adjourn the application, whether or not it makes a temporary  protection order under division 2; or
         1. (c)
            subject to subsection (3), dismiss the application without deciding it
3. (3)
   The court may dismiss an application without deciding it only if—

   1. (a)
      the applicant has not appeared; and

   1. (b)
      if the applicant is a police officer—no other police officer or service legal officer has requested an adjournment; and

   1. (c)
      no other person eligible to apply for the protection order has appeared.
4. (4)
   The dismissal of an application does not affect the right of the applicant to make a further application against the respondent.

15. [15]
    The parties submit that the Acting Magistrate did not “hear and decide the application” pursuant to section 38(2)(a) of the Act but, rather, dismissed the application without deciding it pursuant to section 38(3) of the Act.

16. [16]
    Section 164 of the Act provides:

164    Who may appeal

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

1. (a)
   a decision to make a domestic violence order;
2. (b)
   a decision to vary, or refuse to vary, a domestic violence order;
3. (c)
      a decision to refuse to make a protection order;

(d) if the person sought a temporary protection order in a proceeding under this Act—a decision to refuse to make the order.

17. [17]
    The parties submit that section 164(c) of the Act does not apply. No decision to refuse to make a protection order was made by the Acting Magistrate. The application was dismissed “without deciding it”. Accordingly, the Act does not provide the appellant with an avenue of appeal against the decision to dismiss the application for a protection order. The appellant’s right to make a further application is preserved by section 38(4) of the Act.
18. [18]
    The parties jointly submit that the part of the appeal challenging the order of dismissal be dismissed.
19. [19]
    I agree with the submissions of the parties as to the effect of sections 38 and 164 of the Act as they apply to the Acting Magistrate’s order dismissing the appellant’s application for a protection order. That order of the Acting Magistrate will be confirmed.
20. [20]
    As to the costs order, the parties submit as follows.
21. [21]
    Section 157 of the Act provides:

157     Costs

1. (1)
   Each party to a proceeding for an application under this Act must bear the party’s own costs for the proceeding.
2. (2)
   However, the court may award costs against a party who makes an application that the court hears and decides to dismiss on the grounds that the application is malicious, deliberately false, frivolous or vexatious.
3. (3)
   In this section— party includes an aggrieved.

22. [22]
    The parties cite the reasons for decision of Judge Long SC in NBE v PRT & Anor [2018] QDC 29, particularly as follows:

22. [36] What must be kept in mind here is that what the respondent pressed the Magistrate to do, despite his initial reluctance to do so, was to not just dismiss the application in the absence of the appearance of the applicant, but to do so on a basis that would engage s 157(2) of the DFVPA and thereby enable the recovery of costs, as an exception to the usual position established by s 157(1). 
23. [37] Accordingly, it was not just a matter of showing that the application was misconceived or lacked legal foundation or that the respondent denied the basis of the application or even that there may be aspects of overreach or exaggeration in the applicant’s expressed concerns… And what appears as lacking here, is any clear and objective indication of this being, at least, a frivolous application.

…

22. [46] … from what has been set out above, it is clear that the respondent sought to take advantage of the absence of the applicant, so that he could seek orders allowing his costs, on an ex-parte basis and in circumstances where his entitlement to do so was not appropriately and clearly established. For the reasons that have been given, there was an evident lack of proper foundation for the engagement of s 157(2) and therefore, and in circumstances where matters may have otherwise moved on and the applicant does not seek a further hearing to pursue further her application for a protection order, the more appropriate order pursuant to s 169(1)(b), is to allow the appeal and to vary the decision of the Magistrate made on 5 April 2016, so as to delete the order that the aggrieved pay the respondent’s costs.

(footnotes omitted)

23. [23]
    The parties submit that this case is different to NBE v PRT & Anor, in that the respondent did seek to take advantage of the appellant’s absence in advancing the application for costs. However, they submit, it is similar in that, in the absence of a contradictor, there was a lack of clear objective evidence of satisfaction of the criteria in section 157(2) of the Act enlivening the discretion to order costs. Both parties submit that, in the circumstances, the costs order should be set aside.
24. [24]
    I agree. I respectfully adopt the following further comments of Judge Long SC in NBE v PRT & Anor:

[32]  … a cautious approach should be taken to any determination that the power provided in s 157(2) should be applied and particularly, where such determination is sought in the absence of the party against whom the order is sought and when there is no contradictor. A party seeking the exercise of such power should expect to have to justify the conclusion as a clear one and from an objective point of view, rather than as a subjective and potentially contentious point of view.

25. [25]
    The appeal is allowed to the extent of setting aside the order that the appellant pay the respondent the amount of $24,766.50 in costs.
26. [26]
    Although I have not had to determine whether the appellant was denied procedural fairness, some further comment is warranted. The appellant had prosecuted his application in the Magistrates Court with due diligence prior to 14 December 2021, including by his appearance by solicitor at a directions hearing on 2 December 2021. His arrival at the Magistrates Court on 14 December 2021 was at most, but probably less than, 30 minutes late. A whole court day had been set aside for hearing and an interpreter arranged. There appears to be no reason why the Acting Magistrate could not have stood the matter down for a short time so as to allow some further time for the appellant’s belated appearance. The precipitate action of the Acting Magistrate in disposing of the matter in the absence of the appellant did not advance the efficient administration of justice. Haste makes waste.