KJW v PQV[2022] QDC 200

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant and the first respondent in this appeal are brothers.
2. [2]
   The appellant appeals the making of a protection order under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act) in the Brisbane Magistrates Court on 15 July 2021.
3. [3]
   The protection order was made for a period of five years and included as conditions that the appellant was prohibited from contacting or attempting to contact the first respondent and named relative and prohibited from using the internet or any other communication device to communicate with, publish pictures of or make adverse comments concerning the first respondent and named relative.
4. [4]
   The named relatives are the two sisters and mother of the appellant and first respondent.
5. [5]
   The appellant appeals the making of the protection order on the grounds that the court proceeded and made the order without the appellant having an opportunity to state his case.
6. [6]
   At the hearing of the appeal, the appellant and the first respondent were self‑represented.  The second respondent appeared pursuant to s 167 of the DFVP Act.
7. [7]
   The appellant also applies for an extension of time within which to appeal.  The notice of appeal was filed on 17 February 2022, a period of almost eight months after the making of the order.  The grant of an extension of time is opposed by the first respondent.
8. [8]
   In this judgment, I will refer to the parties by their respective titles in the present appeal, so as to avoid the confusion caused by the fact that the appellant was the respondent below and the first respondent was the aggrieved below.

Nature of appeal

9. [9]
   A person who is aggrieved by a decision to make a domestic violence order may appeal against the decision.^[1]
10. [10]
    The appeal is started by filing a notice of appeal with the registrar of the appellate court.^[2]  The notice of appeal must be filed within 28 days after the day on which the decision is made, or if the decision was made in the absence of the appellant, the day on which a copy of the decision is served on the appellant or the day on which a police officer tells the appellant about the existence of the decision.^[3]  Section 165(5) gives to the appellate court power at any time to extend the period for the filing of the notice of appeal.
11. [11]
    Section 168 of the DFVP Act provides:

“168Hearing procedures

3. (1)
   An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.

3. (2)
   However, the appellate court may order that the appeal be heard afresh, in whole or part.”

12. [12]
    An appeal under s 168(1) is by way of rehearing.^[4]  The power of the appellate court may be exercised only when 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.^[5]
13. [13]
    Section 168(2) reposes a broad discretion in the appellate court to order some or all of the evidence be heard afresh, or for further evidence to be relied on.
14. [14]
    Pursuant to s 169, in deciding the appeal, the court can confirm the decision appealed against, vary it, set it aside and substitute another decision, or set it aside and remit the matter to the Magistrates Court.

Factual background

15. [15]
    The issues between the appellant and the first respondent appear to have intensified at around the time of the appellant’s separation from his wife; though the appellant says he and his brother were never close.  Sadly, the appellant’s separation has been extremely acrimonious.  The extended family has become involved, as have the appellant’s adult sons.
16. [16]
    The appellant appears to believe that his family has sided with his ex-wife and has failed to support him.  His ex-wife has a domestic violence order against the appellant.
17. [17]
    The first respondent filed an application for a protection order on 10 August 2020.  The first respondent filed a statement in support of the application and attached to the statement a print-out listing all emails received by the first respondent from the appellant in an identified period, namely between 8 May 2020 and 30 July 2020, examples of the emails sent by the appellant, an example of an email sent by the first respondent to the appellant, and an email sent from the appellant’s mother to the appellant.  Statements in support of the application were also filed from the first respondent’s sisters, Catherine and Natalie, and his mother, Ann.
18. [18]
    A temporary protection order was made on 10 August 2020. That order continued in force until a further order was made in the presence of the appellant or the appellant was told by a police officer about the existence of a further order or the application for a protection order was withdrawn or dismissed by the court.
19. [19]
    The matter was first mentioned in the Magistrates Court on 7 September 2020.  Prior to that mention, the appellant forwarded a detailed email for the consideration of the Magistrate at the mention.
20. [20]
    Orders were made for the filing of affidavit material.  Additional material was filed by the first respondent in the form of affidavits of himself and his two sisters.  The material was filed and provided to the appellant on 21 September 2020.
21. [21]
    The appellant filed his affidavit sworn 28 October 2020 on 2 November 2020. The affidavit was filed in support of a cross application by the appellant against the first respondent.  In due course, the cross application was discontinued.
22. [22]
    The appellant filed applications for subpoenas directed to his mother, one of his sisters and one of his sons.
23. [23]
    Subsequent to the filing of requests for subpoenas, special witness applications were made under the Evidence Act 1977 (Qld) in relation to the first respondent, his mother and one of his sisters.  An order was made on 9 March 2021 that the appellant was not entitled to cross-examine the first respondent, his mother or his sisters.  The appellant was told to make an application for Legal Aid in order to have an independent lawyer conduct the cross-examinations of the three witnesses on his behalf.
24. [24]
    The domestic violence application was set down for hearing on 30 March 2021.  The making of the application for Legal Aid, however, necessitated the delisting of the trial date.  Upon the delisting of the trial, the matter was listed for a further hearing review on 15 April 2021.  The appellant was granted leave to attend that review by phone.
25. [25]
    Prior to the review hearing on 15 April 2021, the appellant’s application for legal aid was refused.  The notification of the refusal of legal aid is relevant to a handwritten  notation made by the presiding Magistrate on the record of the proceedings that day.  There is no transcript of the review proceedings on the Magistrates Court file.
26. [26]
    The learned Magistrate’s notation records that “Parties to reach agreement re: written questions for aggrieved (to be placed on the file).”
27. [27]
    The further entries on the record of proceedings for that date included that the matter was adjourned to 15 July 2021 at 8.30 am, Court No. 3 for a trial review and the hearing was to be in Court 4 on 22 July 202[1]. The record of proceedings was signed by the presiding Magistrate.
28. [28]
    At the appeal hearing, the appellant stated in his oral submissions that he was told to prepare a list of questions that he wished to have asked of the protected witnesses. The appellant indicated that he understood these questions would be asked by the Magistrate at the hearing of the application.  The appellant said that he did not understand that he was required to provide the list to the first respondent’s lawyer. The appellant said that he had prepared the list and it was on his computer.
29. [29]
    The appellant does not contend that he was not aware of the date of the review of 15 July 2021.  In fact, there is email correspondence between the appellant and the registry of the Magistrates Court requesting leave to attend the review by phone.  Leave was refused and it is clear that the appellant’s physical attendance at court for the review mention that day was required.
30. [30]
    The respondents accept that the matter had been set down for review on 15 July 2021, and not for hearing.  The transcript of proceedings on 15 July 2021 records an appearance by the solicitor for the first respondent.  The Magistrate was told her client was not present as he was at work and was told that she was not sure the appellant was at court.  The solicitor told the Magistrate, “It’s just a review mention, your Honour.  The matter is listed for a trial next Thursday, the 22^nd of July.”

31. [31]
    The solicitor representing the first respondent told the Magistrate that the matter had been before the courts from 10^th August last year when a temporary protection order was put in place and stated, “I have instructions to seek a final order if the [appellant] does not appear today.”  The solicitor said to the Magistrate that she appreciated there was some reading material and that maybe the Magistrate might want to stand it down.
32. [32]
    The matter was stood down to enable the Magistrate to read the material.
33. [33]
    Upon the court resuming some two hours later, the Magistrate said:

“I won’t say I’ve read every word because a lot of it I glossed over… But I get the gist of it.  I’ve read the material.  I mean, someone’s made a temporary order.  So that’s obviously appropriate.  I think that that’s appropriate.  I don’t have any problem with making a protection order here today.”

34. [34]
    When the Magistrate was asked by the solicitor as to whether the order would be extended to the named persons, the Magistrate said that she had read their material.
35. [35]
    The Magistrate then proceeded to make a protection order for five years, naming the first respondent as the aggrieved and the sisters and mother as the named persons on the order.
36. [36]
    In his material filed in support of the appeal, the appellant explains his non-attendance at the mention on 15 July 2021.  In the appeal proceedings, at the request of the legal officer appearing on behalf of the second respondent (the Queensland Police Service) the appellant was sworn and gave evidence and was cross-examined.
37. [37]
    The appellant confirmed, which was not contested, that on 15 July 2021 he was in the Brisbane Watchhouse.  The appellant’s evidence was that he had told police that he had a matter in court on 15 July 2021 at Southport.  The appellant said that he was told, “If you’ve got court, you’ll be videoed in.”
38. [38]
    The appellant said that never occurred and he only knew of the making of the protection order when police served him with a copy of the order.
39. [39]
    In the appeal proceedings, an affidavit was filed by the legal officer appearing on behalf of the second respondent attaching a copy of the QPRIME search in relation to the appellant’s custody.  The search confirmed that the appellant was arrested on 12 July 2021 and taken to the Brisbane Watchhouse and was transferred out of police custody to the Brisbane Correctional Centre on 15 July 2021.
40. [40]
    The appellant said, which was not contested, that he remained in prison for some six weeks.
41. [41]
    The appellant said that upon his release he contacted the registry of Southport DV. The Magistrates Court file confirms the appellant sent an email to the registry on 25 August 2021.  In the email the appellant stated that he wished to make an application for his matter to be reheard “as I wasn’t able to attend as I was in police custody on remand for a separate issue.” The appellant asked for advice as to what steps he needed to take.  The registry responded by email on the same day explaining that they were unable to provide legal advice and strongly suggested that the appellant obtain independent legal advice. That same day, the appellant asked if there was a form he could fill out.  The registry responded the next day providing a link to the court forms.
42. [42]
    On or about 2 September 2021, the appellant filed an application to vary the order in the Brisbane registry.  A copy of that application is not on the court file.  The appellant says that he understood that was the way to have the matter reheard.
43. [43]
    It is also unclear from the Magistrates Court file as to what had happened to that application.  In his outline of argument, the appellant refers to having been told on 2 December 2021 in the Brisbane Magistrates Court that he needed to appeal the decision. The appellant says he was told to appeal the decision “on the grounds of procedural fairness as the decision was made without [my] appearance due to error outside my control.”
44. [44]
    On 9 December 2021, the appellant filed a Client Complaint form.  The appellant provided the same details on that form, namely:

“That the Court proceeded without me being present or video linked in.  I had spent money fighting this for over a year.  I told police in Bris Watchhouse and they said if you have court you will be video linked into it and I wasn’t and only knew it proceeded when police served me a copy of DVO.”

45. [45]
    In completing the section of the form, ‘What would you like us to do?’, the appellant stated, “I want it to be reheard and I’m given the opportunity to explain why I find it completely unacceptable that they put a DVO on me based on one side of a story.”

46. [46]
    The Chief Magistrate responded to the complaint by letter sent by email on 15 February 2022.  As a result of that letter, the appellant seems to have understood that he must file a notice of appeal with the District Court.  The notice of appeal was filed two days later on 17 February 2022.

Application for extension of time

47. [47]
    The principles to be applied in considering an application to extend time are well settled.  A two-pronged test must be satisfied, namely:

3. (1)
   whether good reason is established for the delay in the application; and

3. (2)
   whether it is in the interests to grant an extension.^[6]

48. [48]
    There has been a significant delay between the making of the protection order and the filing of the notice of appeal.  The relevant period of delay is the period between the order having been brought to the attention of the appellant and the filing of a notice of appeal.  That delay is in excess of a six-month period.
49. [49]
    The appellant is self-represented.  While the delay is not fully explained by the appellant, it is clear from statements made by the appellant and a review of the Magistrates Court file that the appellant was struggling as a self-represented litigant to know how to have his matter reviewed.  It cannot be said that the appellant did not take steps to have the matter reviewed.  As was stated by the appellant in giving evidence, the appellant did not just sit there and let it sit on the backburner.
50. [50]
    There appears to have been no delay between when the appellant was released from custody and his contacting the Magistrates Court to raise questions as to how he could have his matter reheard.  Since 25 August 2021, the appellant was consistently raising the same complaint, namely that the matter had proceeded to a hearing in his absence and when he was in police custody.
51. [51]
    As at 9 September 2021, the appellant had emailed the solicitors for the first respondent notifying them of his complaint and that he wished to appeal.  Despite having used the word “appeal” in the email, it seems mistakenly the appellant progressed the appeal by filing an application to vary, believing that was the means by which to have his appeal heard.  It seems to have then taken some months before the correct documentation was filed.  Certainly, as at that date, the first respondent was aware that the making of the protection order against the appellant was the subject of challenge.
52. [52]
    It could not be said that the appellant took no steps to institute the appeal.  Particularly where the order made will be in force for a number of years, it is appropriate to consider whether the interests of justice warrant the grant of an extension.

The parties’ contentions

53. [53]
    The focus of the appellant’s submissions is the question of his right to be heard.  In his outline of argument, the appellant refers to wanting to show that “the DVO hasn’t got any substance”.  The appellant says he wants to show how the first respondent has contradicted himself and lied and wants to question his mother and his sister in Canada about being included as ‘named persons’.
54. [54]
    In response to questions raised, the appellant referred in his oral submissions to the list of questions he had prepared as a result of the review hearing on 14 March 2021.  He confirmed his understanding that the questions were to be asked of the special witnesses by the Magistrate at the hearing.
55. [55]
    The submissions filed on behalf of the second respondent, with which the first respondent agreed, focused on the court’s power, pursuant to s 39 of the DFVP Act, to hear and determine an application in the absence of the respondent to the domestic violence application.  It was submitted that s 39 expressly authorised the learned Magistrate to make a decision in the absence of the appellant.  It was submitted that, given that the transcript revealed that the appellant had been notified, the onus was on the appellant to attend.  It was submitted that the Watchhouse records contained no notation of the appellant having informed police of his requirement to attend court and there is no evidence of the appellant making any attempt to notify.  It was submitted the conduct of the appellant is relevant in deciding the question of the interests of justice.

Consideration

56. [56]
    In considering the interests of justice for the purpose of the grant of an extension of time, it is necessary to consider the appellant’s ground of appeal of having been denied procedural fairness by the making of the protection order in his absence.
57. [57]
    The content of the duty to provide procedural fairness will depend on the circumstances.  As Gibbs CJ explained in National Companies and Securities Commission v The News Corporation Limited:

“The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.”^[7]

58. [58]
    In Taylor v Taylor^[8], Gibbs J, with whom Stephen J agreed, and Mason J, with whom Aickin J agreed, each viewed the discretion to set aside an order made in the absence of a party as a corollary to the requirement that, before a person can be adversely affected by a judicial order, he or she must be afforded an adequate opportunity of being heard.^[9]
59. [59]
    In the case of Taylor, the party’s failure to appeal was due to no fault of his own, and Mason J expressed the view that the discretion to set aside the order made in his absence should have been approached “on the footing that it was prima facia the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case.”^[10]
60. [60]
    In Allesch v Maunz, the majority considered that:

“… a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work and the remedial injustice to the other side.  In this last regard, it should be noted that injustice will often be capable of remedy by the imposition of terms as to costs.”^[11]

61. [61]
    The question is whether the learned Magistrate was entitled in the circumstances of this case to proceed in the appellant’s absence. 
62. [62]
    For the following reasons, I do not consider that the learned Magistrate should have proceeded to make the protection order on that day.  The appeal must be allowed and the matter remitted to be heard by a different Magistrate.
63. [63]
    First, I accept that the appellant had a reasonable excuse for his non-attendance.  I accept that he raised his court appearance with the police.  His correspondence with the Magistrates Court about his appearance on 15 July 2021 shows that he was clearly intending to be at court that day and that his appearance at court that day was a matter at the forefront of his mind.  I am therefore satisfied that he would have raised the matter with police at the Watchhouse.  I accept that there is no notation in the QPRIME records but I do not accept that the matter having been raised with police would have necessarily been recorded in the QPRIME records.  The appellant’s appearance that day was not an appearance on a criminal matter and I am not satisfied that a notation would have been necessarily made by the police.  I do not accept that the appellant had any other means of notifying the court given that he was in police custody in the Brisbane Watchhouse.
64. [64]
    Second, the matter before the learned Magistrate that day was a review mention, not a hearing.  The matter was not before the learned Magistrate for the purpose of “hearing and deciding an application for a protection order”.  It is clear from the Magistrates Court file, and accepted by the respondents, that the hearing had been set down, for the following week, on 22 July 2021.
65. [65]
    Section 39 of the DFVP Act provides:

“39Hearing of application—non-appearance of respondent

3. (1)
   This section applies if a respondent fails to appear before the court that is to hear and decide an application for a protection order and the court is satisfied that the respondent has been served with a copy of the application.

…

3. (2)
   The court may—

1. (a)
   hear and decide the application in the absence of the respondent; or

2. (b)
   adjourn the application, whether or not it makes a temporary protection order under division 2; or

3. (c)
   subject to section 156(1), order the issue of a warrant for the respondent to be taken into custody by a police officer and brought before the court.”

66. [66]
    The power granted to a court by s 39(2) to “hear and decide an application in the absence of the respondent” is a power granted where that failure to appear is a failure to appear “before the court that is to hear and decide an application for a protection order”.  On 15 July 2021, the learned Magistrate was not presiding over the court that was to hear and decide the application.  Section 39 did not apply. 
67. [67]
    Third, even if the learned Magistrate considered that, as she was asked to do, she had power to make a protection order in the absence of the respondent, to do so in the circumstances of this case resulted in a denial of procedural fairness. 
68. [68]
    The Magistrates Court file reveals that at the review mention on 15 April 2021, the learned Magistrate presiding on that day had directed that the parties agree a series of questions to be put to the protected witnesses.  At the appeal hearing, I was told and I accept that the appellant had prepared his list of questions which he wished to have asked.  Whilst the questions had not been provided to the respondents, I accept that the appellant believed the questions were to be given to the Magistrate at the hearing and the Magistrate would ask the questions.  Obviously, the Magistrate would only ask the questions that the Magistrate considered were appropriate to be asked in cross-examination and the asking of any questions could be subject to objection by the respondents. 
69. [69]
    The giving of that direction on 15 April 2021 must be viewed in the context of the appellant having sought leave to issue subpoenas directed to three witnesses, two of those witnesses and another witness being subsequently the subject of special directions for the giving of their evidence, and an order being made that the appellant may not cross-examine those witnesses and the appellant’s application for legal aid for the appointment of a lawyer to perform the cross-examination having been refused. 
70. [70]
    As a result of the matter proceeding without a hearing, those questions were not asked.  The appellant was denied the opportunity of challenging those witnesses in relation to the affidavits filed in the proceeding.
71. [71]
    The appellant was clearly not afforded an adequate opportunity of being heard.
72. [72]
    The next issue is whether affording the appellant the opportunity for the questions to be asked will result in a different outcome.
73. [73]
    The appellant did not provide this court with the questions which he submits the court should ask of the witnesses. It is therefore impossible to know not only whether a court would ask them, whether any were relevant to the decision the court had to make on the hearing of the application or what effect any answer given might make on the decision-making process.
74. [74]
    On the other hand, the appellant admits sending the emails the subject of the application. The contents of the emails which have been sent by the appellant to the first respondent and the named persons are abusive and threatening. The appellant was in prison for breaching a domestic violence order made in favour of his ex-wife. It may be inferred, accordingly, that there would be a basis for concluding that the appellant had committed domestic violence against the first respondent and the named others and that a protection order was necessary or desirable to protect the first respondent and the named others against domestic violence.
75. [75]
    In this case there was no distinct finding to that effect by the Magistrate. After the two hours break in the proceeding, the Magistrate returned to court and simply made the statement quoted earlier. In a busy court with many applications for domestic violence orders it may not be unreasonable for a judicial officer to approach the task on the basis that it was not necessary to read every word as long as they got the gist of it. The Magistrate may not have meant to connect the fact that someone had made a temporary protection order with the appropriateness of her making a permanent one. Nevertheless, the only recorded reasoning is that the Magistrate did not have a problem with making a protection order in the same form as the temporary order. To compound matters, after that decision, the solicitor for the first respondent then made some remarks about the appellant’s mental health which the Magistrate adopted and reinforced. 
76. [76]
    There is not much worse for faith in our system of justice than that people are excluded from having a voice or that they have not been fairly heard before a decision is made which impacts them.
77. [77]
    Notwithstanding my concerns as to ultimately whether the result will be any different, the manner in which the matter proceeded that day to the making of a final order in the absence of the appellant, in circumstances where the appellant had been fully engaged in the process, is a very clear example of a denial of procedural fairness. 
78. [78]
    In those circumstances, I consider that the court has no alternative but to allow the appeal, set aside the permanent protection order and remit the matter to the Magistrates Court for hearing.
79. [79]
    Given its terms, the temporary protection order remains in place under the terms of that order. That was not disputed by the appellant. Nor could it be; no appeal was brought against the making of the temporary protection order and the appeal was limited to the fact that the appellant was not heard at the time of the making of the permanent protection order.
80. [80]
    I am willing to hear the parties on the question of costs but my preliminary view, taking into account the whole of the case and the basis for allowing the appeal and the very limited costs that could be awarded to self-represented persons, is that there should be no order as to costs.  If the appellant or any other party wishes to contend otherwise they should provide written submissions of no more than four pages in length by 6 September 2022 by emailing my associate, copied to all other parties.  In the absence of any submissions, I will make an order that there be no order as to costs.
81. [81]
    The orders of the court are:

1. The time for the filing of the notice of appeal is extended to 17 February 2022.

2. The appeal is allowed and the protection order made on 15 July 2021 is set aside.
3. The matter is remitted for hearing in the Magistrates Court at Southport before a different Magistrate.
4. If any party wishes to make submissions as to costs, including submissions as to the amount of those costs, submissions of no more than four pages in length must be filed and served on all other parties by 6 September 2022.