HFL v PLL[2022] QDC 219

7. [7]
   The appellant’s submissions neatly outline the basis of this appeal and place in context the matters already canvased in the background above. Those submissions are as follows;-^[5] 

“(12) Section 52 of the Domestic Violence and Family Protection Act empowers a court to name, in a domestic violence order, a relative or associate of the aggrieved if the court is satisfied that naming the relative or associate in the order is necessary or desirable to protect the relative or associate from associated domestic violence. If a respondent to a domestic violence order does not comply with a domestic violence order, a police officer can charge the respondent with an offence. A named person in a domestic violence order can complain to a police officer that a respondent is not complying with an order.

13. (13)
    By virtue of the variation to the 2019 Order, naming the Named Persons, the appellant is now:

1. (a)
   Prohibited from approaching within 100 metres of where the Named Persons work or live;

2. (b)
   Prohibited from contacting or attempting to contact the Named Persons; or

3. (c)
   Prohibited from approaching within 100 metres of Named Persons when they are at any place;

4. (d)
   Liable to be complained about to police by the Named Persons and charged with a criminal offence if the 2019 Order is breached. 

14. (14)
    In the circumstances outlines at paragraph 1-8 and 14-15 above, the appellant submits that the primary magistrate made a discretionary error.  It is plainly unjust that the primary magistrate varied the 2019 Order to include the Named Persons in circumstances where:

1. (a)
   From the outset of the hearing at first instance, the respondent withdrew the issue of the inclusion of the Named Persons on a variation of the 2019 Order;

2. (b)
   No evidence was given, tested, or put to any party which might have formed a proper basis for varying the 2019 Order in this way;  and

3. (c)
   The appellant is now at risk of being charged with an offence if he breaches the terms of the 2019 Order.

15. (15)
    It is essentially that the grounds upon which a decision rests are articulated by a judicial decision maker to the parties to a dispute (although the reasons do not need to be lengthy or elaborate).  The appellant submits that the primary magistrate failed to give adequate reasons for including the Named Persons in a variation of the 2019 Order because no reasons whatsoever are articulated in the decision of the primary magistrate explaining why it was necessary or desirable to vary the order in this way.

16. (16)
    In terms of procedural fairness, where a court is considering making an order that has not been reasonably foreshadowed during the conduct of the case, and that order might adversely affect a party’s rights, it is incumbent on the court to afford the affected party the opportunity to call rebutting evidence and make submissions.

17. (17)
    The appellant was not given any opportunity to address the inclusion the Named Persons in the 2019 Order either by the calling of evidence or the making of submissions.  If it was the case that the primary magistrate formed the view that the Named Persons ought to be included on the variation of the 2019 Order after his Honour heard the evidence and submissions and despite the withdrawal of the issue by the respondent, then it would have been appropriate, in the circumstances of the case, to at least recall the parties to make submissions on the issues.  This did not occur.

18. (18)
    In the premises of the above decisions, the court ought to find that each of the three appeal grounds are made out.”

8. [8]
   In my view, the submissions made on behalf of the appellant are unassailable. The obligation to provide reasons is specifically identified, by way of example, in the decision of Soulemezis v Dudley (Holdings) Pty Limited [1987] 10 NSWLR 247.^[6]

9. [9]
   The lack of procedural fairness in considering making an order, much less making it, without giving, in this case, either party any notice of making an order that might adversely affect the party’s rights is undoubtedly a breach of the obligation of procedural fairness and again, by way of illustration, the decision in the National Companies and Securities Commission v News Corp Ltd [1984] 156 CLR 296, is but one example illustrating that principle.^[7]

10. [10]
    It is unclear why the learned magistrate at first instance made the decision in light of the way in which the proceedings had been litigated, but it is clear that the lack of reasons and the lack of procedural fairness make it imperative that the legal errors identified and articulated in the submissions that I have referred to in these reasons be set aside, particularly given, of course, the consequences which have been clearly articulated for the appellant. The decision, as it currently stands, subject to this appeal, puts the appellant at risk not only of breaching the order but, of course, of criminal consequences for any such breach. And in the circumstances of how this matter was litigated that is, with respect, unfair and should be remedied on this appeal. Accordingly, it will result in the appeal being granted.

Costs

11. [11]
    There is a further issue of costs which arises in this matter. The respondent, PLL, did not appear at the hearing of this appeal, having identified in advance to the appellant’s lawyers that she would not be appearing and was doing so, essentially, because she did not oppose the appeal and did not wish to incur further costs. That, in my view, is an entirely sensible decision and so the appeal has proceeded, uncontested.

12. [12]
    Further, the lack of procedural fairness was not contributed to by the respondent. The concession of the appeal, however, has come at a substantial financial cost to the appellant, which flows directly from the necessity of correcting the decision of the learned magistrate which failed to provide either procedural fairness or adequate reasons.

13. [13]
    It follows that I should make an order for costs in favour of the appellant, but I am mindful of the potential for unfairness to the respondent in making such an order.

14. [14]
    The decision in RIS v DOL & Anor (No.2) [2021] QDC 157 has quite striking parallels;  although, the respondent in that case did, in fact, appear on the appeal and seek to uphold the primary decision, which similarly was made without any consideration of procedural fairness.

15. [15]
    The solution, in my view, as articulated in RIS v DOL & Anor (No.2) [2021] QDC 157,^[8] is to make an order in favour of the appellant, against the respondent (there not being the capacity to otherwise make an order, as I understand it), but at the same time, make an order for the issue of a certificate pursuant to the Appeal Costs Fund Act 1973 (Qld) so that the order made in favour of the appellant can then be dealt with pursuant to the provisions of the Appeal Costs Fund Act 1973 (Qld)).

16. [16]
    Helpfully, Mr Bolovan, who appears for the appellant, has, through his instructing solicitors, provided an outline of the costs involved, which, in my view, should be ordered as fixed costs, and the effect of that is that it is not necessary to consider in those circumstances whether an order for indemnity costs should or should not be made, but rather I propose to make an order fixing the costs and then an associated grant of an indemnity certificate pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Qld).

17. [17]
    The past and current costs anticipated and sought set out at exhibit 3 and are articulated as follows:-^[9]

1. (a)
   $138.63 – Cudmore legal professional fees

2. (b)
   $1361 – filing fees of the District Court of Queensland

3. (c)
   $3025 in counsel fees – preparation of the notice of appeal

4. (d)
   $3025 in counsel fees – preparation of submission

5. (e)
   Counsel fee – $3025 – counsel fees for the hearing on 5 August 2022

Total:  $10,574.63.

18. [18]
    I note that Mr Bolovan’s instructing solicitors, Cudmore Legal, are conducting the matter on a pro bono basis, which is to be commended given the nature of the appeal and the significant amount of preparation clearly required to bring this matter to the hearing today. The undertaking of matters on a pro bono basis are a significant obligation by any legal practitioner and in a matter where there’s been a clear error, as in this case, it is deeply appreciated by courts at an appellate level that solicitors are prepared to undertake the necessary legal work in order to bring the matter before the court and, might I say, in a manner that is extremely well-prepared, well-articulated and has, undoubtedly, assisted this court to understand and which conclusions in respect of the appeal.

19. [19]
    It follows, then, that the appeal should be granted, an order for costs made, and a certificate issued under the Appeal Costs Fund. I make the following orders:-

1. (1)
   Appeal allowed; 

2. (2)
   Decision of the Magistrates Court of Queensland dated 4 February 2022 be set aside; 

3. (3)
   That the application to vary a domestic violence order be granted varying the protection order made on 27 February 2019 in terms as those contained in the temporary protection order made on 19 August 2020, save for the inclusion of REX and DSY as named persons protected by the order;

4. (4)
   The respondent pay the appellant’s costs of the appeal fixed at $10,574.63;

5. (5)
   The respondent be granted an indemnity certificate in respect of the appeal under s 15(2) of the Appeal Costs Fund Act 1973 (Qld).