SNW v TRD[2023] QDC 149

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 14 December 2022, the Magistrates Court at Caboolture made a protection order against the appellant.  The protection order was made on the terms of an extant temporary protection order for 5 years. 
2. [2]
   The order was made, relevantly, in the following circumstances.

   1. First, the matter had been listed for mention on that date.  It was not listed for hearing.  The first respondent’s solicitor did not ask the Magistrate to proceed to final orders;
   2. Second, the appellant did not appear, and the learned Magistrate had a basis to believe the appellant did not appear because he was in another court dealing with a criminal matter;
   3. Third, the learned Magistrate did not appear to have had the appellant called;
   4. Fourth, the learned Magistrate made final orders in terms of the temporary protection order without considering any evidence which might have been filed; and
   5. Fifth, the learned Magistrate gave no reasons.
3. [3]
   The orders should not have been made in those circumstances.
4. [4]
   The first, second and third matters resulted in the hearing of the application being unfair, contrary to the express requirements of rules 22 and 23 of the Domestic and Family Violence Protection Rules 2014 (Qld) (DFPV Rules), especially r 23(2)(b):  

   1. If a matter is not listed for a final hearing, a respondent is entitled to act on the basis that no final orders will be made.  Of course, a party to an application ought to appear on all mentions of a matter, but that does not mean that if they do not the Court can unilaterally change the nature of the listing.   
   2. If a party does not appear, but the Court has reason to believe they have been delayed or are taken up in another Court, or might be in the Courthouse but not in the Court, the Court must take reasonable steps to give the absent party an opportunity to appear.  In this case, the learned Magistrate made final orders at 9.18am, 7 minutes after the matter was called, and without having had the appellant called nor even inquiring with his solicitor, who appeared seemingly with instructions to seek an adjournment of a criminal matter, as to whether her client could appear later in the day.
5. [5]
   The fourth and fifth matters have the consequence that the orders were affected by legal error.  As to these matters, the learned Magistrate appears to have proceeded on the basis that the Court can give ‘default judgment’ on an application for a protection order.  That is, where there is default in appearance, the Court has power to make protection orders without any substantive consideration of the merits of the matter and without any reasons being given.  That is an incorrect basis to proceed.
6. [6]
   Perhaps the learned Magistrate had in mind the procedures for entry of default judgment under Part 1 Chapter 9 Uniform Civil Procedure Rules 1999 (Qld).  However, those Rules do apply only to appeals under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA).^[1]  Even if they did, they would not be apt to authorise the making of a protection order without consideration of the merits.  In any event, hearings in the Magistrates Court of applications for protection orders are regulated by the DFVP Rules.  They make no provision for default orders. 
7. [7]
   By s 37(1) DFVPA, Parliament has identified the circumstances in which a court’s discretion to make a protection order against a person arises.  The DFVPA requires the court to be satisfied of the three matters in subparagraphs 37(1)(a), (b) and (c).  In the absence of express statutory provision for protection orders to be made other than on the merits, there is no power to make a “default” protection order.  Protection orders must be made on the merits and must be accompanied by adequate reasons.^[2]  That remains the position where the respondent does not appear.  
8. [8]
   To avoid doubt, s. 39 DFVPA provides no power to make a default order. That provision allows ‘the court that is to hear and decide an application for a protection order’ to hear and decide the application in the absence of the respondent.  Hearing the application in the absence of the respondent does not equate to making an order without considering the merits of the application.  And in this case, the Court should not have proceeded in the absence of the appellant in any event for the reasons already articulated. The power to hear and determine the matter in the absence of the respondent must be exercised having regard to rr 22 and 23 DFVPR and the requirements of natural justice at common law.  That power will rarely if ever be properly exercised where the application is listed for mention only.^[3]
9. [9]
   This is not the first time that a protection order has been set aside because it was made “in default of appearance” and without consideration of the merits or provision of any reasons.^[4]   It might be helpful if the Magistrates who might be called on to hear applications in this area are reminded that there is no power to make orders in default of appearance without considering the merits of an application for a protection order and giving reasons.  
10. [10]
    The parties to the appeal agreed that the appeal should be upheld, and the protection order dismissed, materially for the reasons set out above.  The appeal was filed out of time.  However, the parties were agreed that there should be an extension of time to appeal, and I agree.  In those circumstances, I make the following orders:

    1. Leave to appeal be granted;
    2. The appeal is allowed;
    3. The protection order made in the Caboolture Magistrates Court on 14 December 2022 is set aside;
    4. The application for a protection order is remitted to the Caboolture Magistrates Court for rehearing before a different Magistrate;
    5. A temporary protection order is reinstated/made in identical terms to the termporary protection order made in the Caboolture Magistrates Court on 30 August 2022;
    6. There be no order as to costs.