GUP v YNM[2023] QDC 185

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant and the respondent in this appeal were in a relationship.  They had a child together from that relationship. 
2. [2]
   The appellant appeals the making of a protection order in the Pine Rivers Magistrates Court on 15 March 2023 under s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act).  The protection order was made for five years.  The order was in the same terms as the temporary protection order which was made on 21 December 2022.  The conditions of the order contained the usual terms including that the appellant was prohibited from contacting or attempting to contact or asking someone else to contact the respondent (with the necessary exceptions for the purposes of arranging contact with the child) or from following or approaching to within 100 metres of the respondent. 
3. [3]
   At the hearing of the appeal, the appellant was self-represented.  The respondent had legal representation.
4. [4]
   The appellant appeals the making of the protection order, in essence, on the grounds that the Magistrate proceeded to make the protection order without the appellant being given the opportunity to state his case.
5. [5]
   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 respondent was the aggrieved below.

Nature of appeal

6. [6]
   A person who is aggrieved by a decision to make a domestic violence order may appeal against the decision.^[1]
7. [7]
   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.
8. [8]
   Section 168 of the DFVP Act provides:

3. “168
   Hearing 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.”

9. [9]
   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]
10. [10]
    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.
11. [11]
    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

12. [12]
    The temporary protection order made on 21 December 2022 was made prior to the appellant being served.  At the hearing on that date, the matter was adjourned to 1 February 2023 for mention to enable service on the appellant.
13. [13]
    On 1 February 2023, both the appellant and the respondent attended at the courthouse.  Each were represented, with the appellant being represented by the duty lawyer.  The duty lawyer requested on behalf of the appellant a one month adjournment “for further legal advice”.  The matter was adjourned to 22 February 2023 for mention and the temporary order was continued.
14. [14]
    On 20 February 2023, the appellant sent an email to the Pine Rivers Courthouse requesting that his upcoming court date be rescheduled to a later date in March.  The email explained that the appellant had signed up for counselling and would like to have his second session before he attended court.  He stated that he was not coping well mentally at the moment and that he had been advised legally to have the second session before attending court.  He further stated that he had “pressure from work” and that “this [was] a financial year end reporting week.” 
15. [15]
    On 22 February 2023, the matter was mentioned again in court.  On that occasion, the respondent appeared by phone and it was noted by the Magistrate that the appellant had sent an email.  The Magistrate noted that the email from the appellant said that he was attending counselling and that he had requested an adjournment “for a couple of weeks”.  The Magistrate adjourned the matter to 15 March 2023 (the next day the lists were to be in that court).  Following a request from the respondent, the respondent was granted leave to appear by phone at the next mention.  The matter was adjourned to 15 March 2023 with the temporary order to remain in place.
16. [16]
    On 13 March 2023, the appellant sent an email to the courthouse requesting a further adjournment, preferably to the last week of April.  The appellant explained that he had recently resigned his job to focus on his mental health, he was still going through the mediation process to get access to his daughter, he was still seeing a psychologist to make sense of what had happened, he had not told his side of his story to his family due to the fact that he had a lot on his plate, he had not made any contact with the respondent since she moved out and a short adjournment of two weeks would not help him go through his situation properly.  In the email, he asked that he be told if anything further was needed from him.
17. [17]
    A responsive email was sent from the courthouse informing the appellant that his email had been placed on the file for the Magistrate’s consideration.  He was told that he would need to contact the registry via email after 15 March 2023 for the outcome.
18. [18]
    On 15 March 2023, the matter was again mentioned.  The respondent was self-represented and appeared by phone.  The Magistrate stated, in relation to the appellant, that he had sent an email on Monday, 13 March 2023 saying he would like an adjournment.  The Magistrate referred to the fact that the appellant had recently resigned from his job to focus on his mental health and that he was still seeing a psychologist.  The Magistrate noted that he had not yet told his side of the story to the family.  Initially the Magistrate stated that she would give him this opportunity at this stage. 
19. [19]
    The respondent submitted to the Magistrate that she had been coming to court and that the appellant kept adjourning the matter and stated, “I don’t know how long I can keep doing this.”  The Magistrate then asked the appellant whether she wished for her to make a final order.  The respondent responded “Yes please.”  The Magistrate then commented that the matter had been to court a few times and that she would go through the history of the case and would finalise the order given that the appellant had been served.
20. [20]
    The Magistrate then read into the record a short summary of the matter and finalised the order.  In the reasons, no mention was made as to the order being necessary or desirable to protect the respondent. 

The parties’ submissions

21. [21]
    Counsel for the respondent accepts that on 15 March 2023 the matter had been set down for mention.  Counsel stated that the respondent, by his email of 13 March 2023, indicated for the first time that the making of the protection order was contested.
22. [22]
    Counsel for the respondent accepted that, in those circumstances, on first blush, his client would lose as the appellant had been deprived the opportunity to present his story.  Counsel submitted, however, that on a close inspection there was no error in the Magistrate proceeding and refusing to grant the adjournment because:

1. The appellant had been afforded sufficient opportunity prior to 15 March 2023 to tell his version of events and had failed to do so and therefore had not properly engaged in the process; and
2. The Magistrate had to consider the adverse impact on the respondent.

23. [23]
    Counsel for the respondent said that s 39 of the DFVP Act gave the Magistrate a choice relevantly, where the respondent had failed to appear, to either hear and decide the application in the absence of the respondent or adjourn the application.
24. [24]
    Counsel said s 39 applied notwithstanding, as counsel accepted was the case here, the matter had been set down for a mention on that date, not a hearing.  It was submitted, given the court’s discretion pursuant to s 39, before the protection order could have been set aside, the court would need to find a House v The King^[6] error.  It was submitted, in the circumstances, it was not plainly unjust or unreasonable to exercise the discretion in the way in which the Magistrate chose to do so on 15 March 2023.
25. [25]
    Further, it was submitted the Magistrate’s reasons disclosed the Magistrate was satisfied of the prerequisites to the making of a protection order as set out in s 37(1) of the DFVP Act, namely the existence of a relevant relationship, the appellant having committed domestic violence against the respondent with reference being made to the fact of the appellant being said to be controlling and the respondent having suffered emotional abuse and the order being necessary or desirable to protect the respondent.
26. [26]
    It was submitted that satisfaction of the latter could be inferred by the reference by the Magistrate to the child and to the exception for there being contact for the family law matters.

Consideration

27. [27]
    It was accepted that the essence of the appeal is whether the appellant has been denied natural justice or prejudicial fairness in the making of the protection order in his absence.
28. [28]
    For the following reasons, I do not accept that the learned Magistrate should have proceeded to make a protection order on 15 March 2023, and accordingly the appeal must be allowed and the matter remitted to be heard by a different Magistrate.
29. [29]
    First, it is accepted that the matter before the learned Magistrate that day was a review mention, not a hearing.  No directions had been made for the matter to proceed to a hearing on that day.  Counsel for the respondent accepted it was clear from the terms of the appellant’s email that the application was contested.  He accepted it was clear that the appellant wished to have the opportunity to tell his story.
30. [30]
    Given that it was accepted that the matter had been set down for a mention, as distinct from a hearing, it might be said that s 39 of the DFVP Act does not apply because the court was not on that day to “hear and determine” the application for a (permanent) protection order; as distinct from a temporary protection order under Division 2 of Part 3.  Section 39 of the DFVP Act provides:

3. “39
   Hearing 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—

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

3. (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.”

31. [31]
    Even assuming s 39 did apply and the Magistrate had a statutory right to proceed in the absence of a respondent, that statutory discretion must be exercised having regard to the Domestic and Family Violence Rules 2014 (Qld) and in particular r 23, and in compliance with the requirements of natural justice and procedural fairness at common law.  As Gibbs CJ explained in Natural Companies and Securities Commission v 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]

32. [32]
    In Taylor v Taylor, Mason J expressed the view that the discretion to set aside the order made in the absence of a party should have been approached “on the footing that it was prima facie 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.”^[8]
33. [33]
    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 an irremediable 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.”^[9]

34. [34]
    Second, in his email correspondence, the appellant had explained his request for an adjournment.  The appellant was a self-represented litigant with clearly limited understanding of the legal system.  He was suffering mental health issues and was still seeing a psychologist.  He had expressed a wish to tell his side of the story but given the state of his mental health needed more time to do so.
35. [35]
    For the purposes of each mention, the appellant had forwarded correspondence prior to the mention date to the court to make his request and had explained the basis of his request.  It could not be said that the appellant was not engaging in the process. 
36. [36]
    Third, it is difficult to accept that the respondent would have been seriously adversely impacted by a further adjournment in circumstances where the matter had not as yet been set down for a hearing nor had directions been made to enable the hearing to occur, and where the temporary protection order had been made and was to be continued.  Having said that, there is no doubt that it is in the interests of all parties for these types of matters to be finalised in a timely manner.
37. [37]
    Fourth, given that the matter was not listed for a final hearing, the appellant was entitled to act on the basis that no final order would be made.  No real delay would have occurred if the court at the mention on 15 March 2023 had proceeded to make directions for the final hearing, as distinct from unilaterally changing the nature of the listing to being a final hearing.
38. [38]
    The appellant was clearly not afforded an adequate opportunity of being heard and not given an opportunity to test the evidence of the respondent.
39. [39]
    In those circumstances, I consider that this 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 according to law.  The matter should be remitted to be heard before a different Magistrate.
40. [40]
    Given its terms, the temporary protection order will remain in place under the terms of that order.
41. [41]
    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 a self-represented person, 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 26 October 2023 by emailing my associate, copying the other party.  In the absence of any submissions, I will make an order that there be no order as to costs.
42. [42]
    The orders of the court are:

1. The appeal is allowed and the protection order made on 15 March 2023 is set aside.
2. The matter is remitted for hearing in the Magistrates Court at Pine Rivers before a different Magistrate.
3. 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 the other party by 26 October 2023.