GNI v Queensland Police Service
[2023] QDC 28
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- Unreported Judgment
- GNI v Queensland Police Service[2023] QDC 28
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GNI v Queensland Police Service[2023] QDC 28
GNI v Queensland Police Service[2023] QDC 28
DISTRICT COURT OF QUEENSLAND
CITATION: | GNI v Queensland Police Service [2023] QDC 28 |
PARTIES: | GNI (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | BD No 2089 of 2022 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 13 February 2023 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 February 2023 |
JUDGE: | Porter KC DCJ |
ORDER: |
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CATCHWORDS: | MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – WHEN APPEAL LIES – where the learned Magistrate made a protection order against the appellant in the absence of the appellant’s appearance – where the appellant failed to appear because his solicitor was a few minutes late – where the Magistrate refused to reopen the proceedings when the appellant’s solicitor arrived prepared to make submissions – whether the protection order imposed against the appellant should be set aside Legislation Domestic and Family Violence Protection Act 2012 (Qld) |
COUNSEL: | M Longhurst for the Appellant Mr O'Brien (solicitor) for the Respondent |
SOLICITORS: | TWC Lawyers for the Appellant QPS Legal Office for the Respondent |
- [1]This is an appeal from the making of a protection order under the Domestic and Family Violence Protection Act 2012 (Qld) (the Act). The order was made on 18 August 2022. It contained some of the usual provisions although it required GNI not to approach within 500 metres of a premises where the aggrieved lives, works or frequents.
- [2]There was a temporary protection order made, and the matter was adjourned for mention to 18 August 2022. The matter had not been specifically listed for a final hearing, although it is the case that the notice of adjournment of the first return of the protection order warned that if a person did not attend, a domestic violence order may be made in the person’s absence, or the Court may issue a warrant for their arrest.
- [3]That notice, does not, I think, sufficiently communicate the prospect of a final order being made. In any event, the matter had not been listed for hearing on 18 August 2022. What happened was GNI did not attend on 18 August 2022, and his Honour made orders in his absence.
- [4]I have not researched this myself, but I am told by counsel for GNI that neither the Act, nor the rules, specifically provide for making a final protection order based on default alone. It seems to me that there are good reasons why that would be so, although I do not express a final view about that without undertaking my own analysis of the Act. Certainly, the understanding of those who appear in the jurisdiction and appear before me today, is that reasons ordinarily should be given for making a final protection order. His Honour seemed to think that he was required to do so, but his reasons were, respectfully, inadequate to articulate any proper basis for making the orders. The orders appear to have been made based solely on the default in appearance.
- [5]One can understand how this might have happened in a busy domestic violence list. It is what happened thereafter which is unfortunate. I gave leave to Mr Hwang, who was the solicitor for GNI, to file an affidavit explaining what occurred. Mr O'Brien for the QPS, in my respectful view correctly, did not oppose leave for me to consider that evidence on the appeal, and I cannot think of evidence more relevant and important to the proper conduct of this appeal where a final order has been made in default of appearance than Mr Hwang’s affidavit.
- [6]Mr Hwang’s affidavit frankly accepts responsibility for failing to attend at the mention. He deposes that he arrived at Richlands Courthouse about 9.40AM. His Honour gave reasons at 9.43AM. Mr Hwang clearly just missed the matter. That was unfortunate, and it is a salutary lesson to solicitors of just how important it is to give yourself plenty of time to spare when attending even mentions. As I learned during my career, if you are not there, anything can happen.
- [7]In any event, I say, respectfully, Mr Hwang’s transgression should be just a learning experience, because after he arrived, he took all reasonable steps to get the matter back before his Honour and to make submissions. Mr Hwang’s evidence about that, which was not challenged by Mr O'Brien, was as follows:
12. I then entered the courthouse and walked up the security guard (sic) to note my attendance however, the security guard advised me that the matter has been finalised without the Respondent’s attendance.
13. I asked the security guard if the presiding Magistrate could re-open the matter so that I may advise the Court how the Respondent wishes to progress the matter as his representative.
14. The security guard then went into Court 2 which was hearing domestic violence matters at the time and was closed to the public.
15. The security guard come out of the Court room and advised me that Magistrate Shearer would not re-open the matter.
16. I then advised the security guard that I wished to enter the Courtroom myself to request the re-opening of the matter however, the security guard advised that this was not possible due to it being a closed Court.
17. I then contacted Mr Rodney Keyte of our office, who was experienced in appearing in front of Magistrate Shearer and enquired about our position.
18. Mr Rodney Keyte then advised that he is close by and would attend Richlands Courthouse.
19. Mr Keyte arrived at 11:30am and whilst Magistrate Shearer was on break Mr Keyte and I entered Court 2 to request that the matter be re-opened.
20. Upon Magistrate Shearer returning from his break, Mr Keyte made submissions apologising for the delay in attendance from our office and requesting that the final order made today be set aside as we have now appeared and had previously received instructions from the Respondent that the matter is contested.
21. Magistrate Shearer did not accept Mr Keyte’s submissions and advised that the order is finalised in absence of the Respondent’s appearance.
22. I then attended the Court’s Registry and obtained the final domestic violence order made by Magistrate Shearer.
- [8]In my respectful view, it was quite wrong not to hear GNI’s representatives once it was clear they wished to appear and explain why no one had appeared. It seems to me that, even in the absence of specific orders, where a civil order of this kind is made in default of appearance and almost immediately it is explained that the failure to appear was by mistake of a person’s legal representatives, it should follow almost as a matter of course that that order be set aside or, at least, the solicitor should be heard as to whether there is a basis properly to set it aside.
- [9]I am conscious of the pressure on Magistrates in the domestic violence list, but it was a very significant miscarriage of justice not to set aside this order once the solicitors explained what occurred. This should have been sorted out in two minutes that morning, not required to be dealt with on an appeal.
- [10]At the time the order was made, a temporary protection order was in place. GNI is willing to consent to the re-enlivening of that order pending the further determination of his defence to the application for the orders.
- [11]I therefore intend to make orders reinstating the temporary protection order in the form that counsel agree, setting aside the protection order that was made, and remitting the matter for further consideration by a different Magistrate. I will rely on counsel to bring in orders to give effect to that.
- [12]I make no order as to costs, because in the great traditions of the Bar, the appearance is a pro bono appearance, but clearly the sort of thing counsel should be doing if they can.