DCL v CAW; CAW v DCL[2017] QMC 3

MAGISTRATES COURT OF QUEENSLAND

1. [1]
   There are three applications before the Court under the Domestic and Family Violence Protection Act.

2. [2]
   The history is that on 17 June 2015 this Court made a Protection Order against D C L as the Respondent and C A W as the Aggrieved.

3. [3]
   On 5 August 2015 this Court made a Protection Order against C A W as the Respondent and D C L as the Aggrieved.

4. [4]
   So there are cross orders against each party.

5. [5]
   On 1 March 2017, L filed two application to vary a domestic violence order in relation to the above Orders.

6. [6]
   In relation to the order where L is the Respondent, L seeks to have that order revoked.

7. [7]
   Where W is the Respondent, L seeks to extend and vary the order.

8. [8]
   On 10 March 2017, W also filed application to vary the domestic violence order where W is the Respondent by having the order revoked.

9. [9]
   The applications came before the Court on 10 March 2017 and all applications were set for hearing on 29 May 2017 at 9:00am and directions given including filing and serving affidavits.

10. [10]
    The power to give directions is pursuant to the Domestic and Family Violence Protection Rules 2014 which governs the procedures of a court and how various matters pending before the court are handled and processed.

11. [11]
    The Court may issue directions including that evidence of a person be given by affidavit, how and when the affidavit is to be filed and served, that further details of things in an affidavit be provided and that scandalous or oppressive material be removed from an affidavit: (rule 22, Domestic and Family Violence Protection Rules 2014).

12. [12]
    Affidavits are used in court as evidence in chief although it should be noted that an affidavit which has been filed does not become evidence until it is read to the Court: Manson v Ponninghaus [1911] VLR 239. Efficiency, convenience and economy are the three touchstones why affidavits are used. In ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Young J said at 197: “It cannot be emphasised too greatly that one’s obligation in making an affidavit is the same as when one is giving evidence in the witness box.”

13. [13]
    There are specific rules relation to affidavits –

• Rule 35 (Domestic and Family Violence Protection Rules 2014) sets out the requirements for affidavits;
• Rule 36 outlines the requirement to swear or affirm an affidavit; and
• Rule 37 states that an affidavit can only be used in a proceeding if it has been filed, unless the court orders otherwise.

14. [14]
    L was to file and serve affidavit/s on or before 4:00pm on 18 April 2017.

15. [15]
    W is to file and serve affidavit material on or before 4:00pm on 22 May 2017.

16. [16]
    L on Thursday, 13 April 2017, emailed the registry asking for a two week extension of time to 2 May 2017 to file and serve affidavit material. That was just before the Easter break. The email indicates L has applied for Legal Aid and that application is under review. L spoke to Legal Aid on 12 April 2017 and a decision would be made “next week given the Easter break”.

17. [17]
    I gave direction to the registry to list the application at 8:45am on 27 April 2017 before the Court and to advise all parties with a further direction L file and serve an affidavit in support of the application by 4:00am on 21 April 2017.

18. [18]
    That is because there is a principle of law that, save in the most exceptional circumstances, there should be no communication or association between the Magistrate and one of the parties otherwise than in the presence of, or with the previous knowledge and consent of, the other party (or parties) once a case is under way. See McInerney J in R v Magistrates’ Court at Lilydale; Ex parte Ciccone [1973] VR 122 (at 127) in a statement provided in Re JRL; Ex parte CJL (1986) 161 CLR 342 by Gibbs CJ (at 346) and Mason J (at 350-351).

19. [19]
    The Domestic and Family Violence Protection Rules 2014 in Rule 25 provides: Revoking or varying order made or direction issued under rules, A DFVP court may at any time vary or revoke and order made or direction issued under these rules.

20. [20]
    When giving directions on 10 March, I was also mindful of the matters listed in rule 23 including that each party is entitled to a fair hearing; and the time allowed for taking a step in the proceeding and for the hearing was reasonable.

21. [21]
    If the party is unable to comply with directions issued by the Court including time limits for filing and serving affidavits, then application should be made to the Court as early as possible to vary or revoke the directions so as to avoid any injustice.

22. [22]
    Failure to comply with directions does not make the proceedings a nullity pursuant to rule 26, however there may be other consequences.

23. [23]
    I make the following general comments.

24. [24]
    The Court might not allow the affidavits to be used as evidence if it is filed or served late. Gleeson CJ said in State Pollution Control Commission v Australian Iron and Steel (1992) 29 NSWLR 487 at 494: “The flow of cases through the courts of this State is now managed by the judiciary and not left to be determined by the parties and their lawyers.” Gleeson CJ observed that a failure by the Prosecutor to comply with a direction for the filing of evidence afforded a discretion in the trial judge to exclude that evidence (at 492). “The power to give directions necessarily carries with it a power to refuse to countenance non-compliance” at 493. See also Bomanite Pty Ltd and Others v Slatex Corp Aust Pty Ltd and Others (1991) 104 ALR 165; Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010} QCA 260.

25. [25]
    The time and facilities of the Court are publicly funded resources. Inefficiencies by a party in the use of those resources are not matters that can or should be ignored: Aon Risk Services v ANY (2009) 239 CLR 175 at [5]. The competing claims by other litigants for that time and those facilities always form part of the context in which the discretion must be exercised. While court resources are finite, the number of litigants is ever increasing. The broader public interest in the efficient allocation of those resources among all suitors is a necessary consideration.

26. [26]
    The legislation, and the demands upon public resources which fund Courts, necessarily impose an expectation and an obligation upon a party that it will ensure that they act in their own best interests, or accept the consequences.

27. [27]
    Further, the objective of the Court is to do justice according to law (rule 23(1)) which includes the just and expeditious resolution of the real issues in dispute at a minimum of expense. Justice requires consideration of the prejudice caused to the other party and the Court. This includes the strain that the litigation imposes on litigants and witnesses.

28. [28]
    However the fact that, for example, an extension or amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave.

29. [29]
    If a party is unsure what to do there is much information available on the Courts website and other DV websites, community legal centres and legal aid to name a few.

30. [30]
    Parties do not need the Court’s permission to get legal advice or assistance. Lawyers can help parties collect and prepare evidence and documents, write submissions, and prepare for the hearing without needing the Court’s permission.

31. [31]
    L has had at least 5 weeks to collect and prepare evidence since the 10 March 2017.

32. [32]
    L filed an affidavit on 21 April 2017 although it does not provide any information in support of the application and appears to be the evidence in chief to be used at the hearing of those applications to vary.

33. [33]
    I take into account L has not followed the direction to file and serve an affidavit in support of the application.

34. [34]
    Such an affidavit should set out what active steps L has taken to comply with trial directions, what has caused the delay whether it be complexity of the issues e.g. there is comprehensive volume of medical reports and clinical notes concerning the matter, representation or difficulties in obtaining evidence and affidavits from witnesses, when did L become aware that L could not comply with trial directions, when will L be able to file and serve the affidavit/s and further show that any prejudice to the Respondent may have suffered because of the delay would not lead to injustice.

35. [35]
    Many applications are made to Courts which are plainly without foundation. If these applications are to be made in a bona fide way, then it is highly desirable that they should be supported by evidence either verbal evidence or evidence on affidavit. Unless that course is taken, the Courts to whom the applications are made are left with assertions being made one way and assertions being made the other way, and there is no real opportunity of having the matter properly tested by evidence properly authenticated and placed before the Court.

36. [36]
    The Court should not be seen to accede to applications made without adequate explanation or justification.

37. [37]
    L now seeks to withdraw the application.

38. [38]
    The application is dismissed.