Aen v Queensland Police Service - [2022] QDC 27

DISTRICT COURT OF QUEENSLAND

CITATION:

AEN v Queensland Police Service & Anor [2022] QDC 27

PARTIES:

AEN

(appellant)

v
QUEENSLAND POLICE SERVICE

(first respondent)

AND

JEN

(second respondent)

FILE NO/S:

302 of 2021

DIVISION:

District Court

PROCEEDING:

Hearing of Appeal

ORIGINATING COURT:

Magistrates Court at Caboolture

DELIVERED ON:

21 February 2022

DELIVERED AT:

Brisbane

HEARING DATE:

30 November 2021

JUDGES:

McDonnell DCJ

ORDER:

The application for extension of time for leave to appeal is refused.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – PROTECTION ORDER – APPEAL – where appeal initiated under s 164 of the Domestic and Family Violence Protection Act 2012 – where applicant sought to adduce fresh evidence – whether appellant denied procedural fairness where initial hearing proceeded in their absence – whether time for the appellant to file a notice of appeal should be extended

LEGISLATION

Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 39, 51, 112, 164, 168, 169

CASES

Allesh v Maunz [2000] HCA 40; (2000) 203 CLR 172

Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296

Mbuzi v Torcetti [2008] QCA 231; (2008) 50 MVR 451

Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1

R v Tait [1999] 2 Qd R 667

SOLICITORS:

The appellant appeared in person
Queensland Police Service Legal Unit for the respondent

The second respondent appeared in person

Introduction

AEN seeks leave to appeal the decisions made on 16 July 2020 to make a protection order and on 3 August 2020 to vary that protection order. The appeal is brought under s 164 of the Domestic and Family Violence Protection Act 2012 (Qld) (the DFVP Act). AEN proposes revocation of the protection order. AEN is the respondent named in the protection order. JEN, the father of AEN and the aggrieved named in the protection order, supports the appeal. AEN’s mother is a named person in the protection order. She did not participate in the appeal.
Appeal
AEN filed a notice of appeal subject to leave on 8 February 2021. The notice sets out the grounds of appeal as follows:
“[AEN] appeals the protection order on the grounds that he had had a mental breakdown before being unlawfully stripped of his parental rights through the family court, and that [AEN] verbally consented to the protection order whilst incarcerated at PICU Caboolture in a venerable (sic) state. At no time of the breakdown was the parents of [AEN] present. [AENs] parents named on the protection strongly oppose this unnecessary privilege.” (de-identified)
An appeal under s 164 of the DFVP Act is available to a person who is aggrieved by a decision to make or vary a domestic violence order.
Such an appeal must be decided on the original evidence given in the substantive proceeding before the learned Magistrate.[1] This means that in general, the evidence relied on during the original proceeding before the learned Magistrate is the same evidence put before the District Court during an appeal.
[1]DFVP Act, s 168.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QDC 27
Decision Date: 21 February 2022

CaseChat Overview and Summary

The appeal by AEN against the decision of the Queensland Magistrates Court to vary a domestic violence protection order was dismissed. The appeal was brought under the Domestic and Family Violence Protection Act 2012. The appeal hinged on whether the appellant was denied procedural fairness when the initial hearing proceeded in their absence, and whether the time for the appellant to file a notice of appeal should be extended. The Court was required to consider whether there was good reason for the delay and whether it would be in the interests of justice to grant the extension. The Court also considered whether the fresh evidence sought to be adduced by the appellant was relevant and credible.

The Court found that the appellant was absent from the hearing due to their own choice and was served with the protection order by police the day after the hearing. The appellant was in court for the hearing of the application to vary the protection order but failed to file the notice of appeal within the required timeframe. The Court found that the appellant had not demonstrated good reason for the delay and that it would not be in the interests of justice to grant the extension. The Court also found that the fresh evidence sought to be adduced by the appellant was not relevant to the appeal. The application for extension of time for leave to appeal was therefore refused.

This case highlights the importance of timely and proper service of legal documents and the need for appellants to be present at their hearings. The Court found that the appellant had not demonstrated good reason for the delay in filing the notice of appeal and that it would not be in the interests of justice to grant the extension. The Court also found that the fresh evidence sought to be adduced by the appellant was not relevant to the appeal. These findings underscore the importance of ensuring that legal proceedings are conducted in a fair and efficient manner.

Orders

Orders of the court

The application for extension of time for leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The learned Magistrate varied the protection order by consent and without admissions, by the amendment of clause 3 to add “Except with the prior written consent of the aggrieved including by text message or email.” Fresh evidence AEN sought to adduce fresh evidence at this hearing. The Court may give leave to adduce fresh evidence if satisfied that there are special grounds. That is, the evidence is credible, it is material to the outcome of the appeal, and it could not have been obtained at the time of the original hearing. The proposed fresh evidence includes numerous transcripts of hearings, submissions and sentencing, QPS Court Briefs and witness statements regarding prior breaches by AEN of protection orders over the period 2017 to 2018, two medical reports from Dr Andie Hughes dated 25 August 2020 and 8 September 2021 and the Queensland Health Discharge Summary. From the material it is apparent that Dr Hughes is a consultant psychiatrist with whom AEN engaged and who prepared these two reports following consultation with AEN. The Queensland Health Discharge Summary from the Caboolture Hospital deals with AEN’s admission to the Psychiatric Intensive Care Unit of that hospital on 13 July 2020, his treatment, and his discharge on 16 July 2020. The authors of these reports were not called to give evidence and they were not made available for cross examination. The reliance placed on some of this fresh evidence by AEN is not clear. On the material before me, the documents regarding AEN’s prior breaches of protection orders are not relevant to my consideration. I accept that the reports of Dr Hughes and the Queensland Health Discharge Summary could not have been obtained at the time of the original hearing and are apparently credible. Having regard to AEN’s ground of appeal, I allow Dr Hughes two reports and the Queensland Health Discharge Summary for the limited purpose of the consideration of the application for extension of time. Extension of time for filing notice of appeal A notice of appeal must be filed within 28 days of the making of the decision, or if made in the absence of AEN, the earlier of: The day on which a copy of the decision is served on AEN; or The day on which a police officer tells AEN about the existence of the decision.[6][6]DFVP Act s 165(4). While absent from the 16 July 2020 hearing, AEN was served with the protection order by police on 17 July 2020.[7] AEN was in court for the hearing of the application to vary the protection order on 3 August 2020. Appeals from these decisions were due on 14 August 2020 and 31 August 2020 respectively. [7]Statement of Police Service affirmed 17 July 2020. Thus, the notice of appeal was filed out of time and AEN requires leave to extend the period for the filing of the notice of appeal. In the exercise of the Court’s discretion, it will consider whether there is good reason for the delay and whether it would be in the interests of justice to grant the extension. Factors relevant to this second consideration include the appeal’s prospect of success, prejudice to the respondent and the length of the delay.[8] [8]R v Tait [1999] 2 Qd R 667, 668 [5].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AEN v Queensland Police Service & Anor [2022] QDC 27
PARTIES:	AEN (appellant) v QUEENSLAND POLICE SERVICE (first respondent) AND JEN (second respondent)
FILE NO/S:	302 of 2021
DIVISION:	District Court
PROCEEDING:	Hearing of Appeal
ORIGINATING COURT:	Magistrates Court at Caboolture
DELIVERED ON:	21 February 2022
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2021
JUDGES:	McDonnell DCJ
ORDER:	The application for extension of time for leave to appeal is refused.
CATCHWORDS:	DOMESTIC AND FAMILY VIOLENCE LAW – PROTECTION ORDER – APPEAL – where appeal initiated under s 164 of the Domestic and Family Violence Protection Act 2012 – where applicant sought to adduce fresh evidence – whether appellant denied procedural fairness where initial hearing proceeded in their absence – whether time for the appellant to file a notice of appeal should be extended
LEGISLATION	Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 39, 51, 112, 164, 168, 169
CASES	Allesh v Maunz [2000] HCA 40; (2000) 203 CLR 172 Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296 Mbuzi v Torcetti [2008] QCA 231; (2008) 50 MVR 451 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 R v Tait [1999] 2 Qd R 667
SOLICITORS:	The appellant appeared in person Queensland Police Service Legal Unit for the respondent The second respondent appeared in person