Bui v SNL

Case [2021] QDC 285

DISTRICT COURT OF QUEENSLAND

CITATION:

BUI v SNL & Anor [2021] QDC 285

PARTIES:

BUI

(appellant)

v

SNL
(first respondent)
and

SIE

(second respondent)

FILE NO:

12 of 2021 (Beenleigh)

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Beenleigh

DELIVERED ON:

19 November 2021

DELIVERED AT:

Beenleigh District Court

HEARING DATE:

8 November 2021

JUDGE:

Byrne QC DCJ

ORDERS:

1.   Application for extension of time within which to appeal granted.

2.   Application for leave to adduce further evidence is refused.

3.   Appeal allowed.

4.   The order of the Beenleigh Magistrates Court in issuing a Protection Order on 22 June 2020 is set aside.

5.   I order that the Temporary Protection Order granted 9 December 2019 in the Beenleigh Magistrates Court be amended, but only in so far as the second condition is now to be in the same terms as the second condition in the Temporary Protection Order granted on 17 December 2020 in the same Court.

6.   The first respondent to pay the appellant’s costs.

CATCHWORDS:

DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – where the appellant appeals against the making of a Protection Order (PO) on 22 June 2020 pursuant to section 37 of the Domestic and Family Violence Protection Act 2012 (DFVP Act) – where the PO was made for a period of five years and included an ouster condition – where a temporary protection order (TPO) was made prior to the making of the PO – where the appellant and second respondent (the aggrieved) each applied to vary the TPO by removal of the ouster condition and removal of the naming of the children – where the second respondent’s application included a sworn document that the complained of conduct did not occur - where neither application had been determined when the PO was made - whether the Magistrate’s decision to hear the matter in the appellant’s absence denied him procedural fairness – whether the Magistrate erred in making a final order against the appellant – whether the Magistrate erred in not adjourning the application – whether the Magistrate’s failure to have regard to the variation applications constitutes a material error justifying appellate interference

DOMESTIC AND FAMILY VIOLENCE – APPEAL – LEAVE TO ADDUCE FURTHER EVIDENCE – where the appellant seeks leave to adduce further evidence than that which was before the Magistrate pursuant to section 168(2) of the DFVP Act – whether there is good reason for there to be an exception made to the rule under section 168(1) of the DVFP Act – whether the further evidence meaningfully contributes to the granting of the appeal

DOMESTIC AND FAMILY VIOLENCE – APPLICATION – EXTENSION OF TIME – where the appellant seeks leave for an extension of time within which to appeal – whether the matter has prospects of success in circumstances where the substantive appeal is also before the Court

DOMESTIC AND FAMILY VIOLENCE – APPEAL – UTILITY OF DETERMINING APPEAL – where an amendment to the PO was granted on 17 December…

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Bui v SNL [2021] QDC 285
Case
[2021] QDC 285
Decision Date

CaseChat Overview and Summary

In Bui v SNL, the appellant, who was the respondent in the Magistrates Court, sought to appeal against a Protection Order made under the Domestic and Family Violence Protection Act 2012. The Protection Order was made on 22 June 2020, for a period of five years and included an ouster condition. A temporary protection order was previously made on 9 December 2019, and both the appellant and the aggrieved had applied to vary the temporary protection order by removing the ouster condition and the naming of the children. Neither application had been determined when the Protection Order was made. The appellant argued that the Magistrate’s decision to hear the matter in his absence denied him procedural fairness, that the Magistrate erred in making a final order against him, and that the Magistrate’s failure to have regard to the variation applications constitutes a material error justifying appellate interference.

The court found that there was no error in the Magistrate’s decision to hear the matter in the appellant’s absence as the Domestic and Family Violence Protection Act 2012 authorised the Magistrate to do so. The court also found that there was no error in not adjourning the hearing when there had been no application to adjourn before the Magistrate, and where the circumstances did not necessarily demand that consideration be expressly given to that. However, the court found that the failure to have regard to relevant material, specifically the sworn document from the aggrieved attesting to the fact that there had been no wrongful conduct on the part of the respondent, was an error justifying appellate interference.

The court allowed the appeal, set aside the order of the Beenleigh Magistrates Court in issuing a Protection Order on 22 June 2020, and ordered that the Temporary Protection Order granted on 9 December 2019 be amended to reflect the terms of the Temporary Protection Order granted on 17 December 2020. The first respondent was ordered to pay the appellant’s costs. The court also granted the appellant’s application for an extension of time within which to appeal but refused his application for leave to adduce further evidence.

Orders

Orders of the court

1. Application for extension of time within which to appeal granted.

2. Application for leave to adduce further evidence is refused.

3. Appeal allowed.

4. The order of the Beenleigh Magistrates Court in issuing a Protection Order on 22 June 2020 is set aside.

5. I order that the Temporary Protection Order granted 9 December 2019 in the Beenleigh Magistrates Court be amended, but only in so far as the second condition is now to be in the same terms as the second condition in the Temporary Protection Order granted on 17 December 2020 in the same Court.

6. The first respondent to pay the appellant’s costs.

Background

Background to the litigation

The powers of this Court in an appeal under the DFVP Act are found in section 169 of the DFVP Act. Under section 169(2), the decision of this Court is final and conclusive. The appellant also seeks to adduce further evidence for the purposes of the appeal.[11][11]Section 168(2) of the DFVP Act.Factual background In this judgment I will refer to the parties by their respective titles in the present appeal, so as to save confusion with the fact that the appellant in this appeal was the respondent below, and the second respondent to the appeal was the aggrieved below. On 6 December 2019 a Police Protection Notice was issued by the first respondent naming the appellant as the respondent and his partner as the aggrieved. Consequently, on 9 December 2019 a temporary protection order (“TPO”) was made, including the ouster order, and the matter was adjourned on a number of occasions, eventually to 22 June 2020. The appellant was present in Court when the matter was adjourned to that date. Further, the Magistrates Court file shows that a notice of the adjourned hearing date was posted to his address, stating that the hearing date was 22 June 2020. Both the appellant and second respondent had filed applications on 18 February 2020 for variation of the TPO. The two applications largely mirrored each other. The variation sought in each application involved the ouster order and the naming of the children. The second respondent’s application attached a handwritten affidavit which in effect denied that the complained of conduct in fact occurred. Each application specifically sought a variation of the ouster order as well as the removal of the naming of the children. Neither of these applications had been determined by the time the matter was heard on 22 June 2020. The appellant’s present recollection is that he engaged a solicitor from a particular law firm and told her that the next court date was sometime in June or July. He has attested that the solicitor told him that she would follow it up, and that he paid professional fees after that conference. He further attests he was under the impression that the solicitor would appear on his behalf and contact him if anything further was required.[12][12]Affidavit of the appellant dated 8 November 2021 at [11]-[13]. There is an email attached to the appellant’s affidavit which shows that the solicitor had understood that the adjourned hearing date was 6 July 2020, and that the appellant had told her that.[13] I accept that he told the solicitor this date. While it is not clear to me why he would have stated that date, it is unlikely that the solicitor would have diarised a date she had not been told. Further, it is highly unlikely that if the solicitor had contacted the Court she would have been told that date. I accept that the appellant had not informed the solicitor of the correct hearing date.[13]Affidavit of appellant dated 8 November 2021, Exhibit DMB-6. On 22 June 2020 the application was mentioned in the Magistrates Court at Beenleigh. There was no appearance on the appellant’s behalf.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The second respondent made no submissions other than to state that she supported the appeal.ConsiderationThe grounds of appeal. Of the two grounds of appeal, it is convenient to deal with the second first. That ground alleges that the exercise of the discretion under s 39(2) of the DFVP Act miscarried because of two particularised errors. In truth neither were errors. There can be no error in making the final order where the then respondent was not present, as that course is authorised by s 39 of the DFVP Act. It cannot be an error to exercise a discretion when there was no submission to the contrary, particularly in circumstances of a busy jurisdiction where the non-appearance of respondents is a regular feature. Secondly, there can be no error in not adjourning the hearing when there had been no application to adjourn before the Magistrate, and where the circumstances did not necessarily demand that consideration be expressly given to that. In each instance, there is no fault in the conduct of the Magistrate in those respects, and hence no error. Turning then to the first ground of appeal, I am not satisfied that the appellant has been denied natural justice, or procedural fairness, in the manner by which the hearing was conducted. There was express legislative authorisation to conduct the matter in his absence. The Magistrates Court file reveals that he had been given notice of every hearing date, even though he may not have communicated them clearly to his solicitor. Having been so notified, the onus was on him to ensure that he, or his legal representative, was present at the hearing. There can be no legitimate complaint of being denied procedural fairness. The first respondent submits that the reasons given for ordering the PO are inadequate. I am loath to criticise a Magistrate who, while presiding in an exceptionally busy jurisdiction, is confronted with the need to give reasons in an uncontested matter and who elects to use an economy of expression. However, the reasons here given amount to two words, when divorced from the almost equally sparse discussion in the course of submissions on the matter. It is clearly arguable here that the reasons given are inadequate, however it is unnecessary to consider whether that amounts to an error of law in the present circumstances because of a related issue. There were, at the time that the PO was ordered, two applications for variation on foot, one from each of the then aggrieved and respondent. One of those applications, from the aggrieved, included a sworn document attesting to the fact that there had been no wrongful conduct on the part of the respondent. That is obviously material to two of the considerations under section 37(1) of the DFVP Act. There is nothing to suggest that it was considered in the exercise of the discretion to make the PO. It need not have necessarily been accepted at face value, but it needed to be considered. The failure to have regard to relevant material is an error justifying appellate interference.[22] While this is not a ground of appeal pursued by the appellant, it was a matter tangentially raised in the written outline of submissions.[23] [22]House v The King, supra.[23]See paragraph 46 therein.The utility in determining the appeal