EW v RW

[2024] QDC 151

DISTRICT COURT OF QUEENSLAND

CITATION:

EW v RW [2024] QDC 151

PARTIES:

EW

(appellant)

v
RW

(respondent)

FILE NO/S:

BD1106/24

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 164 of the Domestic and Family Violence Protection Act 2012 (Qld)

ORIGINATING COURT:

Magistrates Court at Caboolture

DELIVERED ON:

18 September 2024.

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2024

JUDGES:

Smith AM DCJA

ORDER:

1.   I grant the appellant an extension of time to file his appeal.

2.   The appeal is allowed.

3.   The decision of the Magistrate is set aside.

4.   The matter is remitted to the Magistrates Court at Caboolture for hearing before a different Magistrate.

5.   I make no order as to costs.

CATCHWORDS:

FAMILY LAW – DOMESTIC AND FAMILY VIOLENCE – where the matter was listed for a directions hearing only – where the directions hearing date changed –  where notification of the new directions hearing date was sent to an address from which the appellant had been evicted – where the appellant did not receive notice of the new directions hearing date – where a final order was made in the absence of the appellant – where the Magistrate failed to consider whether the appellant had been notified of the new date or as to the matters set out in the Act – whether sufficient explanation for delay 

COUNSEL:

SOLICITORS:

Domestic Violence and Family Violence Protection Act 2012 (Qld) ss 37, 39, 41B, 45, 157A, 164, 165

International Finance v Crime Commissioner [2009] HCA 49; (2009) 240 CLR 319, applied

R v Tait [1998] QCA 304; [1999] 2 Qd R 667, applied

Self-represented appellant
Solicitors for the respondent

Self-represented appellant
Towns-Wilson Lawyers for the respondent

Introduction

1. This is an application for leave to appeal pursuant to section 165(5) of the Domestic and Family Violence Protection Act 2012 (“DFVP Act”).

2. The ground of the appeal is that the Magistrates Court erred in making a final protection order in favour of the respondent against the appellant when he was not present and further that the court failed to consider the requirements of the section when making the order.

   Background

3. On 3 April 2023 the respondent applied for a protection order pursuant to the DFVP Act. The respondent is the sister of the appellant.

4. The matter came before the Court on 3 April 2023 and a temporary protection order was made in favour of the respondent.  The matter was adjourned until 19 April 2023.

5. On 19 April 2023 the respondent was represented by solicitors and the appellant represented by solicitors.  The matter was adjourned for further mention on 10 May 2023.  A further temporary protection order was made. 

6. On 10 May 2023 the matter was mentioned once again with solicitors present.  The matter was adjourned for further mention on 31 May 2023. 

7. On 31 May 2023 the matter was mentioned again with solicitors present.  The matter was adjourned for further mention on 12 July 2023.  The temporary protection order continued.

8. On 12 July 2023 the matter was mentioned again with solicitors present.  The matter was adjourned for mention on 20 September 2023.  Directions were given that the respondent had to file and serve all affidavits by 25 August 2023 and the appellant by 15 September 2023.  Both parties were issued with a notice of adjournment advising that the mention date was 20 September 2023.  The appellant received that notice. 

9. On 7 August 2023 the respondent wrote to the Caboolture Court House requesting an extension for the filing of her affidavits and advising the Court of the email address of the appellant’s lawyers. 

10. On 17 August 2023 the matter was mentioned without either party being present in chambers and the mention date was changed from the September date to 23 August 2023 at 9.00 am for the purpose of determining whether the parties should be allowed more time to complete their affidavits.

11. On 18 August 2023 the Court wrote to the respondent advising her that the matter had been listed on 23 August 2023. 

12. Notices were issued to both the appellant and respondent noting that the mention on 23 August 2023 was to decide whether the parties should be given more time to complete affidavits.  It seems on the evidence though the appellant had been evicted from his address and this notice was not returned to sender or forwarded to him so he was never aware of the change of date from 20 September 2023 to 23 August 2023.

13. The matter came before the Magistrate on 23 August 2023.  Despite the matter only being listed for a mention the Magistrate made a final order against the appellant.

14. Having read the transcript no effort was made to determine whether or not the appellant had been served with notice of the changed dates.  No reasons were given for the decision. 

15. The appellant attended the Court on 20 September 2023 as he had been advised and updated his address and phone number.   

16. On 11 September 2023 he received a text message from the Queensland Police Service stating he had documents to pick up from his local station.  He attended on 11September 2023 and was told he had missed a Court date and a DVO had been made in his absence.

17. As a result, on 6 October 2023 the appellant wrote to the Caboolture Magistrates Court advising of the situation and requesting a reopening of the order. 

18. On 11 October 2023 the Court advised that the matter would not be reopened.  The appellant wrote back to the Court advising of the difficulties he has had and wanting to know if he could reopen the matter but was advised on 24 October that he could not.

19. On 12 December 2023 the appellant wrote to the Court wanting to know why he had not been contacted concerning the change of date and all the Court advised was that no “return to sender” mail had been received. 

    Submissions

20. The appellant in his outline submits that the order was decided in his absence.  A miscarriage of justice has occurred here.  At no stage was he advised of the hearing date and that it had been changed.  He submits that the effect of the order threatens his yellow card and blue card for employment.  The making of the order was not necessary nor desirable to prevent domestic violence.

21. The respondent submits that there is no explanation for the delay and there was no error in the decision of the magistrate. It is submitted it can be inferred the Magistrate had regard to the material in reaching his decision and it can be inferred he had regard to section 37 of the DFVP Act. It is submitted the application was filed some 8 months after the order had been made.’

22. It is submitted there was no power in the court to reopen the proceedings under section 157A of the DFVP Act.

    Discussion

    Factual findings

23. I firstly turn to the factual findings to be made. I note that under section 145 of the DFVP Act the court is not bound by the rules of evidence and may inform itself in any way it considers appropriate.

24. First, I find that the matter was listed for 20 September 2023 for a final directions hearing. Both parties were aware of this date and that it was listed for directions only.

25. Second, I find that as a result of the request by the respondent the date of the mention changed to 23 August 2023 for the purpose of deciding whether an extension of time should be granted concerning the filing of affidavits. 

26. Third, I find that on 18 August 2023 notices were sent to the appellant and the respondent who had been living at the same address.

27. Four, I find the appellant had been evicted from that address and therefore did not receive notice of the new date.

28. Five, I infer that the respondent knew the appellant did not receive the notice as she received hers and she would have seen that his notice was sent to the same address. It was not returned to sender.

29. Six, the appellant did not know of the new date.

30. Seven, I find the respondent did not tell her lawyers on or before 23 August 2023 that  the appellant had not received the notice from the court. If the court had been made aware of this it is unlikely the order would have been made. I note the solicitors for the respondent informed me that they were not made aware by the respondent that she had received his notice. 

31. Eight, I find that the appellant likely suffers from mental health issues. He informed me about this from the bar table. I find that he did his best to try and reopen the matter by sending letters to the court in October and December. He then drafted the appeal document in February and attended personally at the Registry and filed it in April. I accept his mental health difficulties have significantly contributed to the delay together with the fact he is self-represented.    

32. Another issue was raised during the hearing. The appellant informed me that he had filed an application for a protection order in the Redcliffe Magistrates court before the respondent filed hers. I note that the respondent did not disclose this in her application for a protection order filed in the Caboolture Magistrates Court. Without having heard from her I do not propose to make any finding in this regard, but if there was material non-disclosure that would be a serious matter.[1]  

    [1]Section 41B of the DFVP Act requires the parties to disclose cross applications.

    Delay

33. Section 165(4) of the DFVP Act requires that an appeal be filed within 28 days of the decision, however a court may grant an extension under section 165(5) of the DFVP Act.

34. In R v Tait[2] the Court of Appeal noted that in considering an extension the court will have regard to whether there is good reason for the delay and whether it is in the interests of justice to grant the extension. This may involve an assessment of whether the appeal seems to be a viable one.

    [2][1998] QCA 304; [1999] 2 Qd R 667 at [5].

35. I agree with the respondent that there is no affidavit explaining the delay but the appellant informed the court as to the reasons from the bar table. I accept this. I also accept that there are viable prospects of his succeeding in the appeal.

36. On the issue of prejudice to the respondent I note that she will have to pay the costs for a final hearing, but she would have had to pay those in any event. Also as I noted above she did not inform her lawyers that the appellant had not received the posted notice.   

37. In all of the circumstances I grant the extension as it is in the interests of justice to do so.           

    Errors

38. Contrary to the respondent’s submissions I consider a number of errors occurred in the conduct of this matter. 

39. Firstly, the date of the mention was changed without notification to the appellant. 

40. Secondly, the matter was listed for a mention only as to the filing of affidavits.  One does not know why it turned into a hearing concerning the final order.

41. Thirdly the Court gave no reasons for making the protection order. 

42. Section 37 of the DFVP Act sets out that to grant a protection order the Court needs to be satisfied that:

    1.   A relevant relationship exists between the aggrieved and the respondent.

    2.   The respondent has committed domestic violence against the aggrieved.

    3.   The protection order is necessary or desirable to protect the aggrieved from domestic violence.

43. The Court gave no consideration to any of those matters referred to in s 37 of the DFVP Act in reaching its decision. I do not accept the submission that it can be implied the magistrate had regard to the material. Indeed no submissions were called for by the Magistrate as to why the order should be made.

44. Section 39 of the DFVP Act provides that 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 he has been served with a copy of the application, the Court may hear and decide the application in the absence of the respondent or adjourn the application or issue a warrant.

45. In this particular case the matter was not listed for a final decision concerning the protection order[3]; the Court could not be satisfied the appellant had been served with notice of hearing and the Court did not hear and decide the application in accordance with the provisions of the DFVP Act.

    [3]Indeed the notice dated 18 August 2023 stated that it was a mention only concerning the application to extend the filing dates of the affidavits. 

46. In the result, I am satisfied the decision occurred as a result of legal and discretionary error.

47. Also as the matter was dealt with ex parte, a duty of good faith was placed on the respondent to disclose all relevant facts to the court. She knew that the appellant had not received the written notice. She should have told her lawyers this. The court should have been told this. As was said in International Finance v Crime Commissioner[4]  where an order is made ex parte without full disclosure of material matters, the order will invariably be set aside.   

    [4][2009] HCA 49; (2009) 240 CLR 319 at [133].

48. As to reopening the matter, section 157A of the DFVP Act provides:

    “157A Reopening particular proceedings decided in respondent’s absence

    (1)The respondent to an application to make or vary a protection order may apply to the court to reopen the proceeding for the application if—

    (a)the application was served on the respondent under a substituted service order; and

    (b)the application was not, and could not reasonably have been, brought to the respondent’s attention, despite being served in a way stated in the substituted service order; and

    (c)the respondent was not present in court when the application was heard and decided.

    (2)The respondent must make an application to reopen the proceeding within 28 days after the day on which the respondent became aware that the protection order the subject of the application had been made or varied.

    (3)The court may reopen the proceeding if the court is satisfied the grounds mentioned in subsection (1) are established.

    (4)If the proceeding is reopened and the respondent fails to appear before the court that is to rehear and decide the reopened proceeding, the respondent may only make another application under this section with the leave of the court.”

49. This section did not apply as there was no order for substituted service. Thus the only remedy for the appellant was to bring this appeal.

50. The respondent sought her costs. As I have found there was non-disclosure by her, I have decided to make no order as to costs.   

    Orders

51. In the circumstances for the reasons given, I make the following orders:

    1.   I grant the appellant an extension of time for the filing of the appeal.

    2.   The appeal is allowed.

    3.   The order of the Magistrate is set aside.

    4.   The matter is remitted to the Caboolture Magistrates Court for rehearing before a different Magistrate.

    5.   I make no order as to costs.