MIA v Kax
[2022] QDC 198
•17 August 2022
DISTRICT COURT OF QUEENSLAND
CITATION:
MIA v KAX [2022] QDC 198
PARTIES:
MIA
(Appellant)
v
KAX
(Respondent)
FILE NO:
1421/21
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
17 August 2022
DELIVERED AT:
Brisbane District Court
HEARING DATE:
17 August 2022
JUDGE:
Byrne QC DCJ
ORDERS:
1. The appeal is to be determined in the absence of the Appellant
2. The appeal is dismissed
CATCHWORDS:
APPEAL – PROCEDURE – SELF-REPRESENTED PARTIES – where a temporary protection order was made by the Magistrate -where the appellant is aggrieved by the failure to make an order for the recovery of property - where appellant given notice of date of hearing and fails to appear at the hearing – where appeal is listed for hearing 15 months after the making of the order – whether there is power to dismiss an appeal under the Domestic and Family Violence Protection Act 2012 for want of prosecution – where the appeal is also determined on the merits based on the material filed.
LEGISLATION:
Domestic and Family Violence Protection Act 2012 (Qld)
District Court of Queensland Act 1967 (Qld)
Supreme Court of Queensland Act 1991 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
CASES:
House v The King [1936] 55 CLR 499
McDonald v Queensland Police Service [2018] 2 Qd. R. 612
SOLICITORS: No appearance for the appellant
The respondent is self-represented.
These are ex tempore reasons in an appeal brought under the Domestic and Family Violence Protection Act. I have, earlier this morning, set out a history of events which occurred prior to the non-appearance of the appellant at today’s listed hearing. I have determined, in all the circumstances, the matter should proceed in her absence. She had notice of the hearing. She has not appeared and claims to be unwell, which claim does not immediately appeal as being made with bona fides. All filings have occurred in this appeal. The issue arises as to whether there is a power to dismiss an appeal under the Domestic and Family Violence Protection Act of 2012 (“the Act”) where the appellant fails to appear on the appointed day for the hearing of the appeal.
I conclude that there is a power, not only where, in the more obvious event, the appellant fails to file an outline or any other document required by practice direction, but also where the appellant fails to attend on the hearing of the appeal.
The starting proposition, in my view, is that the District Court is a court of limited jurisdiction. It may only exercise powers which are directly granted to it as well as any powers which are necessary for the exercise of the express powers. A power to strike out for want of prosecution may be desirable, but it is not necessary to give effect to the express power to hear the appeal. The alternative is to hear the matter on the merits in the absence of the personal appearance of the appellant. That is the course that I will ultimately take, but I do wish to make some observations about these powers first.
The powers of the Court on hearing an appeal under the Act are found at section 169, and do not include an express power to dismiss the appeal for want of prosecution. In that regard, comparison can be made with section 229 of the Justices Act 1886. However, section 169 does not expressly preclude striking out an appeal for want of prosecution and, in my view, there is an avenue by which that power exists.
Section 113 of the District Court of Queensland Act 1967 provides:
“The District Court has, for an appeal from a Magistrates Court, the same powers as the Court of Appeal to hear an appeal.”
That provision applies to an appeal under this Act. It directs attention to Uniform Civil Procedure Rules. Perhaps surprisingly, there is no express provision in the UCPRs that requires the appellant to attend on the day of hearing of the appeal.
Rule 775 of the UCPRs provides a power to dismiss an appeal for want of prosecution where an appellant fails to comply with any step required under the rules, or a practice direction. It might ordinarily be thought to be of assistance. In order to engage rule 775, resort must be had to the relevant practice direction which, in this instance, is Practice Direction number 7 of 2020. That practice direction provides for the filing of certain documents such as outlines of argument and a certificate of readiness within certain stipulated time frames and requires the Registrar to notify the parties of the hearing date for the appeal. But it does not expressly require the attendance of the appellant at the hearing. It therefore does not provide a pathway to the power to dismiss for want of prosecution. There is, however, another pathway.
As I have earlier noted, by section 113 of the District Court of Queensland Act 1967, this Court hearing an appeal has all the powers of the Court of Appeal. The Court of Appeal is a division of the Supreme Court of Queensland; see section 5 of Supreme Court of Queensland Act 1991. The Court of Appeal has all the powers of the former Full Court and can exercise any jurisdiction and power of the Supreme Court: see section 29 of the Supreme Court of Queensland Act of 1991. Although a power to strike out an appeal for want of prosecution is not expressly mentioned in that provision, it can be accepted that it exists as it expressly mentioned in another relevant legislative provision.
That provision is section 44(1)(b) of the Supreme Court of Queensland Act of 1991. By way of paraphrasing, it provides that a Judge of Appeal may exercise the powers of the Court of Appeal to dismiss an appeal or other proceeding for want of prosecution. In my view, it follows that the Court of Appeal and hence in these circumstances, the District Court on hearing an appeal has power to strike out an appeal brought under the Act for want of prosecution, notwithstanding the absence of an express provision to do so in the District Court of Queensland Act 1967. The Court may, in my view, exercise that jurisdiction, if otherwise appropriate, when the appellant fails to appear at the stipulated hearing date. In my view, it would be appropriate to exercise that jurisdiction here. Nonetheless, I will also consider the matter on the merits of what is before me.
The appellant appeals against the making of a temporary protection order made under section 44 of the Act. The order was made in the Caboolture Magistrates Court on 12 May 2021. Both the appellant and the respondent were legally represented at that time. The order was expressed as being made by consent and without admission. It contains a total of seven conditions, the terms of which are not important for the purposes of this decision.
The filed grounds of appeal refer directly to the decision of the Magistrate by reference to the date of the order and the relevant Magistrates Court file numbers. Otherwise, they are a little difficult to follow as the grounds of appeal refer to matters which are not the subject of that consent order. By reference to the written outline of submissions on behalf of the appellant, it can be ascertained that the central complaint, which is distributed across 11 grounds of appeal, is that the Magistrate did not grant what is termed a “personal property recovery order”, which order the appellant submits is authorised by sections 44, 48, 131, and 132 of the Act. In fact, it seems that the reference should have been to section 59 of the Act.
A person who is aggrieved by a decision to make a domestic violence order may appeal against the decision: see section 164(a) of the Act. The making of a domestic violence order includes the making of a protection order or a temporary protection order, and a person aggrieved by an order which does not make such an order may also appeal.
The appeal is to be decided on the evidence and proceedings before the Court below, unless the Court makes an order to the contrary: see section 168 of the Act. Therefore, this appeal is in the nature of an appeal by rehearing on the record: see McDonald v Queensland Police Service [2018] 2 Qd. R. 612 at [47].
Importantly for the purposes of this appeal, there is an onus on the appellant to show that there is some error in the decision under appeal: see McDonald v Queensland Police Service, ibid. As the making of a temporary protection order involves the exercise of a discretion, error of the kind explained in House v The King (1936) 55 CLR 499 at 505 must be demonstrated before the appeal can succeed. The last category in House v The King has sometimes been referred to as requiring satisfaction that no reasonable decision-maker could have made the decision under appeal. In the event that error is demonstrated, I must consider the whole of the material to determine whether the orders made are, nonetheless, justified. If not, I must make such orders as I see fit.
The powers of this Court in an appeal under the Act are found in section 169 of the Act. By section 169(2) the decision of the Court is final and conclusive.
The chronology of this litigation is a little complicated. On 7 May 2021, the appellant applied for a protection order in the Brisbane Magistrates Court. Amongst other things, it indicated a desire for the present appellant to “recover essential property” from a stated address. I will refer to this as the section 59 application. A temporary protection order was granted that day, which did not include an order under section 59. The matter was also adjourned to the Caboolture Magistrates Court on 12 May of 2021 to be heard together with a cross-application which had been filed in that Court by the present respondent against the present appellant.
On 11 May 2021, the appellant filed an application for variation of the temporary protection order made on 7 May 2021 in the Brisbane Magistrates Court. The variations sought, broadly speaking, were variations concerning issues around contact when picking up and dropping off children at schools, but it also again requested an order to facilitate the collection of property from a stated address. That is, it repeated the section 59 application. That application, having been physically filed in Brisbane, was forwarded to the Caboolture Magistrates Court to be dealt with the next day.
On 12 May 2021, both parties appeared, and each were legally represented. The Magistrate was informed by the legal representatives that there had been discussions between the parties, and after some elucidation of the parties’ respective positions, a draft order was handed to the Magistrate that reflected the agreed position. Broadly speaking, it sought to strike a workable balance around childrens’ drop off and pick-up arrangements at the school that all of the children attended, given that some children were living with one or the other parent. The draft order also incorporated amendments which were expressed to reflect the position obtained in some ongoing Family Court proceedings. The Magistrate made the order in terms of the agreed position. As I said earlier, it was expressed to be made by consent and without admissions.
I should also record that there was an oral application made to transfer the hearing of the application for the protection order to the Petrie Magistrates Court for the purposes of the convenience of the appellant. This application was not part of the filed written application, but was made orally. In my view, that is evidence that instructions had necessarily been given, separately to what was found in the written application, and indicates communication between the appellant and her legal representative. The application was refused, but there is no appeal from that refusal.
The notice of appeal instituting these proceedings was filed within time on 9 June 2021. The appellant’s outline of argument was filed on 28 July 2021. The respondent’s outline of argument was filed on 14 September 2021. It is not apparent on the face of the file as to why the matter has taken so long to come to hearing. An assertion has been made by the respondent today, in the absence of the appellant, to the effect that the appellant has continued to delay the hearing of these proceedings. I need not make any finding on that.
For reasons which will become clear, in my view, this appeal cannot succeed no matter what advocacy is applied to it. I should record that the appellant’s outline makes various references to the asserted urgency of the need for the so-called personal property recovery order.
Also, both outlines – that is, from the appellant and the respondent – contain allegation and counter-allegation as to occurrences of domestic violence, as well as the need or alternatively lack of need for an order for property recovery. This will be a matter, as will become apparent, that will be of interest to the Magistrate, but it is not to this Court.
It is unnecessary for me to consider the grounds of appeal individually. They all fail for the same reason. In order to succeed, the appellant must establish error in the process and proceedings involving the making of the order, or in the order itself. In the latter instance, it must be a decision which no reasonable decision maker could have made.
This order was an order made within power. The asserted error may be summarised as a lack of consideration of the section 59 application by the Magistrate. But the difficulty with that assertion is that that aspect of the various applications was, effectively, taken off the agenda by the appellant’s own legal representative seeking the orders by consent, which she did, and which did not include the section 59 application.
In circumstances where the appellant’s application for a protection order and the application for variation of the temporary protection order were clearly completed by the appellant personally – and I pause to note, I draw that conclusion from looking at the written document – and where I am prepared to assume the Magistrate was facing the usual busy list dealt with by Magistrates in places such as Caboolture, he was entitled, in my view, to rely on the assistance of legal representatives to have trimmed the issues to those truly in dispute for his determination.
That, it may be argued, it was not in fact trimmed properly does not now mean that he erred. The inability to show error on the part of the Magistrate means that the appeal must be dismissed.
It follows that the section 59 application contained in the application to vary the temporary protection order is no longer on foot. However, that part of the application to recover property that forms part of the original application for a protection order remains extant.
There is, therefore, in my view, no injustice in dealing with this appeal in the appellant’s absence, because that application remains on foot. If, after the long period it has taken to bring this matter on for hearing, the application under section 59 remains a matter of the asserted urgency that it presently apparently assumes, the appellant can either file a further application for variation of a temporary protection order, or she can press for the making of that part of the order on the next mention of the application, when the matter is before the Caboolture Magistrates Court.
For the reasons above, my orders are that the appeal is to be determined in the absence of the Appellant. Secondly, the appeal is dismissed.
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