RQM v PAK

Case [2023] QDC 53

DISTRICT COURT OF QUEENSLAND

CITATION:

RQM v PAK & Anor [2023] QDC 53

PARTIES:

RQM

(appellant)

v

PAK

(respondent)
FILE NO:

D2316/22

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Redcliffe

DELIVERED ON:

4 April 2023

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2023

JUDGE:

Kent KC, DCJ

ORDER:

1.   Appeal allowed;

2.   The protection order made in the Redcliffe Magistrates Court on 24 August 2022 is set aside;

3.   The application for a domestic violence order by PAK be remitted to the Redcliffe Magistrates Court for rehearing before a different magistrate.

4.   The matter to be mentioned in the Redcliffe Magistrates Court on 5 April 2023

CATCHWORDS:

APPEAL AND NEW TRIAL – Domestic violence – where appellant was a self-represented litigant – where a protection order was made against him - where the Magistrate at an initial hearing acted on his observations of the parties in court in preventing the appellant from cross-examining the aggrieved unless legally represented – whether the Magistrate’s conduct in the hearing was peremptory – where, after suggestions of bias by the appellant, the Magistrate adjourned the matter to allow the appellant to engage legal representation and for the resumed hearing to be before a different Magistrate – where the appellant did not obtain legal representation and was precluded from cross-examining the aggrieved by the presiding Magistrate at the second hearing – whether either Magistrate erred in prohibiting the appellant from personally cross-examining the aggrieved – whether the appellant was denied procedural fairness in opposing the initial Magistrate’s prohibition on him cross-examining the aggrieved – whether the conduct of the hearing of the application lacked procedural fairness – whether the second Magistrate was biased or had pre-judged the application

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld) ss 37, 78, 145, 150, 151, 168 and 169.

Justices Act1886 (Qld) ss 83A, 144, 147A.

Uniform Civil Procedure Rules 1999 (Qld) rr 765, 783, 785.

CASES:

AJC v Constable Kellie-Ann Gijsberten & Ors [2019] QDC 195

Allesch v Maunz (2000) 203 CLR 172

CAO v HAT [2014] QCA 61

Charisteas v Charisteas [2021] HCA 29

Coal & Allied Operations Pty Limited v AIRC (2000) 203 CLR 194

DMO v RPD [2009] QDC 92

Ebner v Official Trustee (2000) 205 CLR 337

Fox v Percy (2003) 214 CLR 118

GKE v EUT [2014] QDC 248

Mbuzi v Torcetti [2008] QCA 231

Moore-McQuillan v Police (1998) 196 LSJS 488 26

QKL v Queensland Police Service [2021] QDC 195

RIS v DOL & Anor [2021] QDC 154

Rowe v Kemper (2009)1 Qd R 247
COUNSEL:

Appellant self-represented
P Morreau for the respondent pro bono
SOLICITORS:

Appellant self-represented
Women’s Legal Service for the respondent pro bono

Background

  1. On 24 August 2022 in the Redcliffe Magistrates Court a protection order was made naming the respondent as the aggrieved, against the appellant (the protection order). The appellant challenges the making of the order on grounds which are summarised as contentions that the appellant, who was self-represented, was given an inadequate opportunity…

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AGLC
RQM v PAK [2023] QDC 53
Case
[2023] QDC 53
Decision Date

CaseChat Overview and Summary

This case involved an appeal by the appellant, RQM, against a domestic violence protection order made against him by a Magistrate in the Redcliffe Magistrates Court. The respondent, PAK, had applied for the order, which was subsequently granted. The appellant was a self-represented litigant who was prevented from cross-examining the respondent unless legally represented. The appeal sought to challenge the procedural fairness of the hearings, the Magistrates' conduct, and the possibility of bias. The appellant argued that the Magistrates had erred in prohibiting him from cross-examining the respondent and that he was denied procedural fairness in opposing the initial Magistrate's prohibition.

The court was required to decide several legal issues, including whether the Magistrates erred in prohibiting the appellant from personally cross-examining the respondent, whether the appellant was denied procedural fairness in opposing the initial Magistrate's prohibition on him cross-examining the respondent, and whether the conduct of the hearing of the application lacked procedural fairness. Additionally, the court had to determine whether the second Magistrate was biased or had pre-judged the application.

The court found that the appeal was in the nature of a rehearing, requiring a real review of the trial and the lower court's reasons. The court weighed the evidence, conflicting evidence, and drew its own conclusions, giving due deference and attaching a good deal of weight to the Magistrate's view. The court found that the appellant was denied procedural fairness in opposing the initial Magistrate's prohibition on him cross-examining the respondent. The court also found that the second Magistrate was not biased or had pre-judged the application.

The appeal was allowed, and the protection order made in the Redcliffe Magistrates Court on 24 August 2022 was set aside. The application for a domestic violence order by PAK was remitted to the Redcliffe Magistrates Court for rehearing before a different magistrate. The matter was to be mentioned in the Redcliffe Magistrates Court on 5 April 2023.

Orders

Orders of the court

1. Appeal allowed;

2. The protection order made in the Redcliffe Magistrates Court on 24 August 2022 is set aside;

3. The application for a domestic violence order by PAK be remitted to the Redcliffe Magistrates Court for rehearing before a different magistrate.

4. The matter to be mentioned in the Redcliffe Magistrates Court on 5 April 2023

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The nature of the appeal is by way of rehearing, rather than an appeal in the strict sense; see GKE v EUT.[3] In such an appeal, the powers of the appellate court are exercisable only when the appellant can demonstrate that, having regard to all of the evidence before the appellate court, the order that is the subject of the appeal is the result of a legal, factual or discretionary error.[4] The appeal requires a real review of the trial and the lower court’s reasons[5] and for this court’s own determination to be made of the relevant facts and issues from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[6] I am required, where the facts are in dispute, to review the evidence, weigh conflicting evidence, and draw my own conclusions.[7] However this appeal is in some ways more straightforward than those where the arguments do relate to factual differences; in this case the complained-of errors are said to be largely procedural.The decision[3][2014] QDC 248 at [3]. As there described, the reasoning path to this conclusion is a little convoluted, but it is reached via s 142 (2) of the Act and UCPR rr 783, 785 and 765(1). It would have been simpler, as in some legislation concerning a statutory right of appeal, for the position to have been made explicit in s 142(2), particularly where that section has been amended since GKE v EUT was decided; it changed to the present, simplified version in February 2015.[4]See eg Allesch v Maunz (2000) 203 CLR 172 at 180; Coal & Allied Operations Pty Limited v AIRC (2000) 203 CLR 194 at 203-4[5]Fox v Percy (2003) 214 CLR 118 at [25].[6]Rowe v Kemper (2009)1 Qd R 247 at 253, [3][7]Rowe v Kemper (supra) at [5]; Mbuzi v Torcetti [2008] QCA 231 at [17]First hearing date The original listed hearing date for the matter was 27 July 2022. The proceedings in court on that occasion occupied considerable time, however there was not a hearing of the matter as such. What occurred – sensibly, with respect - was an extensive discussion between the Magistrate, the appellant and the respondent’s legal representative, it seems largely with the intention of attempting to achieve a resolution. The respondent was applying for a domestic violence protection order, and at the same time was a respondent to a similar cross-application by the appellant. Early in the proceedings the respondent’s legal representative indicated that the respondent was open to an order being made against her, without admission;[8] that was confirmed on the second hearing day.[9][8]Transcript 1-10 l 20.[9]Transcript for the second day, confusingly also referred to in the document as T1, but for clarity in this judgement T2; T2-6 ll 5-10 The ensuing discussion on the first hearing day was an attempt by the Magistrate to reach a resolution of the outstanding matter of the respondent’s application for a protection order in her favour (as aggrieved) against the appellant. This did not eventually proceed to a hearing and the conclusion was that the matter was adjourned for hearing before a different Magistrate, to 24 August 2022.[10][10]T1-46.

Ratio Decidendi

Legal Principle Established

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