Self v McIntyre & Peacock
[1998] QSC 307
•26 June 1998
IN THE SUPREME COURT
OF QUEENSLAND No. 31 OF 1998
CAIRNS
[Self v McIntyre & Peacock]
BETWEEN: LISA MARIE SELF
Applicant
AND: G.M. McINTYRE S.M.
First Respondent
AND: JOHN WILLIAM PEACOCK
Second Respondent
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE JONES
DELIVERED THE SIXTEENTH DAY OF DECEMBER, 1998
This is an application for a review by a prerogative order to set aside the orders made by Mr. McIntyre, Stipendiary Magistrate, at Innisfail on 4 August, 1998.
The Facts
The background narrative commences on 27 September, 1995 when Mr. McIntyre then at Longreach, on the application of Jane Gwynneth Millikin, made a domestic violence order pursuant to s.20 of the Domestic Violence (Family Protection) Act 1989 ("DVA") against the second respondent John William Peacock. In making that order the learned Stipendiary Magistrate deleted from the pro forma order the standard provisions that the respondent not possess any weapon and that weapons licences be revoked.
This pro forma order was relied upon by the court staff for the preparation of the formal order which ultimately was signed by the first respondent. The provisions of s.23 of the DVA require revocation of all weapons licences unless an order pursuant to s.28 of the DVA is made. In the absence of any such order being made, the formal order, even though it did not include the usual reference to revocation of the weapons licence, has the effect of so doing. Section 25 of the DVA relevantly provides:-
"(1)If a court was to have exercised a power under s.22 or s.23 and did not do so, the court is taken to have done so."
The resulting effect of the formal order in the form in which it was promulgated was that any weapons licence held by the second respondent was revoked upon the making of the order.
Further, the provisions of s.27 of the DVA applied as follows:-
“(1)This section applies to a respondent spouse other than a spouse whose weapons licence continues in force under s.28.
(2)The respondent spouse may not obtain a weapons licence.
(3)A weapons licence of the respondent spouse may not be renewed.
(4)The weapons licence obtained or renewed during the period of revocation or suspension is invalid.”
A perusal of the Magistrates Court record shows that the second respondent, in fact, made an application pursuant to s.28 of the DVA. That application was supported by his affidavit which revealed that, though employed as a porter with Queensland Rail, he earned substantial income from kangaroo shooting. If deprived of that income he would have difficulty meeting his liabilities.
Section 28 of the DVA provides as follows:-
(1)This section applies only if the court is satisfied that -
(a)the respondent spouse has never used a weapon, and has never threatened to use a weapon, when committing an act of domestic violence or associated domestic violence; and
(b)the application of s.23 would deprive the respondent spouse of the means of earning a livelihood.
(2)Instead of making an order under s.23, the court may make an order that -
(a)allows the respondent’s spouse weapons licence to continue in force; or
(b)does not apply the Weapons Act 1990 to the respondent spouse.
(3)An order under ss.(2) must impose conditions that provide the most restricted opportunity for access to weapons by the respondent spouse while allowing the spouse to earn a livelihood
(4)The court may only make the order if -
(a)the respondent spouse applies for the order as part of the proceedings to decide whether or not to make or vary a domestic violence order; and
(b)there is corroborative evidence that the application of s.23 to the respondent spouse would deprive the respondent spouse of the means of earning a livelihood.
(5)If the court makes an order under this section, s.23 does apply to the respondent’s spouse.”
In an appeal against a refusal to grant a weapons licence, which will be referred to later, McGill DCJ examined the manner in which the s.28 application was dealt with by the first respondent. His Honour said [1] :-
“In the present application was an allegation of a threat to shoot the agreed spouse’s dog. Domestic violence is defined in s.11(1)(b) to include wilful damage to the spouse’s property, so that such a statement would be a threat to commit an act of domestic violence, which is itself an act of domestic violence. The magistrate hearing the application could only have been satisfied (on the balance of probabilities - s.9) as required by s.28(1)(a) if, having informed himself in such a manner as he thought fit unless (s.84(2)), he was satisfied that this incident had not occurred. There was evidence before him in the affidavit upon which he could have been satisfied that the application of s.23 would deprive the appellant of the means of earning a livelihood. There had to be corroborative evidence of this, that is to say some independent evidence which is supported in the material particular by the appellant’s allegation: R -v- Bryce (1994) 1 Qd.R 77; R -v- Major (C.A. 438/96, 2.5.97, unreported). Nothing of this appears from the file, but there may well have been such evidence; there is no record of what transpired before the Magistrate, or what material was placed before him upon which he could have been satisfied of anything. It is clear that the appellant did ask to be allowed to retain his weapons licence as part of the proceedings to decide whether or not to make a domestic violence order. This was, in substance, an application for an order under s.28. It is not at all clear what conditions would have satisfied the requirements of ss.(3), or one that occurs to me is that the respondent spouse not have any weapons other than such weapons as the magistrate was satisfied were necessary to allow him to earn a livelihood.”
[1] Reasons for Judgment of McGill DCJ at p.3
Even if the first defendant had wished to make an order pursuant to s.28 of DVA, it is not clear to me that he could have validly done so. In the end result he simply did not determine the application.
The domestic violence order continued in force until 26 September, 1997 and with it the revocation of the second respondent’s weapons licence.
Subsequent to this date the second respondent applied for a renewal of his shooter licence. This was refused by the authorised officer because the terms of s.10(6)(b) of the Weapons Act (1997) provided that a person is not a fit and proper person to hold a licence if, within the preceding 5 years, a domestic violence order other than a temporary protection order has been made against the person.
On being so refused, the second respondent appealed to the Magistrates Court pursuant to s.142 of The Weapons Act but this appeal was refused. The second respondent then appealed against the Magistrate's decision to the District Court but again he was unsuccessful for the reasons delivered by McGill DCJ on 20 May, 1998.
The application to the first respondent which gave rise to the review now sought, appears to have been made on 25 June, 1998 by letter from the second respondent's solicitors, Kevin O'Hanlon and Associates.
On 14 July, 1998 the first respondent, purporting to act pursuant to s.142A of the Justices Act, determined that his original decision in making the domestic violence order was an error of law and he then adjourned the further hearing of the application to allow the parties interested to be heard.
On 4 August, 1998 the first respondent, still purporting to act pursuant to s.147A of The Justice Act, determined that the domestic violence order he made was "not in conformity with the law". He thereupon purported to vary the order because it was not expressed in accordance with his intention at that time because he was not then aware of the requirement that an order pursuant to s.28 of the DVA had to be drawn up in express terms. The first respondent then purported to vary the original order by adding the following:-
"I further order, pursuant to sect.28(2):-
1.that the respondent's spouse weapons licence continue in force."
The first respondent, in expressing his reasons for allowing the application, borrowed from the three possible explanations referred to by McGill DCJ in his analysis of what happened at the initial hearing. His Honour said:-
"It is clear from the document on the file that the magistrate deliberately intended not to make the orders required by s.23(2) and (3), since these parts of the pro forma order were crossed out and initialled. In these circumstances the absence of an order under s.28 in the formal order is, I think, susceptible of three explanations:
A.The magistrate expressed an order under s.28 orally in court, but because no reference was made to this part of his order on the pro forma order which he signed, it was not incorporated into the formal order prepared in the registry.
B.The magistrate made an order under s.28 which was drawn up in a separate document.
C.The magistrate erred in applying the Act, and failed to appreciate that it was necessary to make an order under s.28 in order to avoid the necessity of making an order under s.23(2) and (3)." [2]
[2] See p.7 of His Honour's reasons.
The first respondent adopted explanation C as being the operative cause of his error.
The Review
The applicant before me identifies two bases upon which that decision is reviewable, they are:-
"1.The learned Stipendiary Magistrate had no jurisdiction to reopen the proceedings pursuant to s.147A of the Justice Act;
2.The learned Stipendiary Magistrate erred in law directing himself as to the requirements of the provisions of the DVA"
Want of Jurisdiction
The applicant contends that the first respondent could not rely upon s.147A of the Justices Act which relevantly provides as follows:-
"(2)Where justices record a conviction or make an order that is based on or contains an error of fact, those justices or any other justices may, on the application of a party to the proceedings or a clerk of the court reopen the proceedings and after giving the parties an opportunity of being heard, set aside the conviction or vacate or vary the order in either case to conform with the facts...
(5)An application pursuant to subsection (2) shall be made within 28 days after the date of the conviction or order or such further time as the justices allow upon application made at any time on their behalf."
The applicant argues that firstly the application to rectify was not made within time and there was no application to extend time; secondly, the section relates only to situations where the order was based on an error of fact, whereas here the first respondent's error, as he acknowledges, was one of law.
In support of these arguments I was referred to passages from the decision of The High Court in Craig -v- South Australia [3] where (at p.177) the following appears:-
"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based on a mistaken assumption or denial of jurisdiction or misconception or disregard of the nature of or limits of jurisdiction."
[3](1994-5) 184 C.L.R. 163
The first respondent has fallen into error in entertaining this application to correct his order. In his reasons he stated "I also note from sect.147A, that there is no time limit for making an order to rectify the mistake that I have made". Contrary to his belief, as I have set out above, there was a time limit which had expired and it appears that there was no hearing and determination on the issue of whether further time should be allowed. In R -v- Williams exp. Biggs, [4] Andrews CJ said (at 600):-
"On the evidence as to what took place before (the stipendiary magistrate), it does not emerge that consideration was given to the requirement to make such an application within 28 days after the date of the convictional order or for such further time as allowed upon the application made at anytime in that behalf. It appears that Mr. Williams S.M. did not entertain an application to allow the subject application to be brought out of time."
[4] (1989) 1 Qd.R 594
In the circumstances the court came to the view that the first respondent there acted in excess of jurisdiction and issued a writ of prohibition against his further proceeding with the case.
In the present circumstances the first respondent had no jurisdiction to embark upon a review of his earlier decision without first addressing the question of the time within which the application should be made.
In his reasons the first respondent sought to found his jurisdiction in the alternative on s.188(1) of the Penalties & Sentences Act. That section, which I will not set out in detail, applies only to criminal proceedings. The making of domestic violence order is clearly not such a proceeding and that section does not found a jurisdiction for the first respondent to act the way in which he did. The making of a domestic violence order is in the nature of a civil proceeding rather than a criminal one. The actual making of the order carries no penalty but rather it prescribes certain behaviour which will attract a condition being imposed on future conduct. By s.9 of the DVA the standard of proof required is on the balance of probabilities. It is only the infringement or breach of a domestic violence order which attracts a penalty which would properly be classified as a criminal proceeding.
In my view, to whatever extent, the first respondent relied on s.188(1) of the Penalties & Sentences Act to found his jurisdiction, he was in error in so doing.
On behalf of the second respondent it was argued that quite apart from the express provisions of s.147A the first respondent had an inherent jurisdiction to rectify his order. Reliance was placed on remarks of the majority of the High Court (Griffith CJ and Barton J) in Ivanhoe Gold Corporation Ltd. -v- Simonds [5]. Griffith CJ referred to remarks of Lord Penzance in Laurie -v- Lees [6] and in particular to the words of Lord Watson in Hutton -v- Harris [7] where an accidental omission was corrected after the lapse of 40 years. Lord Watson said (at 560):-
"When an error of that kind has been committed, it is always within the competency of the court, if nothing has intervened which render it inexpedient or inequitable to do so, to correct the record in order to bring into harmony with the order which the judge obviously meant to pronounce. The correction ought to be made upon motion to that effect, and is not a matter either for appeal or for reviewing."
[5] (1906) 4 CLR 642
[6] 7 App. Cas. 19/34
[7] (1892) AC 547
In his dissenting judgment Higgins J took a more narrow view of what is understood by the slip rule. He said (at p.669):-
"But this rule does not, in my opinion, apply to this case. The learned judged deliberately came to the conclusion that there was an agreement between the parties which deprived the plaintiff of all rights of action for the injury; and I do not think that this court, though wide are its powers, should take upon itself to say that there has been an error in the judgment arising from any accidental slip or omission. If there was an error, it was not accidental: it was the result of a deliberate finding; and the judge intended the judgment to be in the form in which it now stands. In one sense, it is true that all mistakes of a judge are "accidental"; but that is not the sense in which the word is used in the bill. If it were, no-one could feel any confidence in acting on the formal, written judgment of the court. If the judge had made a mistake in his decision, the remedy is appeal; and if no appeal be brought, or if the appeal be dismissed, the litigants are bound by the decision even though wrong."
In this case an application pursuant to s.28 of the DVA is a matter of separate consideration to the domestic violence order. It is in a sense a separate judicial exercise even though it must be heard as part of the proceedings in which the domestic violence order is made (s.28(4)). In this case the first respondent simply failed to determine the application made by the second respondent. Had he determined in favour of the second respondent's application then it would have been open to Miss Millikin to lodge an appeal if she was so advised. Had he determined the application against the second respondent then an appeal would have lain at his suit pursuant to s.63 of the DVA.
The order which the first respondent did make has now run its course. There is no longer any proceedings and no longer any order which remains to be varied nor, in respect of which, can there be shown any accidental slip or omission.
The first respondent before me had no resort, either to s.147A or to the inherent jurisdiction of the court, to amend an order which has never been pronounced.
I therefore order that the order made by the first respondent at Innisfail on 4 August 1998 namely- that the respondent spouse weapons licence continue in force - be set aside.
I further order that the respondents pay the applicant's costs of and incidental to the application.
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