Waj v CRA

Case [2021] QDC 85

DISTRICT COURT OF QUEENSLAND

CITATION:

WAJ v CRA [2021] QDC 85

PARTIES:

WAJ
(appellant)

v

CRA
(respondent)

FILE NO:

124/20

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court
Noosa

DELIVERED ON:

25 May 2021

DELIVERED AT:

Kingaroy

HEARING DATE:

30 April 2021

HEARD AT:

Maroochydore

JUDGE:

Cash QC DCJ

ORDER:

The appeal is dismissed.

LEGISLATION:

Domestic and Family Violence Protection Act 2012 (Qld), s 145, s 168, s 169

CASES:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386
HBY v WBI & Anor [2020] QDC 81, [16]-[18]
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, [31]
R v Spina [2012] QCA 179 at [32]
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 270, 279, 280

APPEARANCES:

Appellant in person
Respondent in person

Introduction

  1. On 19 June 2020 the respondent and the appellant appeared before a Magistrate at Noosa. The respondent, then represented by counsel and solicitor, sought a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’). The appellant, who was also then represented by counsel and solicitor, opposed the order. After hearing evidence the Magistrate found that the appellant had committed acts of domestic violence and made a protection order. The appellant is dissatisfied with this decision. He challenges the decision, asking for it to be set aside and the matter be remitted to the Magistrates Court for rehearing.

  2. Counsel who appeared for the appellant at the hearing before the Magistrate settled an outline of submissions, raising seven grounds of appeal. These grounds can be distilled to four:

    1.       The findings made by the Magistrate were not open on the evidence;

    2.       The Magistrate erred in taking into account allegations of domestic violence said to have occurred in New Zealand;

    3.       A fair-minded lay observer would reasonably apprehend the Magistrate did not bring an impartial mind to the resolution of the question to be decided; and

    4.       The reasons of the Magistrate were inadequate.

  3. At the hearing of the appeal, the appellant was no longer represented. He did not argue the grounds advanced in the outline filed on his behalf. Indeed, the appellant submitted that the Magistrate was correct to reach the decision he did on the material presented at the hearing. Instead, the appellant criticised the conduct of the hearing by his lawyers and claimed they had not presented relevant evidence. The appellant’s contention was that this evidence would demonstrate the respondent’s testimony should not be accepted.

  4. The respondent did not have the benefit of lawyers to respond to the appeal. She filed a short statement indicating her wish to see the protection order remain in place. The respondent also appeared in person at the hearing.

  5. Having reviewed the evidence at the hearing, the decision of the Magistrate, and the written and oral submissions of the appellant, I have…

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Waj v CRA [2021] QDC 85
Case
[2021] QDC 85
Decision Date

CaseChat Overview and Summary

In the case of Waj v CRA, the appellant sought to appeal the decision of the first respondent to grant a domestic violence protection order to the second respondent. The order was made under the Domestic and Family Violence Protection Act 2012 (Qld). The appellant challenged the decision on the basis of factual and legal errors. The court was required to determine whether the Magistrate’s decision contained any such errors and, if so, whether the appeal should be allowed. The court considered the evidence presented at the hearing, the decision of the Magistrate, and the submissions of the parties.

The court found that the appeal was governed by sections 168 and 169 of the Act, which provide that the appeal is a rehearing of the original decision on the existing evidence, unless the appellate court orders otherwise. The court may confirm, vary, set aside, or remit the decision. The court may also order fresh or further evidence to be heard, but only if there are good reasons to do so. The court noted that the appeal was not a hearing de novo, and that the safety and wellbeing of people affected by domestic violence were paramount.

The court concluded that the Magistrate’s decision was based on an assessment of the credibility of the parties and the evidence presented. The court found that the Magistrate had considered the evidence carefully and made findings that were supported by the evidence. The court did not find any factual or legal errors in the Magistrate’s decision. The court also found that there were no good reasons to order fresh or further evidence to be heard.

The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Having reviewed the evidence at the hearing, the decision of the Magistrate, and the written and oral submissions of the appellant, I have concluded the appeal must be dismissed. These are my reasons for reaching that conclusion.The application and evidence at the hearing It is appropriate to commence with a summary of the application and the evidence at the hearing. The respondent completed an application for a protection order under the DFVPA on 17 December 2019. She declared, in the present of a Justice of the Peace, that the information set out in the statement was true and correct to the best of her knowledge and belief. The respondent identified that she and the appellant had been in a relationship for eight years and that there were three children of the relationship. She described herself as a ‘stay at home mum’ who was financially dependent upon the appellant. The respondent asked for a temporary protection order to be made. Her reasons for such an order included allegations that in August 2019 she left the family home because the appellant accused her of having an affair, smashed her phone and shoved her against the wall. This was said to be a response to the respondent declining to sign passport applications for the children. She also alleged the appellant sent her abusive text messages and referred to her as a ‘slut’. In her grounds for seeking a protection order, the respondent set out the following:- Constant abusive text messages June 2019 – Nov 2019.- Not allowing me to FaceTime the children whilst they are with him Oct 2019 – Nov 2019.- Financial control. Separated and left in August. Has refused to put property on the market. Had to borrow money from friends.- Putting marijuana in a cigarette.- Telling my son he cannot call his mother and if he does [the appellant] will tell the police and his school teacher. [The son] is very scared of going to jail – Nov 2019.- Calling me names. Constant.- Smashing my phone. September 2019.- Going through my personal paperwork – constant since left.- No allowing [the son] to call me when he wants to – constant.- Calling me a slut. Dec 2019.- Degrading me in front of the children. Constant. The matter came to be listed for hearing in June 2020. Directions were given as to the filing of material. The respondent’s material was late. The appellant filed affidavits on 11 June and 18 June 2020. In his first affidavit, the appellant deposed that the allegations in the application were false and vexatious. He alleged they were a response to a complaint he made to police about the respondent driving unsafely with a child in the car. He devoted five paragraphs to complaints about the respondent’s non-compliance with the directions. The respondent specifically denied that he:a) Smashed the respondent’s phone and shoved her against the wall;b) Spiked her cigarette with marijuana;c) Sent her abusive text messagesd) Went through her papers; ore) Controlled her finances. The respondent filed an affidavit on 4 June 2020. In it she gave details of the relationship and children. She alleged that she left the appellant due to ongoing domestic violence and, after leaving, the relationship further deteriorated. In particular, the respondent alleged financial abuse arising from her dependency upon the appellant. She said she had only worked for brief periods in the relationship and primarily cared for the children. The respondent detailed what she said was financial abuse perpetrated by the appellant. This included denying her access to funds, only doling out amounts for household expenditure. She also alleged the appellant monitored her use of social media.

Decision

Reasons for decision

No other witnesses were called. While there had been reference to affidavits provided by the mother of the appellant and one by the mother of the respondent, both counsel indicated they did not require these witnesses for cross-examination. The affidavit of the appellant’s mother is discussed further below. The decision of the Magistrate The Magistrate first recited some uncontroversial facts. These were that the appellant and respondent were in a de facto relationship from 2011 until June 2019, when they separated but shared the same house until August 2019. At that time the respondent moved out. His Honour set out the three matters to be proved by the respondent before a protection order might be made. The first, that there was a relevant relationship, was not in dispute. The other matters to be proved were that the appellant had committed domestic violence and that the protection order was necessary or desirable to protect the respondent from domestic violence. His Honour referred to the extensive definition of ‘domestic violence’ in section 8 of the Act. As to the evidence of the appellant and respondent, the Magistrate said he generally preferred the evidence of the respondent as being accurate and reliable. The Magistrate was concerned by the appellant’s changing account of events when the respondent alleged he tried to get into her house in December 2019. The Magistrate thought the failure of the appellant to set out his version in the affidavit material or for it to be put to the respondent in cross-examination undermined his credibility. He concluded that the events took place in the manner described by the respondent and constituted domestic violence. In relation to the incident involving a phone, the Magistrate was satisfied that even on the appellant’s version he had committed an act of domestic violence. In any event, the Magistrate accepted the respondent’s account of this event and that it amounted to domestic violence. The Magistrate was not persuaded there had been behaviour that was ‘economically abusive’ so as to constitute domestic violence. He briefly referred to the alleged events in New Zealand. His Honour considered that he could have regard to these events, but did not appear to make any particular finding as to what occurred. The events in New Zealand do not appear to have influenced the Magistrate’s decision. There was also a brief reference to the affidavits of the mothers of the appellant and respondent. Again, the contents of the affidavits do not appear to have influenced the decision of the Magistrate to any significant degree. Based largely upon the finding about domestic violence in December 2019, the Magistrate was satisfied that a protection order was necessary or desirable for the protection of the respondent.The nature of the appeal – statutory framework and legal principles The nature of an appeal against the making of a domestic violence protection order was recently considered by Moynihan QC DCJ in HBY v WBI & Anor [2020] QDC 81. I agree with his Honour’s analysis at [16] to [18], which I set out below.[16] The power to appeal a relevant decision is found in s 164 of the Act. The appeal is started by filing a notice of appeal and the start of an appeal does not affect the operation of the decision unless there is a further order of the court: see s 165 and 166 of the Act. Section 168 of the Act provides that the ‘hearing procedures’ for the appeal are:“168 Hearing procedures(1)An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.(2)However, the appellate court may order that the appeal be heard afresh, in whole or part.”[17] Section 169 of the Act provides that the powers of the appellate court are:“169 Powers of appellate court(1)In deciding an appeal, the appellate court may—(a)confirm the decision appealed against; or(b)vary the decision appealed against; or(c)set aside the decision and substitute another decision; or(d)set aside the decision appealed against and remit the matter to the court that made the decision.(2)The decision of the appellate court upon an appeal shall be final and conclusive.”[18] An appeal under s 168(1) of the Act is by way of rehearing: see GKE v EUT [2014] QDC 248 at [2]-[3]; Jennifer Glover, Separate Representative v Director, Child Protection Litigation & Ors [2016] QChC 16 at [73]. The powers of the appellate court may be exercised only where the appellant can demonstrate that, having regard to all the evidence before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error: see Fox v Percy (2003) 214 CLR 118. Section 168(1) is subject to the broad discretion conferred by s 168(2) to order some or all of the evidence be heard afresh, or for further evidence to be relied on: see Glover at [76]. The exercise of the discretion under s 168(2) does not convert the rehearing into a hearing de novo: see Glover at [75] and FY v Department of Child Safety [2009] QCA 67 at [12]-[13]. The circumstances in which s 168(2) applies are not prescribed in the Act. However taking into account the words of s 168 as a whole, in the context of the surrounding provisions relating to the appeal and the Act as a whole including its main objects (see s 3), the interpretation that best achieves the purpose of the Act is that the discretion in s 168(2) is engaged when good reason is shown for there to be an exception made to the rule under s 168(1): see s 14A of the Acts Interpretation Act 1954 (Qld) and R v A2 (2019) 373 ALR 214. A determination as to whether there are good reasons is informed by the common law principles that may apply in a particular appeal, for example, those concerning the reception of fresh or new evidence as articulated in Ratten v The Queen (1974) 131 CLR 510 at 519 and the principles for administering the Act, which in this case include “that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.”: see s 4(1) of the Act.

Ratio Decidendi

Legal Principle Established

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