ACS v RPS [2022] QMC 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: ACS v RPS [2022] QMC 1 PARTIES: ACS (Respondent/Applicant) v RPS (Applicant/Respondent) FILE NO/S: MAG-00046599/22 DIVISION: Magistrates Courts PROCEEDING: Domestic Violence ORIGINATING COURT: Ipswich DELIVERED ON: 29 July 2022 DELIVERED AT: Ipswich HEARING DATE: 4 July 2022 MAGISTRATE: D Shepherd ORDER: Application refused CATCHWORDS: Domestic and Family Violence Protect Act 2012- Domestic violence protection orders – re-opening – relevance of implied powers – finality of proceedings. Domestic and Family Violence Protection Act 2012 sections 23(4), 39, 142, 143, 164-169. Justices Act 1886 sections 142A, 147A. SOLICITORS: Mr Fitzgerald, solicitor, for ACS. Mr Baker, solicitor, for RPS. [1] ACS applied for a domestic violence protection order by a written application sworn and filed in the Ipswich Magistrates Court on 23 March 2022. [2] That matter was first mentioned in court on 24 March 2022 in the absence of RPS. He had not been served at that time. A temporary order was made on that day. [3] The matter was next mentioned on 5 April 2022. RPS had still not been served and was not present on that day. -- 1 of 8 -- 2 [4] The matter was adjourned to 17 May 2022 with the temporary protection order to continue. [5] A statement of service by a police officer was filed in the court on 27 April 2022 attesting to personal service of various documents on RPS on 21 April 2022 at the Sydney Airport. Those documents included the initiating application, the temporary protection order and a notice of adjournment. [6] The notice of adjournment advising of the next court date on 17 May 2022 at 9:00 am contains the words “If you fail to appear in Court on this day, a domestic violence order may be made in your absence or the Court may issue a warrant for your arrest to be taken into custody by a Police Officer.” [7] On 17 May 2022 ACS did not appear personally but was represented by her solicitor, Mr Fitzgerald. The endorsement on the court file notes that at 9:40 am RPS had not appeared. A final order was made. The terms of that final order were slightly different to the temporary order but not obviously to the disadvantage of RPS. A prohibition against following or approaching ACS was not included in the final order and certain exceptions facilitating conferences, counselling or mediation sessions were added to a contact prohibition. [8] Later that same day 17 May 2022 RPS swore and filed an application to vary the order made earlier. That application, which was accompanied by a hand-written letter, sought to have the final protection order set aside and the matter [the application by ACS] set down for trial. The basis for this application was that the court had not been advised of his attempts to earlier contact the court to explain that he was running late and in fact had arrived at the court shortly after the order was made. [9] As an ‘application to vary’ it had to be served on ACS and the matter was set for mention on 4 July 2022. RPS was advised of this by email after speaking to an officer of the court registry. It appears the variation application was, in error served on RPS and not ACS however when the matter came on for mention on 4 July 2022 her solicitor Mr Fitzgerald admitted service on her. She did not appear. [10] On 4 July 2022 RPS, who was also not in attendance because he was in hospital, was represented by a solicitor, Mr Barker. Mr Barker provided to the court an affidavit from himself explaining his contact with his client about the non-attendance at the appointed time on 17 May. Mr Barker also provided to the court an outline of submissions seeking to have the application by ACS for a protection order re-opened. [11] In the circumstances the application to ‘vary’ along with the accompanying documents is treated as an application to re-open. The matter was adjourned and each of the parties were invited to provide any further material or supplementary written submission by a specific date. Both did so. [12] The material relied on by RPS revealed the following: (a) He was served at the Sydney airport on arrival back from overseas, (b) He did not live full time in Qld, (c) He had a conference in Sydney with his family lawyer the day before and had intended to appear and have the application by ACS set down for a trial, -- 2 of 8 -- 3 (d) He said he was made aware of traffic and delays caused by weather (he describes that in his hand-written letter as floods and rain) and as a consequence rang the Ipswich and Brisbane magistrates courts to advise he would be delayed by about an hour or 45 minutes, (e) He says he made 6 calls between 8 am and 9.09 am and then claims to have arrived at court at 9:38 am. He eventually spoke to court staff who advised him the matter had been dealt with, (f) Later in the day a staff member from the registry of the Brisbane magistrates court confirmed by email to the Ipswich registry that (1) RPS rang the Brisbane registry earlier that morning claiming not to be able to get through to the Ipswich registry, (2) that he had arrived at the Ipswich just after 9:40am and his matter had already been heard and (3) that he requested an email confirming he had phoned. (g) Mr Barker’s affidavit indicates that on 17 May 2022 RPS telephoned him at about 9 am and advised he was running late and had attempted to contact the Ipswich court but could not get through, (h) Mr Barker also states that at around 9:30 am RPS again telephoned him and advised he (RPS) had called the Brisbane registry to ask them to convey a message to the Ipswich court that he was running late, and that by the time he arrived at court the matter had been dealt with in his absence. [13] The written submissions by Mr Fitzgerald seek to cast doubts on the claim by RPS that his delay was due, in part, to weather conditions. Attached to that submission were some printouts from the Bureau of Meteorology indicating there were no significantly adverse weather conditions around Ipswich at the time. It was also noted that one of the residential addresses provided by RPS include a residence at Moggill, not an inordinate distance from Ipswich. He submits the delay of RPS in getting to court was of his own making. [14] Mr Barker’s additional submissions asserted that the unexpectedly heavy traffic was beyond the control of RPS and again stressed the efforts made by RPS to contact the court. [15] Apart from some differences in times (matter of minutes) I accept that RPS made efforts to advise the court that he was running late. There is no evidence that the court which made the order was informed of those efforts. However, the only explanation offered in any of the material for that tardiness is traffic and weather conditions. There has been no elaboration on that at all. Even if there were traffic delays (whether caused by weather conditions or something else) they are a normal part of everyday life and should reasonably have been foreseen as a cause of possible delays in travel. [16] The fact is that RPS was not at court at the appointed time nor when the order was made. There is nothing upon which it can be concluded that this failure to appear was not his fault or was beyond his control. [17] The application as it now is raises two primary questions; first, does the court have power to re-open proceedings involving an application for a domestic violence -- 3 of 8 -- 4 protection order, and second, if it does should it be exercised in favour of RPS in these circumstances. [18] Such questions arise in circumstances where the application to vary by RPS is, in reality, a challenge to the making of the order in his absence. Sections 23(4) and 39 of the DV Act contemplate and permit the making of a domestic violence protection order even though the person against whom that order has been made did not appear but had been served with a copy of the application. Section 164 of the DV Act expressly provides that a challenge to the making of a protection order may be brought as an appeal to a higher court. Power to re-open domestic violence matters [19] The Magistrates Court has no inherent jurisdiction but does have implied powers but only to the extent necessary to give effect to the jurisdiction conferred on the court by legislation.1 [20] In Power v Heyward [2007] QSC 026 Byrne J held at [16], “A Magistrates Court has, by implication, the powers reasonably necessary to enable it to act effectively within its jurisdiction. The more important of these are “subject to the rules of court and to statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures” and to prevent an abuse of its process. Moreover, a court may exercise its… implied powers… even in respect of matters that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision.” [21] In Taylor v Taylor (1979) 143 CLR 1, Mason J noted “Although the Family Court is a court created by statute it none the less possesses an inherent jurisdiction to set aside a judgment obtained by default. Three members of this Court (Latham C.J., Rich and Williams JJ.) concluded in Cameron v. Cole that the Federal Court of Bankruptcy had an inherent jurisdiction to set aside its orders, notwithstanding that it was a statutory court and, further, that it was a court of limited jurisdiction. A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party (Craig v. Kanssen) but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part. [22] Mason J also stated “What s. 79A (1) [of the Family Law Act]2 does is to give the court a discretion to set aside an order when it has been obtained by false evidence. In such a case the court will be extremely reluctant to exercise its discretion in favour of setting aside the order unless something more appears than that false evidence has been given and has procured the making of the order. The importance of bringing an end to litigation and the evil of allowing cases to be retried on the same evidence are powerful deterrents against setting aside a judgment whenever it appears that it has been obtained by false evidence without more. Where, however, more appears, as, for example, that the judgment was obtained ex parte without the benefit of the evidence to be given by one of the parties, then the court will the more readily exercise its 1 Theiss Pty Ltd v Industrial Magistrate Elizabeth Hall & ors [2013] QSC 130 at para 23; Grassby v R (1989) 168 CLR 1. 2 Italics added. -- 4 of 8 -- 5 discretion in favour of setting aside the judgment. Then the setting aside of the judgment will not result in a retrial on the same evidence but in a trial on the evidence given by both parties”.3 [23] Any implied power would be subject to legislative provisions relating to the power to re-open domestic violence proceedings. If those legislative provisions are restrictive in their application the implied powers which might otherwise exist cannot overcome those restrictions. [24] Section 142 of the Domestic and Family Violence Protection Act 2012 (the DV Act) provides; Procedure for proceeding under this Act (1)The Domestic and Family Violence Protection Rules made under the Magistrates Courts Act 1921, section 57C apply for— (a) a proceeding in a court under this Act; or (b)the registry of a court in relation to a proceeding under this Act. (2)The Uniform Civil Procedure Rules 1999 apply to an appeal under this Act. (3)To remove any doubt, it is declared that the Childrens Court Rules 1997 and the Uniform Civil Procedure Rules 1999 do not apply to a proceeding in a court under this Act. [25] Section 143 of the DV Act provides; Application of usual laws where necessary To remove any doubt, it is declared that— (a)for a proceeding under this Act before a Magistrates Court or magistrate—the provisions of the Justices Act 1886 apply to the proceeding unless the application of that Act is inconsistent with this Act; and (b)for a proceeding under this Act in the Childrens Court— (i)the provisions of the Justices Act 1886 apply to the proceeding unless the application of that Act is inconsistent with this Act or the Childrens Court Act 1992; and (ii)the provisions of the Childrens Court Act 1992 apply to the proceeding unless the application of that Act is inconsistent with this Act. 3 See also DJL v Central Authority [2000]HCA 17; 201 CLR 226 at [38] – [50]. It is clear that any implied power to re-open needs to be exercised very sparingly, only in exceptional circumstances and subject to any legislative provisions. -- 5 of 8 -- 6 [26] An application for a domestic violence protection order is a proceeding under the DV Act and therefore in the absence of any inconsistency the provisions of the Justices Act 1886 (the JA) apply. The DV Act and the relevant rules are silent on the question of re-opening. [27] The “proceeding” referred to first in s143(a) of the DV Act is the application by ACS for a domestic violence protection order. If applicable, the provisions of the JA empowering a Magistrates Court to re-open proceedings relate to that domestic violence proceeding. [28] There are two provisions in the JA which are concerned with re-opening proceedings. Section 142A of the JA relevantly provides; Permissible procedure in absence of defendant in certain cases (1)Notwithstanding the provisions of this Act or any other Act it shall be lawful to adopt in respect of a complaint of a simple offence or breach of duty made by a public officer or a police officer the procedure prescribed by this section. …………. (12)Upon the determination of the matter of a complaint in accordance with the provisions of this section, the court at the place of determination, upon application made in that behalf by the clerk of the court or the complainant or by the defendant or the defendant’s lawyer within 2 months after such determination may, for such reason as it thinks proper, grant a rehearing of the complaint upon such terms and subject to the payment of such costs as it thinks fit. [29] Mr Barkers’ additional submission also seeks to rely on this provision. The section however restricts its application to complaints of a simple offence or breach of duty. That makes it inconsistent with the provisions of the DV Act and therefore not applicable.4 [30] Mr Barker also submits RPS was denied an opportunity to be heard. That is simply not the case. He was served with the notice of adjournment which set out the date and time of the court mention and on his own admission he was aware of that. The fact is he was not at court at the appointed time or when the matter was dealt with. [31] Section 147A of the JA provides; Power of justices to reopen proceedings and rectify orders (1)This section does not apply to an error in a sentence, or to an error consisting of a failure to impose a sentence, for which a court may reopen a proceeding under the Penalties and Sentences Act 1992, section 188. (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 4 This provision is much wider than section 147A discussed later. For an example of the application of section 142A see Honey v McCollom [2012] QDC 353. -- 6 of 8 -- 7 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. Example— An order may be varied to correct the defendant’s name. (3)The powers conferred by subsection (2) include power to set aside a conviction or vacate or vary an order where the justices are satisfied that— (a)the conviction or order has been recorded or made against the wrong person; or (b)the summons issued upon the complaint originating the proceedings that resulted in the conviction or order did not come to the knowledge of the defendant; or (c)the defendant in the proceedings that resulted in the conviction or order has been previously convicted of the offence the subject of the complaint originating those proceedings; or (d)the conviction or order recorded or made against the person was incorrectly ordered or made because of someone’s deceit. (4)The justices may, upon the hearing of an application pursuant to this section, take evidence orally or by affidavit. (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 in that behalf. [32] This section applies to convictions or other orders more generally and its terms are not inconsistent with the operation of the DV Act. Given the original variation application by RPS is treated as an application to re-open I am satisfied that the re- opening application was made within the time limit in subsection (5). As noted earlier sections 23(4) and 39 of the DV Act contemplate and permit the making of a domestic violence protection order even though the person against whom that order has been made did not appear but had been served with a copy of the application. Part 5 Division 5 sections 164 – 169 of the DV Act expressly provide that a challenge to the making of a protection order may be brought as an appeal to a higher court. These provisions do not directly or by necessary implication raise any inconsistency with the application of s147A of the JA to domestic violence proceedings. Those provisions allow the court making the order to correct relevant errors of fact or certain other procedural issues without the necessity, expense and potential trauma of an appeal. [33] Accordingly, section 147A of the JA and section 143 of the DV Act operate so as to give a Magistrates Court power to re-open a domestic violence proceeding but only in the limited circumstances referred to in s147A of the JA. There is therefore no capacity or need to call on any implied power. -- 7 of 8 -- 8 Should the domestic violence proceedings be re-opened [34] Subsection (2) of s147A of the JA restricts the basis on which a re-opening can be achieved to an error of fact including those matters set out in subsection (3). RPS relies on his absence as being an error of fact. His commendable efforts to inform the court of his delay do not alter the fact he was not present at the time the matter was dealt with. [35] It is the case that sometimes tardy litigants or defendants may benefit because their matter has not been reached in the daily list of work to be done by the time they appear in court. It is also the case that sometimes a court may delay dealing with a matter if it has prior notice the person will be late. That decision is a matter entirely within the sitting judicial officers’ discretion which would be informed by the nature and course of business to be conducted that day as well as the interests of justice. The fact that a court can sometimes arrange or re-arrange its business without inconvenience or disadvantage to others, or the court, does not give rise to a reasonable expectation that a court must do that or that a litigant or defendant has some right to such re- organisation. The same considerations would apply whether a person was 10 minutes or 3 hours late. [36] In the present case RPS was not present at the adjourned time or when the matter was dealt with. There is no evidence that his lateness was beyond his control and that lateness is not an error of fact within the meaning of s 147A of the JA. [37] Once a matter is finalised by the making of a final order a statutory courts jurisdiction is complete save where there is authority to re-open proceedings.5 That finality of proceedings principle is not to be treated lightly or readily overturned.6 [38] The application to re-open the proceedings for a domestic violence protection order made by ACS which was finalised on 17 May 2022 is refused. 5 See the provisions of the JA referred to above or, in the civil jurisdiction, rules 290, 388, 667 and 668 of the Uniform Civil Procedure Rules 1999. 6 See paragraph 22 above. -- 8 of 8 --