AMA v PGM [2021] QDC 26

DISTRICT COURT OF QUEENSLAND CITATION: AMA v PGM [2021] QDC 26 PARTIES: AMA (appellant) v PGM (respondent) FILE NO: 107/20 PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court Maroochydore DELIVERED EX TEMPORE ON: 29 January 2021 DELIVERED AT: Maroochydore HEARING DATE: 29 January 2021 JUDGE: Cash QC DCJ ORDERS: 1. Extend time within which to file a notice of appeal to 24 June 2020. 2. Allow the appeal and set aside the decision of the Magistrate of 11 June 2020. 3. Remit the matter to the Magistrates Court at Maroochydore. 4. No order as to the costs of the appeal. CATCHWORDS: DOMESTIC AND FAMILY VIOLENCE LAW – APPEAL – PROTECTION ORDER – Where the appellant submits that they were denied procedural fairness – where the appellant submits that the learned magistrate made a protection order in the absence of the appellant – where the appellant further submits they were not served with the order or told by a police officer of the order – whether time for the appellant to file a notice of appeal should be extended LEGISLATION: Domestic and Family Violence Protection Act 2012 (Qld), s 37, s 39, s 44, s 164, ss 165(4)-(5), s 168, s 169 CASES: Allesch v Maunz [2000] 203 CLR 172 DMO v RPD [2009] QDC 92 COUNSEL: I Munsie for the appellant. The respondent appeared in person. -- 1 of 5 -- 2 SOLICITORS: Aitken Whyte Lawyers for the appellant. [1] HIS HONOUR: This is an appeal against a decision of a magistrate in Maroochydore on 11 June 2019 to make a protection order pursuant to the Domestic and Family Violence Protection Act (2012) Qld (DFVPA). The present appellant was named as the respondent to the order. For the reasons below I have concluded that the decision of the Magistrate must be set aside and the matter remitted to the Magistrates Court at Maroochydore for rehearing. In order to explain how I have reached that conclusion it is convenient to start with a brief discussion of the nature of an appeal against the making of a protection order. [2] If a protection order has been made pursuant to section 37 of the Act, a person aggrieved by the decision to make the order may appeal to the District Court.1 Notice of the appeal must be filed within 28 days of the making of the order or if the order was made in the absence of the appellant, within 28 days of the appellant being served with the order or being told by a police officer of the order.2 This Court, however, has a discretion to extend time for the filing of a notice of appeal.3 In deciding the appeal I may confirm or vary the decision, set it aside and substitute a different decision or set it aside and remit the matter to the Magistrates Court for rehearing.4 An appeal must be decided on the evidence and the proceedings before the Court that made the decision being appealed, but this Court may order the appeal be heard afresh in whole or in part.5 [3] These words indicate that, subject to an order for a fresh hearing, the appeal is in the nature of a rehearing rather than a hearing de novo. The principles concerning appeals by way of rehearing are well-established. In an appeal by way of rehearing, the powers of the appellate Court are exercisable only where the appellant can demonstrate that having regard to all of the evidence in the proceeding that is before the appellate Court, that the order that is the subject of the appeal is the result of some legal, factual or discretionary error.6 Usually in an appeal by way of rehearing, it is necessary for the appeal Court to bring its own judgment to bear on the question in the appeal, independent of the judgment of the body under appeal although a good deal of weight may be attached to the view of that body. This applies particularly when the issue involves the drawing of inferences. [4] This appeal though is somewhat different as the appellant’s argument is not directed at establishing some error in the decision of the magistrate to make the protection order but rather at the hearing of the matter as the appellant was not present and says she was not notified of the hearing date. The appellant argues that she was denied procedural fairness at the most fundamental level. There is little room to doubt that the requirement to afford procedural fairness applies to decisions of a magistrate acting under the DFVPA.7 It is true that procedural fairness does not require the inflexible application of a fixed body of rules but is concerned with fairness in all the 1 DFVPA, s 164. 2 Ibid, s 165(4). 3 Ibid, s 165(5). 4 Ibid, s 169. 5 Ibid, s 168. 6 Allesch v Maunz [2000] 203 CLR 172, 180. 7 DMO v RPD [2009] QDC 92, as per McGill SC DCJ [4] – [12]. -- 2 of 5 -- 3 circumstances including the nature of the jurisdiction being exercised and the statutory framework.8 However, as was observed in Allesch v Maunz at paragraph 28: A Court will ordinarily be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or the rehearing would work an irremediable injustice to the other side. In the same case, Justice Kirby wrote: It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material, information and submission relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as an indispensable requirement of justice. [5] I turn now to set out the history of this matter as revealed by the Court file from the Magistrates Court. On 5 February 2019 the respondent to this appeal filed an application for a protection order in the Magistrates Court at Caloundra. This application identified the present appellant as the respondent. On 12 February 2019, a constable personally served the appellant with the application and she was advised the application was returnable before the Magistrates Court at Caloundra on 25 February 2019. [6] On that date a temporary protection order was made pursuant to section 44 of the Act. The appellant was present when this order made and a date was fixed for a hearing about whether or not a protection order should be made pursuant to section 37. The appellant was handed a notice advising of this date. The notice described that: The hearing of the application has been adjourned as follows. [7] The notice then set out the Court, place, date and time of the further hearing as Caloundra Magistrates Court at 8.30 on 11 October 2019. The notice concluded with an admonition that: If you fail to appear in Court on this day a domestic violence order may be made in your absence. [8] An identical notice was posted to the respondent to this appeal. There is no satisfactory explanation for what followed. Despite the hearing date being allocated in October 2019, on the 22nd of March 2019 a letter was sent by the registrar at Caloundra to the registrar at Maroochydore advising the matter was “heard” at Caloundra on that day and adjourned for hearing in Maroochydore on 11 June 2019. There is little on the file to indicate what actually happened that day and nothing on the file to suggest that an actual hearing took place. There is an endorsement on the file, presumably under the hand of the magistrate, which appears in a block initially bearing the date 11 October 2019. This date has been struck through and the date 22 May 2019 written above. [9] Boxes have been ticked to indicate that neither the aggrieved, the present respondent, nor the respondent, the present appellant, were present in Court. Other notations 8 National Companies and Securities Commission v New Corporation Limited [1984] 156 CLR 296, [312]. -- 3 of 5 -- 4 record that the hearing of 11 October 2019 was delisted and the matter was adjourned to Maroochydore for mention on 11 June 2019 at 9.00am. A notice of adjournment in a form similar to that described above was seemingly prepared by someone in the registry. One was addressed to the appellant and contained reference to the new date of 11 June 2019. It described the matter as being for mention on that date. There is no real indication this notice was ever sent to the appellant. An email advising of the change date was sent to the respondent. On 11 June 2019 the matter came before a magistrate at Maroochydore. The respondent appeared while the appellant did not. [10] A protection order was made, presumably in accordance with section 39 of the Act. There is on the file a transcript of the decision of the magistrate who expressed his satisfaction that there had been domestic violence and that a protection order would be made. The magistrate expressly disregarded the contents of some material filed by the appellant by mail on the basis that it was incorrect in form. The appellant herself deposes that after appearing on 25 February 2019 she went away expecting the matter to be heard in October and was provided with dates by which she was to file material. The appellant spent some months in the USA mailing her affidavit material from California in order to comply with the directions as to filing. [11] The appellant deposes that she had made arrangements for people to collect her mail while she was absent and also that she understood the Court had her email address. She says she received no notice the date had been changed from October to June. When she returned to Australia in September 2019 she contacted the Court at Caloundra to confirm the matter was proceeding. It was only then that the appellant became aware the date had been changed. She deposes that she was told the matter “settled” but was not told of the protection order. It was not until 24 June 2020 that the appellant filed her notice of appeal. She explains this as being the result of a number of events. First, the appellant returned to the USA for a time in late 2019 and then when the COVID-19 pandemic took hold it was not until April 2020 that she was in Australia and contacted the Court again. [12] She says that it was only on 9 April 2020 that she was made aware for the first time that a protection order had been made and she was emailed a copy of that order. From that point the appellant retained solicitors and the appeal was filed, as I have noted, on 24 June 2020, about six or seven weeks later. There is a threshold issue of whether the appeal was commenced within time. As the decision was made in the absence of the appellant, any appeal was to be commenced within 28 days of the earlier of the dates on which she was served with a copy of the order or the day a police officer told her of the existence of the order. Assuming the email of 9 April 2020 constitutes service of the order, the 28 day limit ran from that day. On that basis the appeal was filed out of time and the appellant requires an extension of time. [13] Whether or not an extension of time should be given depends upon an assessment of the merits of the proposed appeal and any explanation for the delay. The delay here was not substantial and there is some explanation for it. It is the merits of the appeal that should determine whether an extension of time is appropriate. In my view, the merits of the appeal favour the appellant. It is true, as the respondent points out, that the appellant had an obligation to keep informed of the progress of the matter but where a date has changed unilaterally in the absence of a party, special care must be taken by the Court to ensure the parties are told of that change. [14] The existence of a copy of a notice addressed to the appellant is not sufficient proof that she was told of the changed date or even that it was, in fact, sent to her postal -- 4 of 5 -- 5 address. I am satisfied on the material the appellant was not told the date of the hearing had been brought forward from October 2019 to June 2019. In those circumstances, it was inappropriate for the magistrate to hear and decide the application without satisfying himself that the appellant had notice of the hearing. For the Magistrate to proceed in these circumstances denied the appellant an opportunity to contest the making of the protection order. In these circumstances, the appeal must be allowed, the decision to make the protection order set aside and the matter remitted to the Court that made the decision, being the Magistrates Court at Maroochydore. [15] I acknowledge that this decision is likely to cause distress to the respondent. It is, to say the very least, regrettable that such an order is necessary and it is to be expected that in the future much more care is taken in the administration by the Magistrates Court of this difficult jurisdiction. [16] The appellant seeks their costs of the appeal. While ordinarily costs ought to follow the event, it is open to the Court to make another order if the justice of the situation requires it. In my view, having regard particularly to the fact that the difficulty that has given rise to this appeal was in no way contributed to by the conduct of the present respondent, it is not appropriate to order that the respondent pay the costs of the appellant. Instead, in the circumstances, there will be no order as to costs. [17] The orders then are: (1) Extend time within which to file a notice of appeal to 24 June 2020; (2) Allow the appeal and set aside the decision of the magistrate of 11 June 2020; (3) Remit the matter to the Magistrates Court at Maroochydore for mention on Tuesday, 2 February 2021; (4) There is no order as to the costs of the appeal. ______________________ -- 5 of 5 --