DL v DL [2009] QDC 17

1-1 [2009] QDC 17 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2388 of 2008 DL Applicant and DL Respondent BRISBANE ..DATE 30/01/2009 ORDER CATCHWORDS: Domestic and Family Violence Protection Act 1989 s 63 - appeal against the making by a magistrate of a "domestic violence order" filed more than 28 days after the order was made in the appellant's presence, indeed long after the order had run its two year course - appeal struck out as too late, and incompetent - court had no jurisdiction to extend time for appealing -- 1 of 4 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: The appellant, Mr L, is dissatisfied with the conduct of a proceeding in the Magistrates Court in Maroochydore which resulted in an order being made against him under the Domestic and Family Violence Protection Act of 1989. He presents to the Court an impassioned account justifying his own conduct in the family context that applied at the time and complaining that he was disadvantaged in the Magistrates Court proceeding because no interpreter was provided. The appeal was not filed in the District Court until the 3rd of September 2008. By that time the order under appeal had run its course; its terms are specific, that it continued in force up to and including the 5th of December 2007. There's little point in the appeal in the circumstances since it can't alter anything except for the adverse aspect which Mr L's remarks today indicate that he takes seriously that he has a criminal or quasi-criminal history and he thinks unjustly. The Registrar brings the matter before the Court today on a reference based on the absence of the outline of argument which the practice direction requires from the respondent. She has indicated to the Registrar by telephone that she doesn't wish to take any part in the appeal and I suppose for obvious reasons. There could be no possible advantage to her whatever the outcome, or disadvantage, come to that. The Registrar informs the Court that there was some difficulty felt in the Registry when the appeal was presented for filing, -- 2 of 4 -- 1-3 ORDER 1 10 20 30 40 50 60 doubts being raised as to whether the Court had jurisdiction to entertain it. The line of least resistance was adopted when Mr L was insistent that the appeal be accepted. This is a convenient occasion for the Court to consider whether it has jurisdiction or not. The problem arises from the 28 day time limit in section 63(3) of the Domestic and Family Violence Protection Act 1989 which provides the sole avenue of appeal available to a person aggrieved by a magistrate's order. There's a mandatory requirement of any appeal which is to be instituted that that be within 28 days after the day on which the order or decision is made in circumstances like the present where the person subject to the order is there when the court makes it. There are many appeals in respect of which this Court has jurisdiction to allow an appellant additional time for instituting an appeal. In particular that's a possibility under the Justices Act 1886 and would appear to be a possibility under other legislation which confers appellate jurisdiction on the District Court on a basis which incorporates relevant parts of the Uniform Civil Procedure Rules. There is no possibility in the Domestic and Family Violence Protection Act of an extension of time being granted - from which I think it follows that the Court simply has no jurisdiction to entertain an appeal instituted after the 28 days. The clear duty of the Court in the circumstances is to -- 3 of 4 -- 1-4 ORDER 1 10 20 30 40 50 60 strike out the appeal as incompetent because of its lateness. It wasn't quite as late as one might think from reading the notice of appeal which gives, as the date of the Magistrates Court order, 1995; that's the explanation for Mr Irvine's confusion as to the date of the order under appeal in the earlier part of the hearing. Mr Irvine did me the courtesy of approaching me yesterday to indicate he thought there might have been a decision of mine which covered this situation of an appeal under the Domestic and Family Violence Protection Act 1989 instituted outside the 28 day period. That's not the case. I have consulted with another judge of the Court who informed me of a matter considered by him in which a gentleman appealing against a domestic violence order invoked the procedures of the Justices Act which he was not entitled to do, given that section 63 was the provision which authorised the appeal he wanted to make. My colleague informs me that the way in which the matter was resolved was that the would-be appellant before him was frustrated in that there was no possibility of him obtaining, so that he could appeal under the Domestic and Family Violence Protection Act 1989, the extension of time which he would have needed. So the appeal is struck out. ----- -- 4 of 4 --