EM v EN [1999] QCA 511

SUPREME COURT OF QUEENSLAND CITATION: EM v EN [1999] QCA 511 PARTIES: EM (Applicant/Appellant) v EN (Respondent/Respondent) FILE NO/S: Appeal No 8894 of 1999 DC No 281 of 1998 DIVISION: Court of Appeal PROCEEDING: Miscellaneous application – civil ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 7 December 1999 DELIVERED AT: Brisbane HEARING DATE: 22 November 1999 JUDGES: de Jersey CJ, Thomas JA, Helman J Judgment of the Court ORDER: Application for extension of time refused. Application for leave to appeal refused. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – GENERAL APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME Protection order made in Magistrates Court against appellant on proceedings instituted by respondent – order made under the Domestic Violence (Family Protection) Act 1989 – unsuccessful appeal to District Court – application for leave to appeal under s 118(3) of the District Court Act – explanation for delay not persuasive – whether any merit in appeal – whether breach by respondent of Family Court orders – whether bias in lower court – whether Magistrates Court -- 1 of 6 -- 2 lacked jurisdiction – relationship between s 139 of the Justices Act 1886 and s 38 of the Domestic Violence (Family Protection) Act discussed – whether conduct capable of founding protection order District Court Act 1967, s 118(3) Domestic Violence (Family Protection) Act 1989, s 11, s 38, s 47, s 48, s 49, s 63 Justices Act 1886, s 139 COUNSEL: The applicant/appellant appeared on her own behalf The respondent appeared on his own behalf SOLICITORS: The applicant/appellant appeared on her own behalf The respondent appeared on his own behalf [1] THE COURT: On 20 January 1998 a protection order was made in the Magistrates Court at Beenleigh against EM, upon proceedings instituted by her former husband EN. The order was made under the Domestic Violence (Family Protection) Act 1989. Ms EM appealed to the District Court under s 63 of that Act. That appeal was dismissed. Ms EM now applies to this Court under s 118(3) of the District Court Act 1967 for leave to appeal against that judgment. Both she and the respondent appeared in person here and below. The application was filed on 1 October 1999. The order against which leave is sought to appeal was made on 8 May 1998. The application is therefore out of time by more than 15 months. [2] The protection order inter alia required the applicant to be of good behaviour towards the respondent, and restrained her from going to his residence or workplace, and from having direct or indirect personal contact with him. The order was for a period of two years terminating on 19 January 2000. [3] The principles upon which this court exercises its discretion to extend time and its discretion to grant leave to appeal in such matters are discussed in R v Tait1 and in R v Lewis2. Among other factors, the court considers whether good reason is shown to account for the delay, the length of the delay and whether the interests of justice are served by granting the extension. Other potentially relevant matters may include the apparent strength or otherwise of the proposed appeal. [4] The basis upon which the original order was made was the applicant's conduct in making a number of harassing phone calls to the respondent. [5] The material reveals that the parties were formerly married with two daughters. In April 1985 the marriage was dissolved and a custody order was made in favour of the applicant with access rights to the respondent. Some time later however the daughters commenced living with the respondent and there is evidence that in recent years the daughters, particularly the elder daughter, did not wish to maintain contact with the applicant. The elder daughter left home some years ago, and the younger daughter lived with the respondent until May 1997 when she went to live with her 1 CA No 210 of 1998, 6 October 1998. 2 CA No 204 of 1998, 28 August 1998. -- 2 of 6 -- 3 sister. By the time of the hearing of the District Court appeal the older daughter was 27 and the younger daughter 16 years old. The younger daughter is now aged 18. It was the contention of the applicant that the reason for her telephone calls to the respondent was to find out the address and circumstances of the younger daughter. However the evidence of the respondent was that the calls to him were abusive, obscene and persistent. There was also evidence of further calls to the respondent's defacto wife, to other employees of the respondent's employer and to members of the respondent's family in the United Kingdom. [6] In this court the applicant repeated a number of the arguments upon which she unsuccessfully relied in the District Court, and submitted that the learned District Court judge erred in a number of respects. It is necessary to mention only the major points which the applicant advanced before this court. [7] "Act of perjury" by respondent In the District Court both parties unsuccessfully applied for a hearing de novo and for further evidence to be given. Apparently the respondent foreshadowed a desire to place before the learned judge a tape which supported the making by the applicant of eight abusive, harassing calls to his mobile phone in one day. Apparently at one stage in his evidence before the magistrate the respondent had stated that eight calls were made on 20 January. That date was the date of the Magistrates Court hearing, and it seems highly likely that this was a slip of the tongue or a bona fide error. Nothing would be gained by the respondent in suggesting such a date and it seemed to be common ground that the phone calls in question had occurred in the period October or November 1997. The learned District Court judge noted that it was not suggested to the respondent in cross-examination that such calls had not been made, and that no evidence was given by the applicant to the contrary. This would seem to be an opportunistic point without merit and no error can be seen in the learned District Court judge's failure to be impressed by it. [8] "The respondent breached Family Court orders by refusing to inform me of our daughter's whereabouts" The respondent may well have breached a requirement (express or implied) of a Family Court order by refusing to give the applicant the information she desired. Indeed the applicant tendered an order obtained on 19 July 1999 from a judicial registrar which contains the following finding: "The court finds that the father has without reasonable excuse contravened orders of this court made on 19 April 1985 in that in October and November 1997 he failed to inform the mother of the whereabouts of the child Rachel …". That however gave no right to the applicant to make repeated harassing telephone calls such as those which the magistrate found to have been made. There is no inconsistency shown between the Domestic Violence (Family Protection) Act and a law of the Commonwealth in this respect. If the respondent breached his obligations under family law the applicant had adequate remedies in the Family Court. The applicant had no licence to engage in "intimidation or harassment of the spouse" under s 11 of the Domestic Violence (Family Protection) Act even if the respondent erred in failing to give her the information that she sought. Assuming that she had a right to make an inquiry her conduct according to the evidence went well beyond this. -- 3 of 6 -- 4 There is no reason to think that the applicant would have any reasonable prospects of success on this ground. Prejudice in the lower court [9] The origin of this allegation is the applicant's fear that a police sergeant stationed at Beenleigh was prejudiced against her and might have influenced the court. The magistrate who heard the application was not a regular Beenleigh magistrate but a visiting magistrate from Brisbane. The learned District Court judge observed "in these circumstances there was no possible reason for concern on the basis raised by the appellant". His Honour also rightly considered that there was no error revealed in the decision of that magistrate refusing the applicant's application for a change of venue to Brisbane. The Magistrate's Court at Beenleigh lacked jurisdiction [10] The learned District Court judge rejected this submission after reference to s 38 of the Domestic Violence (Family Protection) Act and s 139 of the Justices Act 1886. The latter section includes the following provisions concerning locality of the court in which proceedings may be brought: "139(1) Subject to the provisions of any other Act in that behalf, a complaint of a simple offence or breach of duty shall be heard and determined - (a) at a place appointed for holding Magistrates Courts within the district within which the offence or breach of duty was committed; or (b) at a place appointed for holding Magistrates Courts within the district within 35 km of the boundary of which the offence or breach of duty was committed;.". There is an ambiguity in sub-para (b). One view is that the words "the district in" would seem to have been unintentionally omitted after "the boundary of". Another is that it should be read as requiring that the court be within 35 kilometres of the boundary of the district in which the breach occurred, although several transpositions and replacements of words would be necessary to reach that result. However neither of these views produce a result that has any particular logical or historical justification. The Act which caused the problem was the Justices Act Amendment Act 1964 (s 60), which divided the former version of the section into subparagraphs. No intention can be discerned to alter the system which had been in existence for a considerable time. There was no ambiguity in the former section, which can be seen in Kennedy Allen's third edition (1956) of the Justices Acts of Queensland 1886- 1949. The former version contained the following proviso: "Provided that if the offence or breach of duty was committed outside of a district, but within twenty miles of the boundary thereof, the complaint may be heard and determined at a place appointed for holding Courts of Petty Sessions either within that district or within the district in which the offence or breach of duty was committed". We would interpret s 139(1)(b) as having the same meaning. Shortly stated, a matter may be heard in any Magistrates Court within a district which has a boundary within 35 kilometres of the place where the breach of duty was committed. -- 4 of 6 -- 5 [11] Section 38 of the Domestic Violence (Family Protection) Act is in the following terms: "(1) Jurisdiction is conferred on – (a) every Magistrates Court and Magistrate to hear and determine all applications made to it or the Magistrate under this Act; and (b) every other court before which a person pleads guilty to, or is found guilty of, an offence that involves domestic violence. (2) To avoid any doubt, the provisions of the Justices Act 1886 apply to proceedings under this Act before a Magistrates Court or Magistrate unless the application of the Act is inconsistent with this Act.” [12] The conferral of jurisdiction under subsection (1) upon "every Magistrates Court" to "hear and determine all applications … under this Act" is prima facie adequate to overcome restrictions based on locality. However a question arises under subsection (2) whether the application of s 139 of the Justices Act is inconsistent with "this Act", that is to say with the Domestic Violence (Family Protection) Act. The learned judge convincingly discussed the impracticability of dealing with domestic violence that consists for example of repeated harassing telephone calls within the one district or division, particularly when some calls may be made to or from a complainant in one area and other calls may be made to or from different areas. His Honour's reasoning leads to a conclusion that the strict application of s 139 of the Justices Act would be inconsistent with the practical administration of the Domestic Violence (Family Protection) Act. However we are by no means sure that that conclusion is sufficient to exclude the requirements of s 139 of the Justices Act. Nevertheless it seems to us that there are other provisions in the Domestic Violence (Family Protection) Act which confirm the broader jurisdiction that s 38(1) confers on every Magistrates Court and that these provisions are sufficient to exclude the application of s 139 of the Justices Act. It is to be noted that s 47 of the Domestic Violence (Family Protection) Act makes procedural provisions over and above those provided for in the Justices Act. Further, sections 48 and 49 of the Domestic Violence (Family Protection) Act govern the hearing and determination of relevant applications according to whether the respondent spouse appears or does not appear. Section 48 provides that when a respondent spouse appears, the court has jurisdiction to hear and determine the application. It restricts the bases upon which an application may be dismissed in such circumstances. This provides a jurisdiction inconsistent with the limited locality jurisdiction of s 139 of the Justices Act. Without expressing a final view on this question, there is insufficient ground for thinking that the applicant has a sound cause for complaint that the Magistrates Court at Beenleigh lacked jurisdiction. [13] There is a further ground upon which the applicant's objection on the question of jurisdiction would seem likely to fail. The applicant did not object to the Magistrates Court's jurisdiction and instead applied for a change of venue. Consequently the necessary jurisdictional facts that would be relevant upon an objection to jurisdiction were not explored. A preliminary examination of the relevant statutory instruments prescribing Magistrates Court districts and divisions suggests that even if s 139 of the Justices Act is applicable, the boundary of the Beenleigh district which contains Beenleigh may well lie within 35 km of the area known as Deception Bay, where, according to the applicant the breach of duty would have occurred. As at 20 January 1998 the regulation appointing relevant Magistrates Courts' districts was that published in the Government Gazette of 10 February 1973 p 581. The Magistrates Court at -- 5 of 6 -- 6 Beenleigh was at that time in the Logan division of Brisbane, the boundary of which lay well within 35km of the boundary of the Caboolture district. A similar position obtains since the Justices Amendment Regulation (No 2) of 1998 (subordinate legislation No 155 of 1998) which now recognises Beenleigh as a district in its own right. [14] No information was provided to the court of the distance between the place where the breach of duty was committed and the relevant boundary. Nothing was shown below or here to rebut the presumption of jurisdiction contained in s 21 of the Justices Act. The point was not taken at the appropriate stage below, and there was no investigation of the necessary preliminary facts that would enable it to be satisfactorily determined. This is not an issue that requires an indulgence to be granted so that the point may now belatedly be raised. [15] There is insufficient reason to think that there is any merit, legal or otherwise, in the objection to jurisdiction. Conduct capable of founding protection order [16] The definition of "domestic violence" in section 11 of the Domestic Violence (Family Protection) Act includes "intimidation or harassment of the spouse", which includes a former spouse. One of the examples given within the Act is "repeatedly telephoning the spouse at home or work without consent …". There is no reason to differ from the view of the learned District Court judge that the conduct alleged was capable of constituting harassment and in turn of being the basis of a protection order. Delay [17] The applicant's explanation for the lengthy delay that has occurred is that she was waiting for a decision from the Family Court in which she filed an application on 10 March 1998. The order in question was obtained on 19 July 1999 and it included the finding mentioned in para [8] above. It is noted that the applicant delayed for more than two months after obtaining that order before filing the present application. The obtaining of the Family Court order was not necessary in order to bring the present application. For reasons given above that order is irrelevant. The same arguments were available to the applicant with or without such an order. In the present case, the result of the delay is that the protection order is now close to expiry. In short, very little practical utility attends the bringing of the proposed appeal. The explanation for the delay is not persuasive. Conclusion [18] In all the circumstances the application to extend time should be refused. Furthermore in any event leave to appeal should be refused. Orders [19] Application for extension of time refused. Application for leave to appeal refused. -- 6 of 6 --