Building capacity: Domestic Violence Best Practice
Appeals of Protection Orders
22 May 2019
Acknowledgement of country
Community Legal Centres Queensland acknowledges the traditional
owners of the land on which we are holding this presentation, the Turrbul
and Jaggara people.
We pay our respects to their elders, past, present and emerging, and
acknowledge the important role Aboriginal and Torres Strait Islanders
continue to play in our society.
As this presentation is being viewed throughout Queensland, we also pay
respect to the traditional owners of the land throughout the country and
extend a warm welcome to any First Australians listening to this
presentation.
We also acknowledge the disproportionately high rates of domestic
violence experienced by Aboriginal and Torres Strait Islander peoples and
the additional challenges this creates in responding to this issue.
About this series of webinars
This series of webinars is part of a program provided by Community Legal
Centres Queensland with funding provided by the Queensland State
Government’s Victim Services Funding Program: Building Capacity 2018-
2019.
The program will include webinars run in late 2018 and early 2019, a
written toolkit to be circulated by mid 2019, and establishment of a peer
mentoring network.
The purpose of the program is to build capacity in Queensland’s
community legal centres staff and volunteers to use best practice in
identifying domestic violence issues, working with clients experiencing
domestic violence and relevant agencies, and supporting workers in this
area.
Important information
Legal disclaimer:
This presentation is for professional development and education purposes only. The information provided in this
presentation is not legal advice and is designed for lawyers and other staff working and volunteering in a community legal
centre setting in Queensland.
This presentation and webinar is not to be published or reproduced for commercial purposes without the express
permission of the author.
Information is current as at 22 May 2019. Community Legal Centres Queensland does not accept any liability for the
accuracy of the information in the presentation.
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Appeals of Protection Orders22 May 2019
Presented by Seraphina Noble
Barrister
Jeddart Chambers
Seraphina was called to the Queensland bar in
October 2017. She chose to pursue a career at the
bar having assisted barristers at Jeddart Chambers for
a number of years, during which time she developed a
passion for advocacy. Since being called to the bar,
she has appeared in courts ranging from the
Magistrates Court to the Court of Appeal, the Industrial
Court and the Federal Circuit Court. Seraphina has
practiced in a wide range of areas including domestic
violence. She is a member of the Women Lawyers
Association of Queensland and the LawRight Pro
Bono referral service.
Aim of this webinar
This webinar will summarise the procedural requirements for appeals of
decisions relating to protection orders together with recent caselaw.
This webinar will address:
• Procedure for appeals
• RC v MM [2018] QDC 276
• CPD v IVAMY [2018] QDC 244
• RCK v MK [2018] QDC 181
• NBE v PRT [2018] QDC 029
• BLJ v QLB [2018] QDC 014
The focus will be on practical points for advising or representing clients in
appeals of protection orders.
Nature of appeal
The appeal lies pursuant to section 164 of the Domestic and Family
Violence Protection Act 2012 (Qld) (“the Act”):
164 Who may appeal
A person who is aggrieved by any of the following decisions of a
court may appeal against the decision—
(a) a decision to make a domestic violence order;
(b) a decision to vary, or refuse to vary, a domestic
violence order;
(c) a decision to refuse to make a protection order;
(d) if the person sought a temporary protection order in a
proceeding under this Act—a decision to refuse to make
the order.
Appellate powers
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.
The appellate powers of the court provided by section 169 are exercised for
the correction of error (in fact or law) by the primary decision maker.
The general principle is that the appellate court ought not interfere with a
decision unless it is affected by an error of principle, there has been a failure
to appreciate a salient feature, or there is otherwise a miscarriage of justice,
as stated in MDE v MLG at [80]:
This court ought not interfere with the decision to make the protection
order unless it is vitiated by an error of principle, there has been a
failure to appreciate a salient feature or there is otherwise a
miscarriage of justice.
Appellate powers cont’d
Hearing procedure
The appeal is usually decided by a re-hearing, decided on the evidence
and proceedings before the originating court. However, the appellate court
can order that the appeal be heard afresh, in whole or in part:
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.
Exercise of discretion
Where the decision under appeal involves the exercise of discretion, House v
R error will need to be shown.
The High Court held in House v. The King (1936) 55 CLR 499 at 504 and 505
that:
"It is not enough that the Judges composing the Appellate Court consider
that if they had been in a position of the primary Judge they would have
taken a different course. It must appear that some error has been made in
exercising the discretion. If the Judge acts upon a wrong principle, if he
allows erroneous or irrelevant matters to guide or affect him, if he
mistakes the facts, if he does not take into account some material
consideration, then his determination should be reviewed and the
Appellate Court may exercise its own discretion in substitution for his if it
has the materials for doing so. It may not appear how the primary Judge
has reached the result embodied in his order, but, if upon the facts, it is
unreasonable or plainly unjust, the Appellate Court may infer that in some
way there has been a failure properly to exercise the discretion which the
law reposes in the Court of first instance."
Limits
The limitations of an appeal include a disadvantage in respect of the
evaluation of witnesses and the ‘feeling’ of the case, and not having the
advantage of receiving and considering the entirety of the evidence over a
longer interval.
As stated in Fox v Percy [2003] 214 CLR 118 at 125 – 126:
“…it must, of necessity, observe the ‘natural limitations’ that exist in a case of any
appellate court proceeding wholly or substantially on the record. These limitations
include the disadvantage that the appellate court has when compared with the trial
Judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a
case which an appellate court, reading the transcript, cannot always fully share.
Furthermore, the appellate court does not typically get taken to, or read, all of the
evidence taken at the trial. Commonly, the trial Judge therefore has advantages that
derive from the obligation and trial to receive and consider the entirety of the
evidence and the opportunity normally over a longer interval, to reflect upon that
evidence and to draw conclusions from it, viewed as a whole.”
Final and conclusive
There is only one right of appeal. The plain words of s 169(2) are that such
an appeal is “final and conclusive”, which indicate that the legislature
intended no further appeal:
169 Powers of appellate court
…
(2) The decision of the appellate court upon an
appeal shall be final and conclusive.
On that basis, in ZXA v Commissioner of Police [2016] QCA 295 the Court
of Appeal found that section 118(3) of the District Court of Queensland Act
1967 (Qld) (which allows a party dissatisfied with a judgment of the District
Court to appeal to the Court of Appeal with the court’s leave) did not apply
to a decision of the District Court in its appellate jurisdiction under s 169(1)
of the Act.
Costs of appeal
Section 157 of the Act provides that each party must bear their own costs
unless an application was malicious, deliberately false, frivolous or
vexatious, in which case the court may award costs against that party.
157 Costs
(1) Each party to a proceeding for an application under this Act
must bear the party’s own costs for the proceeding.
(2) However, the court may award costs against a party who
makes an application that the court hears and decides to
dismiss on the grounds that the application is malicious,
deliberately false, frivolous or vexatious.
(3) In this section—
party includes an aggrieved.
However, the appeal provisions in the Act are silent about costs.
In RCK v MK at [51] to [52], Morzone QC DCJ was of the view that section
157 was limited to the primary proceeding and not the appeal proceeding.
Having regard to section 142 of the Act, Judge Morzone was of the view the
usual cost provisions in chapter 17A of the UCPR were applicable. His
Honour further noted that section 15 of the Civil Proceedings Act 2011 (Qld)
empowers a court to award costs in all proceedings unless otherwise
provided.
142 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.
Costs of appeal cont’d
Note: A judge may take the view that s 169 does not give power to an
appellate court to award the costs of an appeal, particularly where a
successful appellant is unrepresented.
Dorney DCJ held in HMG v BRC [2010] QDC 485 at [76] that although he
was given power to make costs orders (under the repealed Act which
allowed District Court judges the power to order costs of an appeal),
considering the appellant succeeded but was not represented, nor
appeared, no orders as to costs of the appeal were made.
Costs of appeal cont’d
RC v MM [2018] QDC 276
This was an appeal of a two year protection order naming the aggrieved,
her husband, children and unborn child.
The primary issue was whether the Magistrate had erred in concluding that
an act of domestic violence had occurred, and predominantly, whether the
Magistrate had erred in finding the order necessary or desirable.
• Ms R was the aggrieved and the respondent to the appeal.
• Mr M was the appellant.
• They had an intimate relationship which ended after about 2 ½ months because
Ms R was reconciling with her husband.
• Ms R contended that Mr M was pursuing and annoying her thereafter, which was
distressing, if not rising to the level of stalking.
• Mr M sent a controversial email to Ms R and her husband sometime after the
relationship had ceased.
Ms R and Mr M had no children together, no shared bank accounts
and they each gave evidence that they had no desire for contact in
future.
Findings on appeal
• Her Honour’s reasons did not analyse the question of whether the
protection order was necessary or desirable at all, in circumstances
where the sworn evidence showed there was no ongoing relationship
between the parties
• Her Honour erred by acting upon a wrong principle (not turning her mind
to the “necessary or desirable” element), allowing erroneous or
irrelevant matters to be taken into account (unjustified conclusion that at
the date of hearing, Mr M wanted ongoing conversation when the email
was sent six months back and there had been no bad behaviour since)
and not taking into account material considerations (uncontested
evidence that there was no ongoing relationship – and implication that
he was only behaving for six months because of the temporary order,
not put to him in cross).
• The appeal was allowed, the orders were set aside and the application
was dismissed.
CPD v IVAMY [2018] QDC 244
This was an appeal of a five year protection order naming the aggrieved
and the children of the relationship.
The primary issue was whether the Magistrate had erred in finding the
order necessary or desirable to protect the appellant’s ex-wife and
the children of the relationship.
• Ms B (the aggrieved and the respondent to the appeal) was a police prosecutor.
• She had been married to Mr C, the appellant, a former detective, with two
children.
• Ms B accused Mr C of controlling, emotionally abusive and threatening
behaviour towards her during the breakdown of their marriage.
• There was an incident where Ms B was filling out a rental form and Mr C tried to
remove it from her. Amongst other things, there was a scuffle over it and the form
was ripped apart.
There was later an undertaking that Mr C would contact Ms B through
emails by his mother i.e. his mother acted as conduit.
The decision below
The Magistrate found that:
• emails from Mr C’s mother to Ms B contained negative input from Mr C,
i.e. from time to time unnecessary comments critical of Ms B, and there
was a continuation of harassment and offensive conduct through these
emails.
• the “overzealous” and “unsubstantiated attack” on the aggrieved in her
personal capacity throughout the conduct of the trial (by counsel) was a
prolongation of bullying through harassment and intimidation,
characterised as an act of domestic violence.
Findings on appeal
• The trial was plagued by acrimony and confusion.
• There was a seven month delay between the end of the hearing and the
decision and there was no evidence about the nature of the relationship
in that time, which would have been relevant.
• Her Honour’s finding that the appellant was behind the tone and
wording of the emails was not open on the evidence. The consequence
to the appellant of a finding that he was behind the emails, required a
high level of satisfaction.
• The conduct of the trial may be relevant to matters such as costs but the
finding that the conduct of the trial constituted domestic violence was
inconsistent with the nature of the relationship between counsel and
client.
• The appeal was allowed, the order was set aside and the matter was
remitted back to the Magistrates Court for rehearing (having regard to
credit findings and the state of the affairs since the hearing).
RCK v MK [2018] QDC 181
This was an appeal of a five year protection order.
The primary issue was whether the Magistrate had erred in finding
sufficient evidence to justify there was domestic violence or that the order
was necessary or desirable, and in making the order and not
adjourning the application.
• The appellant Mr R was the nephew of the aggrieved and respondent to the
appeal Ms K.
• There was a violent assault by Mr R’s father on Ms K after which Mr R
threatened Ms K, ran off and drove off.
• At a later date Mr R made a gesture in the form of a pistol and pointed to the
aggrieved whilst they were both in separate cars at traffic lights.
• There were other related applications and criminal proceedings involving the
assailant in the prior event.
There were adjournments until the outcome of the related criminal
proceedings. When the matter finally came on, the respondent (or his
legal representative) did not appear.
RCK v MK cont’d
• There is no express guidance on whether to hear and decide, or
adjourn, the application in the absence of the respondent pursuant to
section 39 of the Act:
39 Hearing of application—non-appearance of respondent
(1) This section applies if a respondent fails to appear before the
court that is to hear and decide an application for a protection
order and the court is satisfied that the respondent has been
served with a copy of the application.
Note—
If a respondent has been served with a police protection notice, because of
section 112, the respondent is taken to have been served with a copy of an
application for a protection order.
(2) The court may—
(a) hear and decide the application in the absence of the
respondent; or
(b) adjourn the application, whether or not it makes a temporary
protection order under division 2; or
(c) subject to section 156(1), order the issue of a warrant for
the respondent to be taken into custody by a police officer and brought
before the court.
Findings on appeal
There was no positive explanation for the absence of the respondent or his
solicitor despite the notice being addressed personally. The only rational
inference was that it was a mere oversight.
Matters which should have been taken into account were:
• that the proceeding was subject to active management with other
related proceedings, particularly one criminal proceeding which had not
yet been determined
• it was common ground that those cognate proceedings should be
finalised
• there was no courteous attempt by the representative of the aggrieved
to contact the solicitor for the respondent
• the state of the evidence was the subject of express dispute
Findings on appeal cont’d
• The Magistrate did not take into account material considerations in
exercising the discretion to proceed or grant an adjournment and
misdirected herself in proceeding to hearing and making the final
orders, which result as being unreasonable, unjust and the result of a
failure to properly exercise the discretion.
• The appeal was allowed, the orders set aside and the matter remitted to
be re-heard.
Notwithstanding his decision, Judge Morzone went on to discuss the
sufficiency of evidence which would have justified the making of the order.
His Honour noted that the Magistrates Court was not bound by the rules of
evidence and should be satisfied on the balance of probabilities. Though not
bound by the rules of evidence, it is well settled that the court’s decision must
arrive from relevant reliable and rationally probative evidence that tends
logically to show the existence or nonexistence of the facts in issue.
In this case, the matters about the respondent’s conduct was in the category
of suspicion or speculation, which ought be subject to a hearing. The
evidence as it stood fell well short to justify the making of a protection order.
Findings on appeal cont’d
NBE v PRT [2018] QDC 029
This was an appeal of a decision to dismiss an application for protection
order in the absence of the applicant and on a basis that would engage
section 157(2), enabling the recovery of costs. The notice of appeal was
filed late.
Section 165 (5) allows the District Court to extend the period for filing the
notice of appeal:
165 How to start appeal
(1) The appeal is started by filing a notice of appeal with the registrar of the
appellate court.
…
(5) The appellate court may at any time extend the period for filing the
notice of appeal.
General principles applicable are whether there is good reason for delay
and whether it would be in the interests of justice to grant the extension.
There was no explanation for the delay of one week except lack of
understanding and difficulties encountered because the applicant was self
represented. However, the applicant was only seeking the intervention of
the District Court concerning the costs order below.
This is not usually allowed by section 164 however the costs order was
exceptional.
NBE v PRT cont’d
The Magistrate awarded the cost order for reasons including:
• the application was filed in Harvey Bay as opposed to Western
Australia, forcing the respondent to incur substantial costs
• the aggrieved did not attend despite being informed by the registry that
it was necessary
• her continued emails to the registry
• the conduct of the aggrieved in posting for financial assistance in the
electronic media
NBE v PRT cont’d
157 Costs
(1) Each party to a proceeding for an application under this Act
must bear the party’s own costs for the proceeding.
(2) However, the court may award costs against a party who
makes an application that the court hears and decides to
dismiss on the grounds that the application is malicious,
deliberately false, frivolous or vexatious.
(3) In this section—
party includes an aggrieved.
Costs pursuant to 157(2) should have a cautious approach especially in
the absence of the party against whom the order is sought. A party seeking
the exercise of such power should expect to justify the conclusion as a
clear one and from an objective point of view.
For costs, the respondent needed to show the application had no
foundation. This was not so in the context of the temporary order and
undertaking, and there was no clear and objective indication of the
application being frivolous.
NBE v PRT cont’d
Further the Magistrate entered error and did not take into account section
147 (1) that the aggrieved may be represented by a legal officer, police
officer or authorised person in circumstances where she had a Justice of
the Peace outside the courtroom to represent her and this was refused by
the Magistrate.
The magistrate would not have been bound to allow him to represent the
applicant but the issue was never appropriately considered.
147 Representation of aggrieved
(1) A police officer, service legal officer or authorised person
for the aggrieved may appear and act on behalf of an
aggrieved in a proceeding for any application under this Act.
(2) If an authorised person for an aggrieved has made an
application under this Act to a court and the court decides the
authorised person is not able to help it, the application is taken
to have been made by the aggrieved.
NBE v PRT cont’d
Findings on appeal
• The Magistrate erred in giving little or no consideration to the weight to
be attached to the applicant’s material and to allow it to be swept aside
by the effectively contentious evidence of the respondent, with
significant misunderstanding as to the applicant’s preparedness to
pursue her application and to have her representative pursue it, in
determining the questions for costs.
• In these circumstances of substantial error, the applicant was granted
the extension of time for filing her notice of appeal and the cost orders
were deleted.
BLJ v QLB [2018] QDC 14
[31] As to the nature of a fair trial, in National Companies and Securities
Commission v The News Corporation Limited4, Gibbs CJ explained that:
“The authorities show that natural justice does not require the inflexible
application of a fixed body of rules; it requires fairness in all the
circumstances, which include the nature of the jurisdiction or power
exercised and the statutory provisions governing its exercise.”
[32] In Allesch v Maunz5, Gaudron, McHugh, Gummow and Hayne JJ, referring to
the earlier decision of the High Court in Taylor v Taylor,6 said:
“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 that a
rehearing would work an irremediable injustice to the other side. Such an
injustice will often be capable of remedy by the imposition of terms as to
costs.”
[33] As to the principle to afford a hearing, Kirby J said at [35]:
“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 submissions 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”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed
into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the
common and statute law. Even the Almighty reportedly afforded Adam such an opportunity
before his banishment from Eden.” [footnotes omitted]
[34] Kirby J went on to address the criteria for setting aside a judicial order made in default of
appearance of a party in the following way:
“…Thirdly, it is desirable, as it seems to me, to treat the considerations applicable to such
decisions conceptually and to classify them as impinging upon the two criteria that have for
a very long time been viewed as critical to an affirmative decision to set aside a judicial
order made in default of the appearance of a party. These are:
(1) that an explanation, reasonable to the circumstances, is provided for the party’s
absence or other default; and
(2) that the party in default has a material argument which, if heard and decided on its
merits, might reasonably affect the determination of the rights and duties of the parties in a
way different from that in the impugned order.” [footnotes omitted]
BLJ v QLB [2018] QDC 14
• The appellant’s affidavit provided a reasonable explanation for his
failure to be heard at the pre-trial review
• The appellant's misunderstanding was understandable and it was
promptly brought to the attention of the court, soon after he learnt the
orders had been made
• The affidavit demonstrated he had an arguable case
• Re-hearing the matter might produce a materially different result
• No apparent prejudice to the first respondent if the interim orders remain
in place pending the determination of the hearing in relation to the final
orders
BLJ v QLB cont’d
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