36
Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019

Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

  • Upload
    others

  • View
    0

  • Download
    0

Embed Size (px)

Citation preview

Page 1: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

Building capacity: Domestic Violence Best Practice

Appeals of Protection Orders

22 May 2019

Page 2: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 3: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 4: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Keep safe – Content warning:

Community Legal Centres Queensland wants to ensure that community legal centre workers and others accessing these

training materials feel safe, and are able to access appropriate and timely help and support.

Some content in these training materials may be disturbing, upsetting or trigger strong/negative emotions for victims and

survivors of violence and trauma, and others.

Community Legal Centres Queensland respects your autonomy. If you feel triggered or upset by any of the content or

materials provided here, we encourage you to use your discretion as to whether you should continue reading, watching or

listening to the material.

You may also wish to access more information and resources, as well as professional support or advice from one of the

free and confidential organisations listed on our Keep Safe website page: http://communitylegalqld.org.au/keepsafe.

Page 5: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 6: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 7: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 8: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 9: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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

Page 10: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 11: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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."

Page 12: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.”

Page 13: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 14: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 15: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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

Page 16: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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

Page 17: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 18: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 19: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 20: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 21: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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).

Page 22: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 23: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 24: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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

Page 25: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 26: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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

Page 27: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 28: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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

Page 29: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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

Page 30: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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

Page 31: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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

Page 32: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.

Page 33: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

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.”

Page 34: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

[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

Page 35: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

• 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

Page 36: Building capacity: Domestic Violence Best Practice Appeals ... … · Building capacity: Domestic Violence Best Practice Appeals of Protection Orders 22 May 2019. Acknowledgement

Presentation Title and Footer Information (change on Master page) | 2