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Executive Summary

Under the Peace and Good Behaviour Act 1982 (Qld) (the Act), a person may lodge a complaint (Complainant) with the Court with the Magistrates Court, if another person ‘threatens’ (Defendant):

  1. To assault or to do any bodily injury to the Complaint or any person under the Complainant’s care or charge; or

  2. To procure another person to assault or to do any bodily injury to the Complainant or any person under the Complainant’s care or charge; or

  3. To destroy or damage any of the Complainant’s property; or

  4. To procure another person to destroy or damage any of the Complainant’s property; or

And because of this threat, the Complainant is now in fear of the Defendant.

Additionally, a Complainant may also make a complaint if the intentional conduct of the Defendant directed at the Complainant has caused the Complainant to fear that the Defendant will destroy or damage any property of the Complainants.

If the Magistrate is satisfied that a threat has been made, which has caused the Complainant to be in fear of the Defendant, they may make an order that the Defendant be of good behaviour towards the Complainant.

For clarity, it is a ‘threat’ that gives rise to the ability to make a complaint under the Act, not actual conduct giving rise to assault or damage to your property. If the defendant (or someone on their behalf) has assaulted you or destroyed or damaged your property, then you should immediately contact the Police.

This article explores the ability to seek a peace and good behaviour order, as well as the threshold required to satisfy the Court that a peace and good behaviour order is warranted.

Peace and Good Behaviour Act

This section will detail the objects of the Act, the grounds for making a complaint under the Act, the Court’s ability to make an order and what happens if an order is breached.

Object of the Act

Section 4 of the Act sets out that the main object of the Act is to protect the safety, welfare, security, and peace and good order of the community from risks presented by people engaging in antisocial, disorderly or criminal conduct.

Other objects of the Act include:

  1. Disrupting and restricting activities of criminals; and

  2. Deterring criminals from establishing, maintaining or expanding a criminal network; and

  3. Ensuring premises in which criminals habitually gather are unable to be used for antisocial, disorderly or criminal conduct; and

  4. Ensuring premises habitually used by criminals, or connected with serious criminal activity, do not become excessively fortified; and

  5. Preventing intimidation of the public by criminals; and

  6. Protecting the community’s enjoyment of safe and secure neighbourhood environments and public spaces; and

The objects of this Act are achieved by:

1. Giving jurisdiction to the Magistrate to make order that:

a. Require a person to keep the peace and be of good behaviour; or

b. Prevent a person, or group of persons, from doing particular things in relation to a particular area or event, or particular premises; or

c. Prevent disorderly activities from taking place at particular premises; or

d. Require the removal of excessive fortifications from particular premises; and

2. Giving power to commissioned officers to make orders, of a duration of no more than 7 days, to prevent a person, or group of persons, from doing particular things in relation to a particular area or event, or particular premises; and

3. Giving powers to the police service to ensure the effectiveness of the orders mentioned above.

Making a Complaint 

Section 5 of the Act outlines that:

‘(1) A person (the complainant) may make a complaint to a justice of the peace that a person has threatened—

(a) to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or

(b) to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or 

(c) to destroy or damage any property of the complainant; or

(d) to procure any other person to destroy or damage any property of the complainant; and that the complainant is in fear of the person complained against (the defendant).

(2) A person (also the complainant) may make a complaint to a justice of the peace that the intentional conduct of a person (also the defendant) directed at the complainant has caused the complainant to fear that the defendant will destroy or damage any property of the complainant.

(2A) If the matter of a complaint under subsection (1) or (2) is substantiated to the justice’s satisfaction, and the justice considers it is reasonable in the circumstances for the complainant to have the fear mentioned in the subsection, the justice may issue—

(a) a summons directed to the defendant requiring the defendant to appear at a stated time and place before a court; or

(b) a warrant to apprehend the defendant and to cause the defendant to be brought before a court; to answer the complaint and to be further dealt with according to law.

(3) If the justice before whom the complaint mentioned in subsection (1) or (2) is made considers that the matter would be better resolved by mediation than by proceedings before a court, the justice may, with the complainant’s consent, order the complainant to submit the matter to mediation under the Dispute Resolution Centres Act 1990.

(4) In this section—

complaint means a written complaint made on oath.’

Under section 6 of the Act, a justice of the peace, may make cause to be made such inquiries and receive such evidence as the justice thinks fit, to substantiate the complaint.

Making of Orders

Section 7 of the Act sets out that:

‘(1) The court before which the defendant appears in obedience to the summons or is brought pursuant to the warrant, as the case may be, shall hear and determine the matter of the complaint.

(2) Without limiting any other evidence given by or on behalf of the defendant, the defendant may produce evidence that the complaint is made from malice or for vexation only.

(3) Upon a consideration of the evidence, the court may—

(a) dismiss the complaint; or

(b) make an order that the defendant shall keep the peace and be of good behaviour for such time, specified in the order, as the court thinks fit.

(4) The order made by the court may contain such other stipulations or conditions as the court thinks fit.’

To satisfy a Court to make an order under section 7 of the Act, the Complaint must meet the civil standard of proof, being on the balance of probabilities, in accordance with section 81 of the Act.

Offence for Breach of Order

Once an order has been made against the Defendant to keep the peace and be of good behaviour towards the Complainant, it is an offence under the Act to breach this order, pursuant to section 11 of the Act.

The maximum penalty for breaching a peace and good behaviour order is 100 penalty units (1 penalty unit is approximately $143.75) or imprisonment for 1 year.

Additionally, in accordance with section 12 of the Act, on conviction of a person for an offence under section 11 (breach of order), the Court may make a further order that the Defendant shall keep the peace and be of good behaviour for such time as the Court.

Case Summaries

Now that the Act has been considered, it is necessary to consider how the Courts have dealt with complaints under the Act, including the evidentiary threshold required to be satisfied to obtain a peace and good behaviour order.

Harvey v Walker 

A brief background of the case of Harvey v Walker [2016] QDC 180 is as follows:

  1. Mrs Walker and Mr Harvey were neighbours in Dalby;

  2. They do not get along and otherwise enjoy a benign disinterest in one another.

  3. Mrs Walker made a complaint under the Act, seeking an order against Mr Harvey.

  4. The matter was referred to mediation, wherein an agreement was reached for the construction of a fairly significant fence between their properties for the purposes of attempting to end the conflict between them.

  5. Mrs Walker subsequently renewed her complaint, which was heard by the Magistrates Court at Dalby.

  6. The Magistrate made an order against Mr Harvey that he be of good behaviour for a period of 6 months, with additional conditions including not to threaten Mrs Harvey.

  7. Mr Harvey appealed the Magistrates decision to the District Court by way of rehearing on the evidence given before the Magistrate on the grounds:

    1. that the learned Magistrate erred by failing to take into account the Briginshaw principle in applying the standard of proof of the balance of probabilities (ground 1);
    2.  that the evidence before the Magistrate was insufficient to prove to the correct standard the requirements under s 4 of the Peace and Good Behaviour Act (grounds 2 and 7);

    3.  that the learned Magistrate erred by accepting and taking into consideration unsworn and unserved statements provided by Mrs Walker (ground 3);

    4.  that the learned Magistrate gave insufficient reasons for the making of the order (grounds 5 and 6); and

    5.  that the learned Magistrate erred in proceeding with the hearing, in circumstances where Mr Harvey had been served with the summons only one business day before (ground 4).

    6. Relevantly, Bowskill QC DCJ stated at [9]:

      1. ‘One of the primary modifications, because proceedings on a complaint under s 4 of the Peace and Good Behaviour Act are civil, not criminal in nature, is that “the matter of the complaint” does not need to be proved beyond reasonable doubt. However, it is well established that, before an order can be made under s 6(3) of the Act [now 7(3)], the strength of the evidence necessary to establish the basis for an order under s 6 must take into account the seriousness of the allegation made against the person against whom the complaint is made.

      2. That is, given the serious nature of the matters referred to in s 4 – involving threats to do or to procure acts ordinarily associated with violence to person or property – in applying the civil standard of proof, balance of probabilities, the Magistrates Court must apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336. That does not mean the standard of proof varies – it remains for the Magistrate to be satisfied of the matters of the complaint, on the balance of probabilities – but the “clarity” r “cogency” of proof required, in order to induce, on the balance of probabilities, an actual persuasion of the mind as to the existence of the matters of complaint, needs to take account of the seriousness of the allegations. In a practical sense, that means the evidence may need to be clearer, or more cogent, than may be required in proof of less serious matters.’

  8. The Court concluded that the Magistrate failed to appropriately apply the Briginshaw principle (accepting ground 1), the Magistrate accepted and relied upon unsworn letters (accepting ground 3) and the Magistrate provided insufficient reasons, in particular, in terms of findings as to the matters of the complaint (accepting grounds 5 and 6).

  9. It followed that the Court in reaching the above conclusions that the appeal must be allowed, and the matters was returned to the Magistrates Court for a rehearing.

Briginshaw Principle

To provide context, the Briginshaw principle was established by the High Court of Australia in the landmark case of Briginshaw v Briginshaw (1938) HCA 34; 60 CLR 336. The Briginshaw principle can be briefly summarised as:

  1. The principle recognises that the strength of the evidence necessary to establish facts on the balance of probabilities may vary depending on what is sought to be proven.

  2. This means that whilst the balance of probabilities remains the standard of proof for civil cases, the degree of evidence or proof required may vary depending on the seriousness of the allegation.

  3. The more serious the allegation, the more the Court requires strict proof to support a finding of such a serious allegation (for example – fraud or sexual assault).

In applying the Briginshaw principle to a complaint under the Act, the case of Harvey v Walker demonstrates that the Magistrate must consider the strength of the evidence to substantiate the complaint and factor it against the seriousness of the allegation.

Tolhurst v Villan

A brief background of the case of Tolhurst v Villan [2018] QDC 263 is as follows:

  1. Ms Villan owned a unit within a Cairns complex and was a member of the body corporate committee for the 31-unit complex.

  2. Mr Tolhurst was a tenant residing within unit 2 and was engaged by the body corporate committee to provide onsite services including gardening, cleaning and pool maintenance.

  3. Ms Villan made a complaint under the Act that Mr Tolhurst had threatened her or caused her to be fearful that he would cause damage to her property.

  4. The Magistrate gave her decision ex tempore in favour of Ms Villan. In doing so, the Magistrate found that there was no relevant threat to found personal fear on the part of Ms Villan, but the Magistrate did find that Mr Tolhurst’s intentional conduct directed at Ms Villan caused her to fear that Mr Tolhurst would destroy or damage property of Ms Villan.

  5. An order was made against Mr Tolhurst, that he be required to be of good behaviour for a period of 12 months and not to threaten Ms Villan.

  6. Mr Tolhurst appealed the decision to the District Court on the following grounds:

    1. The learned magistrate erred in admitting the evidence of Greg John Waller in circumstances where: (a)The respondent failed to give any advance notice as to the evidence to be led of Mr Waller in accordance with the Practice Directions made 01/05/18, or at all; or alternatively (b)The proposed evidence of Mr Waller had no relevance to the issues to be determined.’  

    2. ‘Upon the learned magistrate finding that the actual physical assault by the appellant on the respondent did not constitute a threat of physical assault by the appellant upon the respondent, the learned magistrate erred in finding that the Complaint and Summons could have been substantiated to the Justice’s satisfaction because at the time of issuing the Complaint and Summons there was no evidence, or no proper evidence, before the Justice that the intentional conduct of the appellant directed to the respondent had caused the respondent to fear that the appellant would destroy or damage any property of the respondent; and’

    3. In the alternative, there was no basis, or no proper basis, for the learned magistrate to find that the intentional conduct of the appellant directed at the respondent caused the respondent to fear that the appellant would destroy or damage any property of the respondent.’

  7. Relevantly, His Honour Morzone QC DCJ set out the following principles to satisfy the threshold of making an order under the Act:

    1. ‘[24]“Threatened” is an ordinary English word derived from “threat”, which considered objectively, must be of such a nature and extent that an ordinary person might be influenced or made apprehensive of an intent or determination to inflict harm, in this context, by an assault or bodily injury, or to destroy or damage property. The threat may be expressed by words or conduct, but not implied. It does not matter if the threat does not specify the exact nature of the assault or bodily injury to be caused to the complainant (or under his care or charge), or the exact nature of the destruction or damage to be caused to his property.
    2. [25] For s 5(1) to be engaged the threats must be of the type necessary to ground a complaint, which must be related to either some assault or bodily injury of the complainant, or some destruction or damage to the complainant’s property. Mere fear without a threat is not sufficient; the threatening conduct must be probative of the circumstances instilling fear in the complainant of the defendant. And although some evidence of fear should prudently be included, in some cases, fear may be inferred by necessary implication from the nature of the threat viewed in the circumstances in which it was made.
    3. [26] In contrast, s 5(2) requires the jurisdictional pre-requisites of direct intentional conduct, and consequent fear for property. Whilst this provision has wider import (being wider than some threat) the defendant’s conduct must be shown to be intentional, directed at the complainant, and causative of the complainant’s fear that the defendant will destroy or damage the complainant’s property.
    4. [27] Section 5(2A) applies to both provisions whereby subjective fear is not sufficient. That provision imposes a further requirement that the justice must also “consider” it is “reasonable in the circumstances” for the complainant to have the relevant fear. This goes to the discretion to be exercised by the justice in deciding whether to issue a summons directed to the defendant. The exercise requires an objective test, and will include all the relevant circumstances, for example: the nature and extent of the threat or conduct; the relationship of the parties, likely contact and interaction; the risk of the feared outcome; and whether the fear is proportionate to the threat.’

8.    His Honour concluded that ‘It seems to me that, taken at its highest, the evidence does not meet the higher degree of certainty to be satisfied on the balance of probabilities to warrant the making of a peace and good behaviour order pursuant to s 7 of the Act.’

9.    His Honour made the following orders:

a.     Appeal allowed.

b.     Original judgment and orders made by the Magistrate be set aside.

c.     The complaint and summons by Ms Villan are dismissed.

d.     Ms Villan pay Mr Tolhurts costs of the Magistrates Court hearing and appeal assessed at $3,000.00 plus outlays of $613.80.

Sinclair v Lynch 

A brief background of the case of Sinclair v Lynch [2021] QDC 190 is as follows:

  1. Mr Sinclair and Mr Lynch were previously friends. At some stage the friendship sourced around the time Mr Lynch became friends with Mr Kennelly.

  2. Mr Lynch made a complaint against Mr Sinclair, seeking an order under the Act as a result of allege physical threats and very loud instances of public degrading and vilification.

  3. The matter proceeding to a hearing and at the conclusion of the hearing, the Magistrate made an order against Mr Sinclair (in favour of Mr Lynch) that he:

    1. Keep the peace and be of good behaviour towards Mr Lynch for a period of 12 months; and

    2. Not approach, enter or remain within 50 metres of Mr Lynch or Mr Kennelly.

  4. Mr Sinclair appealed the Magistrates decision to the District Court on the following grounds:

    1. Mr Lynch did not present any evidence that Mr Sinclair had made any threats therefore there were no legal grounds to commence the action.

    2. Mr Lynch lied to the Justice of the Peace when he took the original oath.

    3. The Magistrate erred when he failed to grant an adjournment for Mr Sinclair to obtain a transcript of evidence given before another court.

    4. Mr Lynch and Mr Kennelly lied when signing their affidavits and lied under oath in court.

    5. The Magistrate did not allow Mr Sinclair’s witness to give evidence and showed complete prejudice towards him.

    6. The Magistrate failed to state his findings of fact, how he applied the legal rules to the facts, and failed to allow evidence to be presented to the court that had a direct bearing on the truth and therefore the outcome of the case.

  5. His Honour Bowskill DCJ summarised the relevant law particularised in Harvey v Walker [above].

  6. His Honour considered the following:

    1. ‘[31] Unfortunately, the Magistrate’s decision is devoid of any reasons for concluding the making of an order was appropriate. There is merit in Mr Sinclair’s submission that the Magistrate failed to state findings of fact he had made, the law that he applied in reaching his decision and how he applied the relevant law to the facts as he found them to be. The Magistrate made no express findings in relation to the alleged incidents nor how the facts proved the elements under section 5 of the Act. The Magistrate should have made clear in his reasons how the evidence amounted to threats, or if not threats under section 5(1) of the Act, whether he was satisfied to the requisite standard that Mr Sinclair’s conduct was intentional and actually caused Mr Lynch fear of damage to Mr Lynch’s property under section 5(2) of the Act.

    2. [32] It is not clear what evidence, if any, the Magistrate considered to determine a good behaviour order should be made. It is also not clear whether the Magistrate considered either limb of section 5 of the Act.

    3. [33] What is undeniably clear is that the Magistrate has failed to give any reasons to support the exercise of his decision to impose an order for good behaviour.

    4. [34] An error of law will have occurred when the court which hears and decides this type of application does not provide adequate reasons. The constant challenge in a busy Magistrate’s court is to balance the need to administer justice expeditiously with the need to include reasons that support the Court’s decision.

    5. [35] I am satisfied the Magistrate erred by not providing any reasons for his decision to grant the order in the circumstances of the present case.’

  7. His Honour, in considering the above, concluded that ‘upon review of the evidence and giving full weight to the learned Magistrate’s views, I am not satisfied the evidence supports the Magistrate’s granting of the order.’

  8. His Honour subsequently allowed the appeal, set aside the order by the Magistrate and dismissed the complaint.

Key Takeaways

The key takeaway from these cases is that:

  1. The Court considers that a threat to assault or cause bodily harm or to destroy or damage a person’s property to be a serious allegation.

  2. Whilst the standard of proof is on the balance of probabilities, due to the seriousness of the allegation, the Court require strict evidence in support of the allegation pursuant to the Briginshaw principle.

  3. If you make a complaint and fail to provide strict evidence of the ‘threat’ or ‘intentional conduct’ and evidence of the resulting fear (mere fear without a threat is insufficient), then it is likely that your complaint will be dismissed.

  4. A person yelling abuse, obscenities or acting in an unreasonable manner will not give rise to a ‘threat’ sufficient to satisfy section 5 of the Act or the Briginshaw principle.

  5. If there was a threat, but there was no fear, or at least no fear, by the time the complaint was made, then it is likely that the complaint will be dismissed.

Conclusion

A peace and good behaviour order is available where a person has ‘threatened’ to assault or cause you any bodily harm (or someone under your care), to procure someone else to assault you (or someone under your care), to destroy or damage your property or to procure someone else to destroy or damage your property.

 In circumstances where there is an intimate or family relationship a protection order may be sought under the Domestic and Family Violence Protection Act 2012 (Qld), rather than making a complaint under the Act. Further, if the conduct has already occurred, whether it be that they have assaulted you (or someone under your care) or they have damaged your property, then you should immediately call the Police, as it would constitute an offence under the Criminal Code 1899 (Qld).

In our experience, the most common complaints we have seen have arisen between neighbours who have been in a dispute over other matters (i.e. fence dispute) or simply have had animosity between each other for some time. Often, there is no legitimate threat or intentional conduct as required under the Act and they are merely attempting utilise a complaint under the Act as they form the opinion that a peace and good behaviour would restrict or prevent the other person from maintaining the dispute or exercising their legal rights. This is not how a peace and good behaviour order work or its objective.

Even if a peace and good behaviour is obtained against the other person, it does not prevent them from exercising their legal rights. It only requires them to keep the peace and be of good behaviour for the specified period and to comply with any relevant conditions ordered by the Court. A breach of peace and good behaviour order is an offence under the Act, which could result in the breaching party be punished by way of a fine, or alternatively, if the breaching is persistent, then by imprisonment.

We have assisted various people in advising on, successfully obtaining and contesting peace and good behaviour complaints.

If you are considering a complaint under the Act or have had a complaint and summons issued against you and would like to discuss your options, then book in a free 15-minute consultation with our peace and good behaviour lawyers today.