Thanks for joining me for another webinar delivered to you by the Justices of the Peace Branch.
My name is Belinda and today we're going to be talking about issuing a complaint and summons under the Peace and Good Behaviour Act 1982.
Don't worry if you've never been able to issue one of these documents before, this is what this webinar is here to help you with.
I hope you enjoy it and if you have any questions, we have our contact details at the end. The best resource for any of the documents you witness is without a doubt your handbook.
In chapter 5 you will find information that will help you determine whether or not the complainant has sufficient evidence to prove a threat has been made against them and if you should issue a summons to appear in court. Or if the matter is serious enough, a warrant for the defendant's arrest.
Another handy resource is this 2-page fact sheet from the Queensland Courts. While it has been created for the complainant or the person considering to apply for a peace and good behaviour order, you may find this of interest. And of course, the legislation itself is the main resource these documents have been created from.
The legislation, the Peace and Good Behaviour Act 1982 does have several objectives. The main objective of this Act is to protect the safety, welfare, security, and peace and good order of the community. This objective (and the other objectives) are achieved by giving jurisdiction to the courts to make certain orders that require a person to keep the peace and be of good behaviour in the community.
The Act also allows for a person to make a complaint to a Justice of the Peace to have a peace and good behaviour ordered issued. And this is what the focus of today's webinar is - a peace and good behaviour order and what you need to consider before you witness a complaint under this Act and issue a summons, or in a rare occasion a warrant.
But before I talk about what you need to consider in a complaint to issue a peace and good behaviour summons or warrant, let me tell you what a peace and good behaviour order is.
As mentioned, there are many objectives under the peace and good behaviour act and there may be times when a person feels threatened by others in the community, especially when this person has assaulted another person, or damaged their property, or has threatened to do either of these things.
In responding to this type of behaviour will depend on the type of relationship the person has with the person by whom they feel threatened by.
And when I talk about assault, assault means a person who strikes, touches, or moves, or otherwise applies force of any kind to another person without their consent.
Now a peace and good behaviour order is a physical order issued by the Magistrate's Court requiring that person to stop any activity that threatens to cause harm to another, their property or threatens another person under that person's care or charge. It orders that person to be of good behaviour and keep the peace for a specified period of time or as a magistrate sees fit. But before the magistrate will issue a peace and good behaviour order, the court must be satisfied that the respondent (that is this person who is allegedly responsible for the threatening behaviour) has committed, or threatened to commit, an act of wilful injury or wilful damage against the other person (known as a complainant) or that they have procured another person to do this.
And it's this information that must also be included in the elements of the complaint before you can issue a summons or a warrant. It is important to be aware that if a person has a problem with someone with whom they are in a relationship with or have been in a relationship with as defined under the domestic and family violence protection act, then a peace and good behaviour order would not apply in this situation.
So let's talk about now who an order may be made against.
The type of order a person should apply for depends on the type of the relationship that they have with the other person. It's not uncommon for a person to apply for the wrong type of order, this is why it's very important a person should seek independent advice if they're not sure if a peace and good behaviour order is the type of order they require. If the person or the complainant is confident that the application should be brought to the courts under the Peace and Good Behaviour Act then the person who is threatening them should be one of the following:
- their neighbour
- a housemate
- workmate or any other associate
As noted on the slide this is not an exhaustive list the person should be encouraged to seek advice before lodging their final complaint with the courts. So, we've had a look at when a person may apply for a peace and good behaviour order, let's take a look at the circumstances when a person should not be applying for a peace and good behaviour order.
If the complaint relates to a person having a relevant relationship with the defendant that is defined by the Domestic and Family Violence Protection Act 2012, they then should instead apply for an application for a protection order.
Relevant relationships include:
- Spousal relationships, that is relationships between people who are, or were married, living together in a de facto relationship.
- An intimate personal relationship, that is a relationship between people who are or were engaged people, who dated, and although
not living together their relationship was so enmeshed that the actions of one affected
- Family relationships, that is relatives related by blood or marriage, or those regarded as a relative; and
- Informal care relationships. Relationships between a person and an unpaid carer who relies on another person because of a disability, illness or impairment, for their day-to-day activities.
If one or more of these relevant relationships apply, then the complainant should be directed to the nearest Magistrates Court and brought under the Domestic and Family Violence Protection Act 2012. You can find out more information about witnessing an application for a protection order in chapter
4.4 of your handbook - Witnessing applications under the Domestic and Family Violence Protection Act 2012.
Let's take a look at the complaint process.
On your screen is the form 1 complaint, made and authorised by the Peace and Good Behaviour legislation. When considering a complaint and before you can issue a summons or a warrant, the complaint must contain certain information.
And it is this information you must be satisfied with, that it meets the legislative requirements.These legislative requirements involve the complainant proving to the court satisfaction, and to you, that someone has threatened to assault, or physically injure them, or someone under their care.
Have someone else assault or physically injure them, or someone under their care. Or destroy or damage any of the complainant's
property or have somebody else destroy or damage the complainant's property. The complainant must also show that they are in fear of the defendant.
If the evidence contained in the complaint are not ones of threats to carry out any, or all of the above, but is a mere annoyance, then the court may not make an order under the act and you should not be issuing a complaint under the Peace and Good Behaviour Act, as one of the principal legislative rounds has not been established or proven.
Let's move on now to how you should consider a complaint before issuing a summons or a warrant. A person seeking to have a court issue a Peace and Good Behaviour order, first needs to approach a justice of the peace to have their complaint considered.
When this happens you should be issued with two forms:
1.the complaint itself, Form 1 (which we briefly had a look at on the previous screen)
2.and then the summons - Form 2, also under the peace and good behaviour legislation
It's also important to be aware that only one complainant must be listed per complaint. That is if a husband and wife have a same complaint about assault or threats from another person, then they must each complete their own complaint and summons form. So, you might be wondering what could be examples of threatening behaviour that you could consider under the peace and good behaviour act?
On your screen are some examples. The first one is courtesy of the Caxton Legal Centre. The Caxton Legal Centre publishes a number
of self-help kits and fact sheets to practically assist people if they face certain legal issues. The second example is purely fictional, and I’m going to give you a few moments now to read over what could constitute as a threat or threatening behaviour. Once you are satisfied that there are grounds in the complaint of threats assaults or threatening behaviour, don't forget that the complainant must also prove their reasons and a statement as to why they are in fear of the defendant.
On your screen is just such an example. The complainant may also include an order for the court to consider like the one on the bottom half of the screen being displayed. But it is up to the court to determine the length or the period of time the order will be issued and any other stipulations it sees fit.
Before we take a look at how to witness and issue or summons. Did you know you do have another option under the Peace and Good Behaviour Act 1982?
A justice may instead of issuing a summons or warrant consider the matter to be resolved by mediation. This can only occur with the complainant's consent. So when would it be a good time or an option to recommend mediation?
Perhaps after reading through the complaint, which is a mandatory duty, you are not satisfied that there are grounds of threats, assaults, or threatening behaviour. Or perhaps the complainant has not proven to you that they have a genuine fear of the defendant and that their complaint relates to one of mere annoyance.
For example, the complaint relates to the enjoyment or disruption to the peace and quiet on their property. This is when you can refer the complainant
to mediation and ask them to contact their nearest dispute resolution centre. While this is a free service, remember that complainant must consent to he mediation. If though the complaint has no grounds under the peace and good behaviour legislation you cannot issue it, and I will show you next how to deal with a complaint form in this situation.
Let's take a look now how to witness and issue a summons.
If you're unsure or you have never issued a summons before especially, under the Peace and Good Behaviour Act you should refer to chapter 5 of your handbook specifically 5.2.
When presented with these completed forms check for the correct amount of copies. You should have one original complaint, one original summons, and then two copies of each. The reason being is that the original will be filed with the court and that the complainant will receive a copy and then the defendant will also be served a copy.
You can now ask the complainant for some form of identification and then immediately place them on oath or affirmation. This means if you need to ask any questions about the complaint to satisfy yourself that there are grounds to issue a summons, this can be recorded as part of the official witnessing transaction, just remember to keep these records in your logbook.
Now it's time to read the complaint section and this is a duty you must complete. Check the complaint section carefully, remember you must be satisfied there is justification to issue a summons a warrant because a threat has been made, that the complainant is genuinely afraid of the defendant, and that the complaint has been made within the last year of the last threat.
If however the complaint does not have the grounds required under the legislation of the Peace and Good Behaviour Act or the Peace and Good Behaviour Regulation, then you should not be issuing the summons or the warrant.Instead, you should cross out the complaint form and note your reasons on the form and then refer the complainant to the nearest magistrates court to ask for the registrar. Don't forget make a note in your logbook.
If though you are satisfied that the complaint is justified, that is the complainant has genuinely proven to you that they are afraid of the defendant and that a threat has been made, or they have been assaulted, then you can have the complaint sign the complaint form.
Do remind them they are under oath; you would then witness the complainant’s signature on the form by affixing your seal of office and entering your registration number and name.
Now these are mandatory requirements under the Justices of the Peace and Commissioner for Declarations Act 1991 and the Peace and
Good Behaviour Regulation 2010. And now we can issue the summons.
In the case of issuing a summons under the Peace and Good Behaviour Act, you do have an additional duty. You are required to contact the Magistrates Court to arrange a mention date, or a court date.
Be careful not to choose it yourself, as courts do schedule certain types of matters on certain days and dates.
The mention date is when the complainant and defendant will first appear in court before a magistrate to hear the matter. Once you have obtained the mention date, insert it into the summons then complete the remaining parts of the document and check it thoroughly. Ensure it gives the full name and address of the complainant, and the basis for the complaint, is dated the day you issue it, gives the full name and address of the defendant (the person being served), it also must show the date time and place of the court hearing.
This is important otherwise the defendant may not appear in court.
Then you must sign the summons, affix your seal of office and enter your registration number and name. Again, this is a mandatory requirement under
the justices of the peace and commissioner for declarations act and the peace and good behaviour regulation.
Jump in the screen – fix this. Now that you have witnessed the complaint and issued the summons, you have a final task for your client - giving instructions on how to file the documents. Inform your client that they must lodge the complaint and summons with the magistrates court and once filed, serve a copy of the complaint and summons to the defendant.
Then instruct them that once the defendant has been served, the oath of service (which is found on the bottom or on the reverse side of the summons) must be witnessed and lodged with the magistrates court. This is very important, as it demonstrates that the defendant has been served a complaint and summons to appear in court. If your client is unsure on how to arrange service, they can seek procedural advice from the magistrates registry then filing the documents.
Now it's over to you and your final task of the witnessing transaction - record keeping. Before I go through the details that you should be recording, I just wanted to let you know that you have no authority in this situation to request, make, or retain a copy of the complaint and summons, or a warrant you if have issued it under this act. What we do recommend is you recording:
- the date and time the complaint and summons was witnessed,
- the type of complaint and the grounds for issuing the summons,
- the details of the complainant,
- the type of identification sighted (remember please do not record any personal identifying details such as a driver's license or passport
- then you can insert the location of signing and
- most importantly if you relied on questions that you asked the complainant to satisfy you there were grounds to issue a summons
or warrant, you should make a note of the questions and any answers given.
If you're unsure on how to do this or any other aspects of issuing a complaint and summons under the Peace and Good Behaviour Act, don't forget that we're here to help you.
Here's our contact details and please make a note of them you can contact us anytime about this, or any other witnessing inquiry that you may have.
Well, thank you I hope you enjoyed that presentation and it did give you some information about how to consider a complaint under the peace and good behaviour act and when you should be able to issue a summons or warrant. Don't forget there are specific grounds that are required by legislation if you're unsure it's best not to witness these documents give us a call that's what we're here for thanks again for joining me I’m Belinda and until next time goodbye.