MAC v MMV[2009] QDC 276

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE IRWIN

No 2744 of 2008

BRISBANE

DATE 20/05/2009

DECISION

HIS HONOUR:  On the 30th of September 2008, a protection order under the Domestic and Family Violence Act 1989 ("the Act") was made by an Acting Magistrate in the Magistrates Court at Sandgate against the appellant as a respondent in favour of the respondent as an aggrieved person.  This is an appeal pursuant to Part 5 of the Act against that order.  The appeal is characterised as being against the whole decision and consists of 30 grounds with further grounds being added by the appellant in his subsequent written submissions. 

However, not all of these grounds are relevant to the decision that I have to make at this stage of the proceedings.  This is because on 10March2009, Brabazon DCJ directed that two matters be dealt with as preliminary issues.  These are the allegations of bias and need for additional evidence which has been raised by the appellant. 

I indicate for completeness that these issues initially came before me on the 17th of April 2009.  I adjourned them until the 15th of May 2009 because the appellant, whose first language is not English, appeared before me, as he did before the learned Acting Magistrate, unrepresented.  It was confirmed that he had an outstanding unresolved application for Legal Aid.  I considered that it was in the interests of justice and the expeditious conduct of these proceedings that he be afforded the opportunity to be represented.  However, I have since been advised by the appellant that this application was unsuccessful. 

Although the legal representation of the appellant would have facilitated the determination of this appeal, I am satisfied from my communications with him and reading the transcript of the proceedings before the Acting Magistrate that he has sufficient understanding and competence with the English language as to be able to represent himself in these proceedings. 

Like many unrepresented litigants, he had no concept of asking questions as opposed to making statements in the Magistrates Court and this detracted from the presentation of his case there.  However, he had no difficulty in expressing his case while giving evidence-in-chief, which consisted of a lengthy uninterrupted three-page monologue concerned with the past relationship that he had with the respondent, their daughter, and their sons, in which he contradicted the allegations which had been made in evidence by his wife and daughter. 

This included him saying everything they said is not true, he had never threatened the respondent, he took care of their children and always supported her, he helped the respondent with study, he denied that he tried to kill his son, M, and he said he had never punished anyone. 

At this stage, the Acting Magistrate intervened and asked him to tell him something that relates to the application.  In response he was able to say money was spent on food, clothes and everything for the family and not for himself.  He said that there was no proof of domestic violence because nothing happened in the Court and the reason for the application being brought was because of pending Family Court proceedings.  This responded to a number of matters raised in the evidence of the respondent and their daughter, including the central allegation about an incident in the Supreme and District Court building on the 5th of March 2008, about which they had given evidence. 

In cross-examination he appeared to understand the questions.  He emphasised that he did nothing wrong.  He denied locking one of his sons in the garage without any food or hitting his children or making the threatening phone calls alleged by the respondent as having been made to her.  He frequently said it was for the respondent to prove her case.  He agreed with the Acting Magistrate at page2 of the transcript that he had a reasonable grasp of the English language.  The Acting Magistrate also observed at page17 that: "You've been able to speak in English quite well up to now.  You've had no problem with understanding." 

The appellant told MsGuilfoyle, who represented the respondent, during cross-examination that, "I can speak in Spanish, English.  There is no problem."  That appears at page 41 of the transcript.  This is also confirmed by the manner of expression in the written material which has been filed by him for the purpose of this appeal and which articulates his propositions more clearly than his oral presentation. 

The protection order, which is of two years duration, will have been in force for eight months on the 29th of May 2009, which is nine days from today.  Therefore, it is important that this appeal be heard and determined expeditiously.  It was in the interests of justice that this be done two days ago when the matter came back before me.  The relevant grounds of appeal which can be interpreted to raise the issues identified by Brabazon DCJ, expressly or impliedly, are as follows:

In relation to the additional evidence issue, notwithstanding that under section 65(1) of the Act this appeal is by way of rehearing on the record, the appellant seeks a hearing denovo and on the hearing of that appeal seeks to adduce fresh evidence.  The power for this Court to order that additional evidence be heard on this appeal arises from section65(1), adding that it is, "Under the rules applying to the District Court". 

This requires reference to Chapter 18, Part 3, of the Uniform Civil Procedure Rules, which, in Rule 783, provides for the procedure for appeals to the District Court from the Magistrates Court.  Rule 785 has the effect that Rule766(1)(c), which relates to the Court of Appeal, applies in these proceedings.  As a result, this Court may, on special grounds, receive further evidence as to questions of fact; either orally in Court, or by affidavit or in another way.  Under rule 766(2), further evidence may be given without special leave unless the appeal is from final judgment and, in any case, as to matters which have happened after the date of the decision appealed against. 

In an affidavit filed in these proceedings consequent on JudgeBrabazon's order on the 30th of March 2009, the appellant states that the respondent's solicitor in the Magistrates Court proceedings must be called as a witness on the hearing of the appeal.  The reasons for this are set out in the affidavit as follows: 

The majority of this affidavit consists of legal submissions in support of the appellant's ultimate contention.  Although MrFenton of counsel, who appears on behalf of the respondent, conceded on the first day that if I find the ground of bias to be substantiated, the appeal should be allowed and the order of the Magistrate set aside.  Having regard to section66(1)(a) of the Act, which, in the event I allow the appeal, permits me to discharge any order to which the appeal relates as I consider appropriate, on reflection when the matter was argued before me on the second day, he submitted correctly, in my view, that in the circumstances I would also be entitled to exercise my discretion under section66(1)(b) of the Act to make such order or decision that I consider should have been made by the Magistrates Court. 

On 30September 2008, both parties appeared before the Acting Magistrate.  Only the respondent was represented.  Her legal representative was Ms Guilfoyle.  At the commencement of the proceedings, the Acting the Magistrate dealt with two applications for protection orders that the appellant had made on his own behalf.  This occurred immediately before any evidence was placed before the Court.  The manner in which these were dealt with is described in the judgment at page5 at follows:

"At the start of the proceedings, I, as a result of submissions or admissions made by [MAC], I have withdrawn one of those applications and [MMV] has consented to an order being made against her with respect to [MAC's] application, essentially based on the fact that she does not really want to have anything more to do with him.  [MAC] himself has said that he is now free for the first time in a long time.  He wants to do his own thing, but he appears to still wish to exercise a very great degree of control, and that is inappropriate control, with respect to [MMV]. 

The reference to MMV is to the respondent.  I will return to the relevance of the manner in which the Acting Magistrate dealt with this issue when I analyse the issue of alleged bias in this case. 

During the following hearing on the respondent's application, the respondent and their daughter, SMCV, gave evidence.  SMCV was allowed to give evidence before the respondent and in the respondent's presence on the basis explained by MsGuilfoyle that:  "She speaks better English and she'll be able to enhance the Court's time with regards to the family's situation."  Although the Acting Magistrate commented that this was unusual, he permitted it in the circumstances.  While SMCV gave evidence in English, her mother gave evidence through an interpreter.  Both were cross-examined in short by the appellant.  His cross-examination was limited because of his inability, as identified by the Acting Magistrate, to ask questions as opposed to making statements.  As a result, he did not put his case to either witness to contradict their evidence and to give them an opportunity to respond.  The appellant also gave evidence and called one witness.  This witness was also called before the appellant gave evidence.  The witness was MrHayman, the Building Services Coordinator for the Supreme and District Court.  The appellant said he'd prefer to call him first and the Acting Magistrate allowed this as: "He's probably got other work to do."  The point of this evidence was an attempt to counteract the respondent's evidence about the incident which she alleged occurred at the Court on the 5th of March 2008 involving her and their daughter, SMCV.  Her evidence was that they went to the Court to hand up some documents and he followed them to the toilets and knocked on the door.  He is said to have asked: "Why didn't you bring the children home?"  She gave evidence that she told him they were sick and that he became angry and called her a liar.  She said that he had scared her.  The appellant elicited from Mr Hayman that there was no domestic violence incident reported to him or his staff that day.  The appellant was told by the Magistrate to stop making statements. 

With the assistance of an introductory question from the Acting Magistrate, the appellant made a statement about his position for approximately four pages of the transcript, after which he was cross-examined by Ms Guilfoyle.  I have previously made reference to this.  As I have mentioned, the evidence that he gave at this time did contain contradictions in general terms of the evidence of the respondent and their daughter.  The appellant and Ms Guilfoyle then addressed the Acting Magistrate.  Although the appellant's submission was limited to a statement that: "They failed to prove that domestic violence against me.  It never happened.  There is no proof."  Ms Guilfoyle made a short submission after which the Acting Magistrate decided that the respondent had satisfied him that the elements necessary to make the protection order that she sought had been established.  In doing so, he correctly identified those elements as follows:

1. That a domestic relationship in the form of a spousal relationship existed between the appellant and the respondent.
2. That an act of domestic violence had been committed against the respondent, who was the aggrieved. 
3. That the appellant was likely to commit an Act of domestic violence again. 

He correctly stated that he had been satisfied of this on the balance of probabilities.  He also correctly stated this three-pronged test, as he described it, to the applicant while also explaining to the appellant how the proceedings were to be conducted.  The Acting Magistrate correctly identified that there was no doubt that the first limb had been satisfied.  There was never any issue about this.  He was satisfied that the domestic violence had been committed on the basis of intimidation or harassment.  This conclusion was based on the previous domestic violence order that the respondent had against him until September 2007.  This order was mentioned during the course of the evidence; the evidence given before him; and the behaviour of the respondent before him.  I refer to page 4 of his decision where he said:

"I am satisfied on that ground that domestic violence has been committed against the aggrieved, not only based on that previous order but on the evidence given before me and the behaviour of the respondent before me." 

The behaviour of the appellant that he referred to was that he had subjected the respondent to a continual stare while she was speaking, while he did not subject his daughter to the same scrutiny.  The Acting Magistrate then said at page5:

"I'm satisfied on the balance of probabilities that domestic violence has been committed and that has been proven to me by the fact of the previous domestic violence order that was made and not varied or revoked, and also the attitude taken by [MAC] in this Court today, that attitude which clearly seemed to be one of intimidation or harassment." 

It is highly relevant to the decision that I have to make that the basis on which he was satisfied that the appellant had committed the act of domestic violence was that he committed an act of intimation or harassment, which is paragraph (c) of the definition of "domestic violence" within section11(1) of the Act.  Paragraph (e) of that definition extends this to the threat to commit such an act. 

He made reference to this on a number of other occasions in his judgment.  For example, at page8 with reference to the incident at Court, he said:

"But [MAC] has given no evidence as to why he was there, and that is probably another reason for intimidation and harassment, but he simply has gone there, it appears, to ask [SMCV] why it is that she did not bring the children there.  [MMV] and [SMCV] then left and went home.  They did not want to make a fuss about anything.  That is a further example of the under the thumb attitude that they had existed under for so long.  They do not with to make a fuss about anything, do not wish to create a scene and they simply left.  That to me is again further proof of harassment and intimidation of [MMV] certainly by [MAC]."

At page 9 he said:

"I am satisfied that domestic violence exists between the two persons, that an act of domestic violence has been committed and I specify an actual fact, paragraph(c) intimidation or harassment of the other person." 

He also said:

"There is certainly intimidation or harassment or a threat to commit that intimidation or harassment."

The incidents which were relied upon as happening after the expiration of the previous protection order, and as being central to the alleged intimidation or harassment, were the alleged incident at the Court and a number of phone calls that the appellant allegedly made to her. 

The evidence about the phone allegations was that he phoned her all the time to see if she would let him come to the house again and be given another chance.  She said, "No", and he used to get angry and say she was a prostitute.  For completeness, I observe that the other aspect relied upon to constitute domestic violence after the expiration of the previous order, was that he wanted to kiss her and she wouldn't let him and he asked if she detested him. 

As to what constitutes intimidation or harassment, I apply the decision of McGill DCJ in Bottom –v– Rogers [2006]QDC80.  At paragraph[18], hisHonour there said that:

"Intimidation refers to a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour."

I add that my interpretation of this is that the person who was alleged to have engaged in the intimidation, or harassment for that matter, must have engaged in the conduct for the purpose of influencing the other person's behaviour.  I refer to the examples in the Act which all involve an element of deliberateness and the decision of Dowse-v-Gorringe [2004]QDC477.  There can be a single incident of conduct which amounts to intimidation.  Regard must be had to the subjective state of mind of the person alleged to have been intimated.

As was said in Dowse-v-Gorringe, something which does not in fact intimidate could not amount to intimidation.  Harassment, on the other hand, involves a repeated or persistent form of conduct which is annoying or distressing, rather than something that would incite fear.  In either case, the matter needs to be of some significance to qualify as domestic violence, bearing in mind the other elements of the definition and the examples that are given for paragraph(c) of section 11(1) of the Act. 

It is against this background that I turn to address the first issue of bias.  Although the defendant's application could be interpreted as involving an allegation of actual bias by the Acting Magistrate, there is no evidence before me to support such a proposition.  Notwithstanding this, I consider that this matter can be resolved by determining the question of whether, in the circumstances of this case, the appellant has established a reasonable apprehension of bias on behalf of the Acting Magistrate.  This question is one of possibility, which is real and not remote, and not probability. 

In Keating -v- Morris [2005] QSC 243, Moynihan SJA at paragraph 39 applied the decision of the High Court of Australia in Ebner -v- Official Trustee (2000) 205CLR337 at 345 at paragraphs 6 to 8 of the judgment of Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ.  Referring first to paragraphs 6 and 7, their Honours said:

"Where in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a Judge (or other judicial officer or juror), as here, the governing principle is that subject to qualifications relating to waiver (which are not presently relevant) or necessity (which may be relevant to the second appeal) a Judge is disqualified if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.  That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the Tribunal be independent and impartial.  It is convenient to refer to it as the "apprehension of bias principle".

7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle that the Tribunal be independent and impartial.  So important is the principle that even appearance of the departure of it is prohibited lest the integrity of the judicial system be undermined.  There are, however, some other aspects of the apprehension of bias principle which should be recognised.  Deciding whether a judicial officer or juror might not bring an impartial mind to the resolution of the question that has not been determined, requires no prediction about how the Judge or a juror will in fact approach the matter.  The question is one of possibility, real and not remote, not probability.  Similarly, if the matter has already been decided, the test is one that requires no conclusion about what factors actually influenced the outcome, no attempt need be made to enquire into the actual thought processes of the Judge or juror."

This is in accordance with the earlier decision of the High Court in Webb -v- The Queen (1994) 181CLR41.  In Aronson, Dyer & Groves on "Judicial Review of Administrative Action" 2009, at 655, it is said that an apprehension can be reasonable, even if only some rather than all reasonable people hold it.  The Court in Ebner also held at paragraph8:

"The apprehension of bias principle admits of the possibility of human frailty.  Its application is as diverse as human frailty.  Its application requires two steps.  First, it requires the identification of what it is said might leave a Judge or juror to decide a case other than on its legal and factual merits.  The second step is no less important.  There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.  The bare assertion that a Judge or juror has an interest in litigation or an interest in a party to it will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated.  Only then can the reasonable of the asserted apprehension of bias be assessed."

Mr Fenton places particular stress on the two-step process that is described in that paragraph.  As MoynihanSJA said in Keating -v- Morris:

42. The Court's task is to determine an observer's view based on the evidence, rather than to reach its own view.  The test is an objective one.  The subjective apprehension by a party or individual is irrelevant. 

43. It comes down to whether the Court is satisfied that the circumstances are such as to give rise in the mind of a fair-minded and informed member of the public or party, a reasonable apprehension that the decision-maker's mind is so prejudiced by conclusions already formed that the conclusion will not be altered irrespective of the evidence or arguments put forward.

44. The relevant consideration is that the decision will not be seen to be impartial, rather than it will be adverse to a party.  The test recognises that decision-makers may expose provisional views for debate and takes into account the personality and disposition of the investigator.  Some may be more robust than others." 

Aronson, Dyer and Groves at 658 suggest that the reasonable apprehension of a possibility of bias must be established on the balance of probabilities.  This is the standard of proof that I apply in the present case.  The fair-minded lay observer is both objective and reasonable and will not consider conduct that is alleged to support a claim of bias in isolation, but will base their opinion on a fair assessment of the Judge's conduct in the context of the whole trial, including reading the whole of the transcript and the reasons for the decision of the lower Court.  As will become apparent, this is the approach that I have adopted to the decision that I make in this case. 

At 663 of Aronson, Dyer and Groves, the observation is made that the fair-minded lay observer is a lay person rather than a lay litigant.  As I have said, the Acting Magistrate's decision that he was satisfied on the balance of probabilities that the appellant had committed an act of domestic violence, was that he had committed an act of intimidation or harassment as I have defined it, or at least threatened to do so. 

Considering this in the context of the whole trial, including reading the whole of the transcript and the reasons for the Acting Magistrate's decision, the starting point is how he dealt with the two applications for protection orders that the appellant had lodged as an aggrieved person against the respondent.  It was appropriate for the Acting Magistrate to address these applications at this stage of the proceedings, because if either, or both, were contested by the respondent, they may have been cross-applications; the facts and issues of which were inextricably interwoven with the facts to be determined and the issues to be resolved as a result of the respondent's application before the Acting Magistrate.

It appears from the transcript that the first of these two applications was lodged by the appellant in the Sandgate Magistrates Court seeking a temporary protection order on the 6th of May 2008, although some reference was also made to the 5th of May 2008.  This was mentioned again before that Court on the 3rd of June 2008. 

The second application appears to have been made on the 28th of July 2008 to the Brisbane Magistrates Court.  No temporary order was made in respect of it and it was transferred to Sandgate.  The appellant had also not received a temporary order in his favour upon the initial Sandgate application because, after addressing some issues about the need for an interpreter during the respondent's evidence, clarifying that the appellant was contesting her application and that the respondent would consent to a protection order being made against her without admissions, the Acting Magistrate said at page 5 of the transcript and before any evidence had been called:

"We also have the other application that was lodged by [MAC] in Brisbane which was mentioned on the 28th of July 2008, which clearly appears to be shopping around because he didn't get the order he needed or he wanted in this Sandgate Court." 

After referring to the terms in which the protection order was sought, the Acting Magistrate asked the appellant whether he was proceeding with both applications.  When the appellant answered in the affirmative, he was told he could only have one or the other but not two applications, and the Magistrate said again, "You have been shopping around."  He then said:

"Clearly you have - the Court did not allow your application for a temporary order on the 6th of May, so, again on the 3rd of June.  So you've gone into Brisbane on 28July and asked for a thing there where the Magistrate, quite properly, made no temporary order again and transferred the matter back to Sandgate.  So which application are you proceeding with [MAC]?  The one you originally filed in Sandgate or the one later filed in Brisbane?" 

The respondent replied that he wished to proceed with the first application and commenced to add an explanation in terms: "Because the latter one was about the breach she reported."  At this stage, the Acting Magistrate intervened and asked him to please answer his questions and told him he wouldn't tolerate any mucking around in this Court at this stage. 

It is clear, and, in my view, it would be clear to a fair-minded and informed member of the public or lay-observer, to use the terminology from the decisions that I have referred to, that the Magistrate had taken an adverse view at the commencement of the proceedings of the purpose for which the appellant had filed the two applications, and did not give him the opportunity to complete his explanation as to what this purpose was.  It was not a statement of a tentative view, but it was a direct and final view which did not permit the opportunity of explanation by the appellant. 

I do not agree with MrFenton's submission that this observer would consider that the Acting Magistrate was simply disposing of the Court's business in a commonsense manner because there would be no point in making two orders with the same conditions.  MrFenton also submits that the allegations of shopping around are literally true.  The appellant said in reply that the applications relate to two different complaints; one brought in Brisbane because of where he lived and the other brought as a cross-application in Sandgate in response to the respondent's application. 

At the end of the day, it is the manner in which the Acting Magistrate categorised his conduct which might cause the reasonable apprehension of bias in the mind of the observer, particularly when considered in conjunction with the next factor.  Having made the order in favour of the appellant in respect of the application he was proceeding with, and noting that the other file would be withdrawn, the Acting Magistrate commenced to explain to the appellant how the proceedings would unfold.  He told the appellant that the respondent will call evidence to support her application, that she would no doubt give evidence herself and may call other people subject to his right of cross-examination with respect to any of the matters raised. 

The Acting Magistrate described this as:

"This is a question and answer time.  When you do that because you have to, you are attempting to tell me or show to me why it is that there is no domestic violence and why an order should not be made."

It was fair that the Acting Magistrate explained these issues to the appellant, although taken in isolation the last comment may suggested that the onus was on the appellant rather than the aggrieved person.  However, this was corrected in the course of his subsequent remarks and the judgment itself. 

What is of concern, however, is that the Acting Magistrate immediately went on to say:

"You will not be permitted under any circumstances to harass [MMV] and I will stop you if you do so." 

The appellant replied "Yes, yourHonour", after which the Acting Magistrate said: 

"And if you do that, of course, that is direct evidence that you are harassing her and an order will be made against you without further consideration, because you will be showing that you will be harassing her in the courtroom and it's fairly likely its going to happen outside." 

The appellant replied, "Yes, thank you," followed by the Acting Magistrate saying to him:

"So it's in your best interests to conduct yourself properly in this matter and professionally because you are the cross-examiner." 

This was clearly a reference by the Acting Magistrate to section 21 of the Evidence Act 1977 as pointed out in MrFenton's written submission.  Subsection21(1) permits the Court to disallow a question put to a witness in cross-examination or inform a witness a question need not be answered if the Court considers it to be improper.  Section21(4) defines an improper question as one which is harassing.  It also includes intimidating as well as offensive, oppressive or repetitive. 

By virtue of section21(3) and (4), without limiting the matters which the Court can take into account in determining whether a question is improper, these matters include relationship to any party to the proceeding.  Although that power may arise for exercise in a proceeding involving an application for a domestic violence protection order, given the nature of the relationship between the parties, such as having been in a spousal relationship, it does not arise for consideration until such a question is asked. 

In particular, it does not arise for consideration at the commencement of the proceedings.  There was no reason to assume at this stage of the proceedings that the appellant would behave in this way and that the issue would arise.  In my view, having said this to the appellant at the commencement of the proceedings before any evidence was called, and in light of the Acting Magistrate's earlier statements that the appellant was clearly shopping around, or to use the exact quote, "Clearly seems to be shopping around for a temporary protection order", and also having regard to other aspects of the conduct and the decision made in these proceedings, which I will refer to subsequently, particularly when the decision was made on the basis that the appellant had intimidated or harassed the respondent, on the balance of probabilities the fair-minded and informed member of the public or lay observer might have a reasonable apprehension of pre-judgment on behalf of the Acting Magistrate. 

That is, that this fair-minded and informed individual would have a reasonable apprehension that the Acting Magistrate was so prejudiced by conclusions already formed that the conclusions might not be altered irrespective of the evidence or arguments put forward.  This observer's apprehension would not be ameliorated by reference to the fact that, as MrFenton submits, this is a protective jurisdiction, because it is also a jurisdiction in which procedural fairness and impartiality is required. 

Nor would it be ameliorated on the basis it was said to address the appellant staring at the respondent, as observed by Guilfoyle in her cross-examination page41 and as the Acting Magistrate observed at page 5 of his decision.  This is because the Acting Magistrate referred to this happening during the respondent's evidence and not at the earlier time when he was addressing the appellant before the evidence began. 

Taking these two matters together, on the balance of probabilities, this observer might have a reasonable apprehension that the Acting Magistrate had formed the view that the lodging of the two applications in different Courts by the defendant was an act of harassment in the sense that this has been interpreted by McGillDCJ, particularly, as I have stated, the Acting Magistrate in discussing in his decision the fact that the appellant had submitted two applications, said:

"He wants to do his own thing but he still wishes to exercise a very great deal of control, that is, inappropriate control, with respect to [MMV]." 

This was in circumstances that Ms Guilfoyle put to the appellant in cross-examination page47 that he did things of such this nature to intimidate the respondent.  This is further emphasised by the fact that an important element of the Acting Magistrate's decision related to the incident alleged to have happened at the Court, about which the Acting Magistrate said, as I have stated:

"And there is no indication why he was there for any reason, and this is probably another reason for intimidation or harassment, but he has simply gone there, it appears, to ask [MMV] why it is she did not bring the children there.  [MMV] and [SMCV] then left and went home.  This is a further example of the under the thumb attitude that they existed under for so long.  They did not wish to make a fuss about anything and they simply left.  That to me is again further proof of harassment and intimidation of [MMV] by [MAC]." 

This apprehension would be strengthened in the mind of the fair-minded and informed lay observer or member of the public by other things that occurred in the conduct of the hearing and decision.  The first is the statement by the Acting Magistrate in the course of his decision at page9 that:

"I am satisfied that it would be extremely difficult for a tiger to change his spots."

The appellant expressed particular concern about this in the course of making submissions about the manner in which the Acting Magistrate dealt with him as opposed to Ms Guilfoyle.  Although I have concluded, for reasons I will subsequently express, that the other matters raised by him do not raise to the appropriate degree an apprehension of bias, I take a different view in relation to this comment in conjunction to the references that I have already identified to "shopping around" and his comments about not harassing the respondent. 

It is important to consider this statement in the context in which it appears at pages 8 and 9 of the decision.  The immediately preceding paragraph on page 8 is as follows:

"[MAC] maintains that he never certainly argued with anyone.  The argument has never been an argument.  It has always been advising or an explanation of his situation.  No matter how you dress it up using words, there is no doubt that there have been arguments.  Even if [MAC] believes he may have simply been counselling people or advising them what may be the right way, if they came to his way of thinking, that would probably be the right way and it would be advising.  If they did not come to his way of thinking then obviously it was not right anyway and there would have been an argument."

That paragraph was the final paragraph on page 8.  The paragraph at the top of the next page commenced with the sentence that I have identified and then continues:

"I am satisfied that there is a very real likelihood that - and a more greater likelihood than not - that an act of domestic violence will continue irrespective of any order I may make.  I am satisfied that all three grounds of the application, or the basis on which I can make an application, have been met.  I am satisfied that domestic violence exists between the two persons, that an act of domestic violence has been committed and I specify an actual fact, paragraph(c) intimidation or harassment of the other person." 

Because this is a transcript prepared for an appeal and, from experience, would not have been settled by the Acting Magistrate before being provided to the Court, the positioning of this sentence may be no more than an arbitrary choice of the transcriber as to the content of the paragraphs.  When there is a page break such as this with the sentence commencing the first paragraph at the top of the next page, it cannot be said with any certainty whether it is part of the paragraph at the bottom of the previous page. 

If it is part of the last mentioned paragraph, the context would be:

"If they did not come to his way of thinking, then obviously it was not right anyway and there would have been an argument.  I am satisfied that it would be extremely hard for a tiger to change its spots." 

There is no tension with linking the sentence with the preceding words.  Equally, there would be no tension in linking it with the following words on the next page.  In this case, it would be used with the reference to the third issue on which the Magistrate had to be satisfied before making a protection order, and that is that the appellant was likely to commit domestic violence again, and, in these circumstances, the Acting Magistrate was saying that having regard to the previous protection order made against him, he was satisfied of this likelihood. 

While I have concluded that the Acting Magistrate was entitled to take the circumstances of the previous protection order which had expired in September 2007 into account, both in determining this issue and also in determining whether the conduct which he found he had engaged in following the expiration of that order, had the colour of intimidation or harassment, I consider that the use of the sentence that I have referred to was more than the just an incorrect factual statement about tigers having spots. 

In my view, the fair-minded and informed lay observer might reasonably apprehend pre-judgment on the part of the Acting Magistrate.  It is open to that interpretation and, when it is used in conjunction with the accusations of shopping around for a temporary protection order and warnings against harassing the respondent, I am satisfied on the balance of probabilities that this observer would have a reasonable apprehension from the cumulative effect of the statements by the Acting Magistrate that his mind is so prejudiced by conclusions already formed, that the conclusions would not be altered irrespective of the evidence and arguments put forward. 

The second of these factors is, although the Acting Magistrate explained to the appellant the requirement to observe the rule in Browne -v- Dunn during his cross-examination of the respondent's daughter, he did not do so during his cross‑examination of the respondent.  During the evidence of [SMCV], the Acting Magistrate said:

"Unless you contradict the statements that [SMCV] has given, I have to accept it because you haven't contradicted anything yet.  It's up to me to either accept or disregard what she says and if you don't bring evidence forward by way of questioning, that contradicts what she had said, I have to accept her evidence."

The Acting Magistrate did not remind the appellant of this again during his cross-examination of the respondent, not withstanding that it must have been obvious that the appellant was continuing to have difficulty in asking questions as opposed to making statements.  In fact, he continued to be chastised for making statements during his cross-examination.  When the Acting Magistrate said to him while cross-examining the respondent, "Will you stop making statements?  I'm not going to remind you every single time," the appellant immediately concluded his cross-examination.

Mr Fenton submits, however, that the Acting Magistrate had discharged his duty on the first occasion that he explained this rule in general terms to the appellant.  He submits that to have gone further would have compromised the impartiality of the Court by being perceived to tip the scales too much in the appellant's favour.  He correctly submits that there are difficulties for an Acting Magistrate in a situation where one of the parties is unrepresented. 

I accept that these were difficulties that the Acting Magistrate was attempting to grapple with here.  As Mr Fenton submits, it is a fine line. 

I readily accept that, as stated in the publicly available "Equal Treatment Bench Book" issued by the Supreme Court of Queensland at paragraph 12.4.4:

"What a Judge must do to assist a self-represented litigant depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.  The Court should also have regard to the position of the other party or parties concerned and to the efficient conduct of proceedings."

In that paragraph of the Bench Book, the Chief Justice is quoted as saying:

"Of course, in matters involving self-represented litigants the degree of judicial intervention will depend very much on the circumstances of each case."

Bearing this in mind, the Bench Book also says at 12.4:

"The Judge may also wish to ensure that the self-represented litigant understands that there are rules under which parties must proceed so that he or she is not deprived of a fair hearing by virtue of a failure to understand some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in Court."

With knowledge of this public statement in the particular circumstances of this case where the appellant was continuing to have obvious difficulties in appreciating the manner in which he was entitled to cross-examine the respondent, I consider that the fair-minded and informed lay observer or member of the public would be apprehensive that the Acting Magistrate had not reinforced the rule in Browne –v– Dunn by reminding him of the need to put propositions to the respondent about which he intended to contradict her by evidence. 

This was particularly important where the Acting Magistrate had made clear that if the appellant did not contradict what [SMCV] had said by questioning, he would have to accept her evidence.  A fortiori, if he did not contradict what the respondent said by questioning, he would have to accept her evidence. 

The Acting Magistrate had to consider the issues relevant to the application before him, which were alleged to arise after the expiration of the previous order, namely the alleged incident at the Supreme and District Courts and the alleged phone calls.

This was emphasised by the Acting Magistrate saying to the appellant during his evidence, "I've let you go long enough now, how about you tell me something that relates to the application? You haven't told me anything yet."

The Acting Magistrate was therefore clearly conscious of the importance of these issues.  In the decision the Acting Magistrate put stress on the fact that the evidence of the respondent and their daughter was, in effect, uncontradicted.  For example, he said at pages 6 to 7 of his decision, "His claim is that there is no evidence to support [MMV's] claim or [MMV] has put no evidence forward to support her claim and he is simply trying to push it off by saying that there is no evidence, therefore, it has not happened.  [MMV] and [SMCV] have both given evidence as to the occurrences and they have not been, at any stage, really subject to any contradiction apart from [MAC] saying, 'Well, there's no evidence therefore it didn't happen.'  There has to be something more than the mere statement by [MAC] that there is no evidence, it didn't happen.  The evidence has to be, of course, at least, brought into conflict to enable me to make a decision on credit.  I was never at any stage brought into that arena of making that decision simply because of the fact that the evidence given by [MMV] and [SMCV] was, in effect, uncontradicted."

As it was the respondent's evidence and not that of his daughter which contained the allegations about what happened at the Supreme and District Courts and about the telephone incidents, the fair-minded and informed observer or member of the public would be apprehensive that in relation to this central aspect of the case against him that the Acting Magistrate did not ensure, as stated in the equal treatment Bench book, that the appellant understood the importance of complying with the rule in Browne and Dunn being an essential rule which is of second nature to legal practitioners and those who regularly appear in the Court. 

This lay observer would not be apprehensive that by doing so, in the particular circumstances of this case, that the Acting Magistrate was appearing to take sides so as to compromise his impartial stance.

The next factor is that the Acting Magistrate made a statement at page 7 of his decision that, "He made some admissions" - referring to the appellant - "about the fact that, yes, well, if he hit the children, he may have hit the children but there is no evidence of that.  Simply saying that something did not happen is not proof or nothing that I can take into account of something not happening."

It is a reasonable interpretation of what the Acting Magistrate has said in this paragraph that he considered that the appellant had made some admissions that he may have hit the children.  This relates to evidence that his daughter gave that he used to hit the male children causing bruising.

The respondent also gave evidence of him hitting at least one of her sons causing bruising.  When he was asked about this in cross-examination he did not say that he may have hit the children.  At page 43 his response was, "Never, because she say that the children went to school with long dresses.  This is not true because the uniform is short - is short, is no long."  This was an emphatic denial. 

The Acting Magistrate probably based his assessment of the evidence on this issue on the further cross-examination of the appellant at page 45 as follows.  Question:  "And you're saying that you didn’t hit the children?"  Answer: "Why, why I have to."  Question: "That's your evidence, you're saying you didn't hit the children."  Answer:  "If I did where is the evidence that - that I did it?"  Question:  "Okay, I'll just".  Answer:  "Is not proof I did it."  Question:  "Just a moment."  Answer: "Yes."  Question:  "Where's the evidence that says that you didn't do it?"  Answer:  "Where is the evidence that I did it?"

It is clear that these responses did not depart from the appellant's earlier emphatic denial that he did not hit the children.  It was not an admission that he may have hit the children, he was merely asking where is the evidence that he hit the children if it was alleged that he did so.  This is a reasonable proposition to be advanced by a person who denies hitting his children.  He was, effectively, saying that if he hit his children there should be evidence of this and there is no evidence or no evidence has been presented as would be expected.

The fact that in conjunction with the other factors I have identified the Acting Magistrate misinterpreted the evidence in a way that was adverse to the appellant would add to the apprehension of bias on behalf of the Acting Magistrate by the fair-minded and informed lay observer or member of the public.

Another matter of concern that arises in relation to this statement by the Acting Magistrate is that he said it in conjunction with saying, "Simply saying that something did not happen is not proof or nothing that I can take into account of something not happening."

There are a number of problems with this statement.  Firstly, it suggests that the Acting Magistrate required the appellant to prove something which was not the case.  The appellant was entitled to submit to the Court that his case was that domestic violence never happened and the prosecution had failed to discharge the burden on them that it did not happen.

Perhaps the Acting Magistrate was referring to the evidential burden, however, even if he was it is wrong to say that for the appellant to simply say that something did not happen is not something that he could take into account.  There are many cases where a situation of word against word has to be resolved with one party alleging that something happened and another alleging that it did not.  This raises issues of credibility and the question will always be whether the prosecution has proven to the appropriate standard that the thing did happen.

This type of statement by the Acting Magistrate appears at a number of points throughout the Judgment, for example, immediately before the portion of the Judgment that I have just referred to, he said, "His claim is that there is no evidence to support [MMV's] claim or [MMV] has put no evidence forward to support her claim and he is simply trying to push it off by saying there is no evidence therefore it has not happened.  [MMV] and [SMCV] have both given evidence as to the occurrences and they have not been, at any stage, really subject to any contradiction apart from [MAC] saying, 'Well, there's no evidence therefore it didn't happen.'  There has to be something more than the mere statement by [MAC] that there is no evidence it didn't happen.  The evidence has to be, of course, at least, brought into conflict to enable me to make a decision on credit.  I was never at any stage brought in the arena of making that decision simply because of the fact that the evidence given by [MMV] and [SMCV] was, in effect, uncontradicted."

The Acting Magistrate subsequently also referred to what he described as, "Just the carte blanche denial by [MAC] that there is no proof."  It was incorrect to say that there was no more than a mere statement by the appellant that there was no evidence or that the evidence of the respondent and their daughter was uncontradicted because whether the appellant contradicted them in cross-examination or not he did give evidence which contradicted them even if he did not do so in detail, for example, he said in his evidence at page 40:

"There is no domestic violence and they have no proof that there is domestic violence because nothing happened in Court, nothing happened before and there is no reason to apply her for domestic violence."

Although expressed in general terms, this was not simply a statement that there was no proof but that the prosecution have no proof because it didn't happen.  When he says it did not happen in Court, this is more than just a denial but a reference to evidence he called to support his case from Mr Hayman to the effect that no complaint or report had been made about the alleged incident at the Court, an issue about which he cross-examined her.  Therefore, it is not correct to say that there was no evidence called to put this matter in issue even if there could be other explanations such as the Acting Magistrate found for why no complaint was made.

In addition, the appellant said on oath, everything the respondent and his daughter said was untrue; It was not true that he had abused the respondent all the time;  He never threatened to her;  He took care of her with the children, he supported her; he helped the respondent with study and enrolled her in different courses; and  He never punished anyone."

In cross-examination he said to Ms Guilfoyle, he never committed domestic violence;  He never pushed his family in hardship or abused them;  There is no intimidation;  He never did nothing wrong to them;  He did not put one of his sons in the garage without food;  He never hit his children; and he never did the phone calls."

This emphasises that he did contradict the respondent's case by evidence.  As I have said, there may be no other way he can do that other than by saying that these things did not happen including the two central matters to the application for the protection order, the alleged Court and telephone incidents.

In the case of an appellant who was a self-represented litigant and who did not understand Court procedure, as is apparent from the way that he conducted himself before the Acting Magistrate, it would be wrong to draw an adverse inference against him because he did not comply with the rule in Browne and Dunn.

It also needs to be appreciated that he is attempting to express himself in what is not his first language and in these circumstances, it is reasonable to interpret his frequent references to the need for proof and to asking where the evidence was as conveying there was no proof because these things didn't happen or put another way, if these things did happen there would be evidence available to prove it.

In my view, the informed and fair-minded lay observer or member of the public might reasonably apprehend that the Acting Magistrate was in error in saying that there was no more than a mere statement by the appellant that there is no evidence or that the evidence of the respondent and her daughter was uncontradicted because he gave positive evidence on oath that the things alleged did not happen.

Considering this in conjunction with the other factors I have mentioned would add further to the apprehension of bias on behalf of the Acting Magistrate by the observer.

A further factor which would add to this apprehension is that it is clear from the protection order on the Court file and which was attached to the appellant's notice of appeal that the Acting Magistrate extended its protection to four sons of the respondent and the appellant, N, C, E and R.  He was only entitled to do so as a matter of law under section 21(1) of the Act, "If having made an order for the benefit of the aggrieved, he was satisfied that the appellant has committed or was likely to commit an act of domestic violence against these persons."

The Acting Magistrate did not address this issue in his reasons.  Although there was evidence given by the respondent and her daughter of the appellant hitting the children the appellant's uncontradicted evidence was that he separated from the respondent and the family three years before.  This is around the time of the making of the previously expired protection order.

The evidence is vague as to exactly when the alleged violence occurred to the children.  I note that the violence to the other son, M, was said to have occurred when he was 13 and he was now 17, therefore, there was no evidence of recent violence against the children and, more particularly, as I have said, the Acting Magistrate made an order in relation to them without adverting to the requirements of section 21(1).

To the extent he referred to the children in his reasons, he misstated the evidence of the appellant as I have mentioned.  The fact that the Acting Magistrate made the order automatically in these circumstances without considering the legislative requirements would therefore add to the apprehension.

Mr Fenton accepts that even if one factor, in itself, may not be sufficient to cause a reasonable apprehension of bias in accordance with the tests that I have identified, in an appropriate case, I am entitled to have regard to the cumulative effects of a number of factors. 

He submits, however, that I would not consider the cumulative effect of the factors that I have identified in this case as satisfying these tests.  He particularly refers me to the two-step tests identified in Ebner, however, it must be remembered that that was a case concerned with the issue of apprehension of bias where the Judge is asserted to have an interest in the litigation.  In such a case, it is understandable that, in addition to the identification of what might lead a Judge to decide a case other than on its legal and factual merits, it is then necessary to articulate the logical connection between this matter and the feared deviation from the course of deciding the case on its merits.

This is not a case where there is a suggestion that the Acting Magistrate has an interest in the litigation.  However, even if that two-step test is applicable, it is satisfied in the present case.  This is because, as I have said, the cumulation of the inextricably interwoven factors that I have mentioned is such that I am satisfied, on the balance of probabilities, that the fair-minded and informed lay observer or member of the public might have a reasonable apprehension of pre-judgment on the part of the Acting Magistrate such that the Acting Magistrate was so prejudiced by the conclusions already performed that they might not be altered irrespective of the evidence or arguments put forward so that he might not bring an impartial mind to the resolution of the question he was required to decide. 

And the logical connection between this and the feared deviation from the course of deciding the case on its merits, particularly, with reference to the assertion that the appellant clearly seems to be shopping around for a temporary protection order and his warning before any evidence was called, that the appellant must not harass the respondent and the statement in his decision about being satisfied that it would be extremely hard for a tiger to change its spots is that the reasonable apprehension might be that the pre-judgment by the Acting Magistrate was that the appellant had and was likely to engage in acts of harassment towards the respondent when this was the key issue which he had to decide and did, in fact, decide in the respondent's favour and adversely to the appellant as a basis for granting the protection order.

These are not trivial grounds of the type which would create an unnecessary burden on appellate Courts, other Magistrates, parties and legal advisers if the Acting Magistrate was disqualified from hearing this matter.

Mr Fenton referred me to Aronsen, Dyer and Groves at pages 694 to 695 where there is a reference to a Western Australian decision of Harper v. Police in 1990 where a Magistrate was disqualified from handing out a stern warning about perjury before the defendant was even sworn.

Although Mr Fenton referred to this case to distinguish it from the circumstances of the present case, I consider it is analogous to the situation here where the Acting Magistrate warned the appellant against harassing the respondent before any evidence was called in a case where harassment of the respondent by the appellant and the likelihood that it would continue was the issue to be determined.

I therefore find, on the balance of probabilities, that the appellant's bias ground to be substantiated on the basis of apprehended bias.  This does not impute actual bias to the Acting Magistrate who I accept had a difficult task in this case in dealing with the appearance of the unrepresented appellant who did not understand Court procedures, rules of evidence or concepts of how to conduct a cross-examination.  This was exacerbated by the need to take some evidence through an interpreter.

Having engaged in some robust discussion with the appellant myself, I do not underestimate the difficulties that confronted the Acting Magistrate which, undoubtedly, led him to express some forthright views.  I have also taken into account the circumstances of the case may have required a more robust expression of views by the Acting Magistrate than usual.

I've also taken into account the litigants in person guidelines in re F Litigants in Person Guidelines 2001 FamCA 348, however, for the reasons I have given even allowing for these circumstances because the Acting Magistrate's decision was affected by apprehended bias and he should have disqualified himself from hearing the application I allow the appeal on this basis.

There are a number of factors that have been referred to during argument which do not form part of the cumulation of circumstances which have led me to this conclusion.  It is necessary that I refer to them, particularly, as they were matters of some concern to the appellant.  Two of them related to matters that I raised with Mr Fenton during argument.

The first was as to the Acting Magistrate allowing the respondent's daughter as a witness before she called the respondent without giving the appellant the opportunity to express his view as to whether this was an appropriate course of action, however, this is a civil proceeding in relation to which Cross on Evidence at paragraph 17075 states, "The duty of deciding what witnesses should be called and in what order they should be called is solely a matter for counsel."

Not only was this a civil proceeding but section 84 subsection 2 of the Act provides that, "The Court or Magistrate may inform itself, himself or herself in such manner as it or the Magistrate thinks fit and is not bound by the rules or practice as to evidence."

In such circumstances, the Acting Magistrate was not required to give the opportunity to the appellant to object to this course of action, in fact, the appellant took advantage of it himself when he presented his case by calling Mr Hayman the Supreme and District Courts Building Services coordinator before he gave evidence.  Again, the Acting Magistrate did not give Ms Guilfoyle an opportunity to submit that a contrary course should be adopted. 

For the reasons I have given he did not have to.  Therefore, this approach by the Acting Magistrate would not cause any apprehension to the fair-minded informed lay observer.  As I say, I mention this issue and the following one because I raised them with the respondent's counsel. 

The second was as to the Acting Magistrate's reliance on a previous protection order which had been made against the appellant in reaching his decision that domestic violence had occurred on this occasion.  I've previously referred to the relevant passages at pages 4 and 5 of the decision.

The issue that I raised with Mr Fenton was that I could find nothing in the record which showed that the circumstances which formed the basis of the making of this order had ever been brought to the appellant's attention so that he could make a comment or submission in relation to them.

This goes to the issue of whether the Acting Magistrate was procedurally fair to the appellant in relying on this earlier order.  When I raised this matter with Mr Fenton he was also unable to point me to anything in the transcript that addressed this prima facie concern, however, he submitted that this was a regularly given Judgment that was relevant to the issues in this case.

He submits that at page 4, the Acting Magistrate was making clear that there were other bases than the previous order which caused him to reach the decision, that is, on the evidence before him and the behaviour of the respondent before him.

At page 5, he specifically refers, again, to the appellant's attitude in Court.  I also note at page 9 he said he was satisfied on the evidence before him that an act of domestic violence occurred.

Mr Fenton submits that the Acting Magistrate was entitled to view the evidence of the appellant's actions since the expiration of the previous order namely the alleged Court and telephone incidents as part of the continuum over time, in other words, that it is relevant because it gives colour to the alleged conduct since the expiration of the order.  This is in the sense that once the Acting Magistrate had found this conduct occurred since the expiration of the previous protection order, the previous conduct is relevant in determining whether it is properly characterised as intimidation or harassment.  However, it is still necessary that the appellant was given a full and proper opportunity to respond to this.

In relation to this, Mr Fenton submits, that while nothing may have been specifically said to the appellant about the circumstances of the previous order the appellant clearly knew of it.  Upon revisiting the transcript, I've come to the conclusion that this last submission addresses my concern.

At page 23, Ms Guilfoyle asked the respondent about the previous order to which she received the reply, "There was an AVO there when [indistinct] had a problem, a violence problem with [M] at home."  She agreed that this was when the police took out the order and it had expired in September 2007.

In his own evidence, I'm satisfied that the appellant identified the circumstances which led to this order when he said, at page 39, "Then [M] used the opportunity to start an argument with me.  We had a huge argument but that's it, that argument.  They say that I tried to kill him.  I told the police, took the knife, fingerprints and everything and the police say, no.  Well, where is the evidence?  I was charged with domestic violence because they put me in hospital."

This is probably a reference to the incident which his daughter said happened on the 9th of August 2005 when the police were called.  Further at page 40, the appellant said, "About the previous domestic violence order was made because I was not present.  I was unable to defend myself."  This is in a context in which he said, during his evidence, that everything the complainant and her daughter said was untrue which must include a reference to this allegation.  He also said that he never punished anyone.

It is also relevant that by virtue of section 84(1) of the Act, the Acting Magistrate was entitled to treat a copy of the previous protection order in the absence of evidence to the contrary, as conclusive evidence of the making of the order and the matters contained therein. 

Given that the appellant described the circumstances in which the order was made and gave an explanation as to why he was unable to defend himself, the Acting Magistrate was entitled to proceed on the basis that the appellant knew the circumstances and responded to them in evidence so that procedural fairness was afforded to the appellant before he took it into account in the manner that I have identified.

Therefore, this approach by the Acting Magistrate would not cause any apprehension to the fair-minded and informed lay observer.  However, this in no way derogates from my earlier finding that the reference to the appellant in terms that the Acting Magistrate was satisfied that it would be extremely hard for a tiger to change its spots is a circumstance which in conjunction with other circumstances might give rise to a reasonable apprehension in such an observer that the Acting Magistrate's mind was so prejudiced by conclusions that he had already formed that they would not be altered, irrespective of the arguments put forward.

The other factors were raised by the appellant.  I refer to his grounds of appeal 16 to 17 which allege bias against the Acting Magistrate because he allowed Ms Guilfoyle to examine his first witness whom he had summoned.  The fact that he had summoned her emerges from the transcript at page 12.  MsGuilfoyle said that the respondent was going to summons her, but "we got there first."  At that time she was referring to the appellant who was the respondent in those proceedings.

This witness was his daughter, whom as I have observed was the first witness called.  This is connected with a further factor that emerges from page 36 where the appellant told the Acting Magistrate that he wished to call his daughter as a witness but was not allowed to do so as she had already given evidence.

The appellant responded by giving a reason that he wanted to call her as, "Because she had to say in the toilet.  They say that happened on the ground floor.  Now they are changing to another level."  The Acting Magistrate responded:  "They're not changing at all, but you have had your chance to question Sonia with respect to this matter.  Now [SMCV] has been excused and she won't be recalled."

The appellant adds to this that his reason for wishing to call his daughter was that he wanted to ask her about this alleged Court incident, because Ms Guilfoyle, having called her as a witness, did not do so.  His argument is that by the Acting Magistrate allowing Ms Guilfoyle to conduct her case in this way and not allowing him to call and question his daughter about this, he demonstrated bias.

Mr Fenton, not surprisingly, addressed these criticisms by making the point that there is no property in witnesses.  Therefore, although she was summonsed by the appellant, there was nothing to prevent the other party calling her to give evidence.  He submits that this gave the appellant a forensic advantage of cross-examining her which he would not have had if he had called her himself, particularly when as he put it, she was in the camp of the respondent, as is apparent from the transcript.

The submission was not surprising because it adopted the propositions that I had put to the appellant during argument.  The fact is that by persisting with this submission the appellant demonstrates that he still cannot grasp some of the rules under which parties must proceed in these Courts.  It underlines the point that I made earlier that the fair-minded and informed lay observer or member of the public would have been apprehensive that the Acting Magistrate did not do more to ensure that the appellant understood the more obvious rules which are second nature to legal practitioners and those who regularly in Court, and that he could have done so without appearing to take sides so as to compromise his impartial stance.

However, the fact is that in relation to this issue Mr Fenton is correct and the forensic advantage to the appellant from the fact that his daughter was called by the respondent is demonstrated by his own ground 17 which asserts that this witness was not willing to give evidence in his favour.

It is curious that having called SMCV as a witness that Ms Guilfoyle did not as her questions about one of the incidents which were central to the application for this protection order, that is about the alleged Court incident in which she was involved.  However, having read the transcript I am satisfied that this was an oversight which was in keeping with the general manner in which the respondent's case was presented.  The difficulties with the need to interpret the evidence of one of the witnesses may well have led to the case being presented in that way.

Of course, it would not have been proper for the Acting Magistrate to intervene and point this oversight out to MsGuilfoyle.  If he had done so, given that she is a lawyer, this is likely to have become another basis on which he was alleged to have been biased against the appellant.

The fact is that the appellant had the unfettered right to cross-examine her about this incident, that is to say the Court incident, although she had not mentioned it in her evidence-in-chief.  At least in this case he received the benefit of the Acting Magistrate explaining the rule in Browne v. Dunne to him.  However, he did not take the opportunity to cross-examine her on this issue when she was in the witness box.  His failure to do so is again probably the result of his lack of understanding of the rules by which Court proceedings of this nature are conducted, with the result that he thought at that time he would still be able to ask her about this when he called her as a witness as part of his case.

This is consistent with his advice to the Acting Magistrate at page 36 of the transcript that he would call her as a witness.  The fact that the Acting Magistrate allowed SMCV to be called as a witness by Ms Guilfoyle and would not allow her to be recalled as a witness by the appellant for the reasons I have given would not have caused the necessary degree of apprehension in the fair-minded and informed lay observer or member of the public, particularly as I can see nothing in the transcript which would have alerted the Acting Magistrate to the point that it was the appellant who had summonsed her before she was called as a witness by the respondent's lawyer.

I add that if the appellant's complaint was intended to extend to an allegation that the Acting Magistrate stopped him cross‑examining SMCV about what happened at the hospital, this is not supported by the transcript.  As I have said, the Acting Magistrate specifically explained the rule in Browne v. Dunne to him during cross-examination.  Further, he was never stopped from cross-examining her as opposed to making statements.

Associated with this proposition was his submission that the Acting Magistrate showed bias by seeking to clarify what the respondent had said in her evidence-in-chief about the alleged Court incident at page 27.  He argues that her evidence-in-chief was confusing and the Acting Magistrate impermissibly asked questions about which Court it was that her evidence referred to at page 32.

Mr Fenton simply submits that judicial officers can always ask questions to clarify issues during the evidence of witnesses.  I agree with Mr Fenton.  Firstly, there was nothing unclear about the nature of the incident described at page 27, although the Court where it occurred was not identified.  The Acting Magistrate was required to make a decision and was therefore perfectly entitled to clarify what Court it was alleged that this incident occurred at.  This was an entirely neutral involvement which did not involve impermissible entry into the arena in circumstances in which the appellant ultimately called Mr Hayman, the building services coordinator from the Supreme and District Courts, who confirmed the identity of the Court where this incident was alleged to have occurred.

Accordingly, the Acting Magistrate's intervention to clarify this aspect of the evidence did not relate to an issue which was ultimately in contention.  Further, the appellant was able to cross-examine the respondent about the alleged episode at page 29.  Although he expresses concern that he was cut off by the Acting Magistrate, this was clearly in the context that the Acting Magistrate was attempting to stop people talking over each other and at the top of page 30 said to the appellant, "Ask your question again," and the appellant did in fact ask further questions about this issue.

The next factor which I do not consider of relevance to my conclusion is the appellant's assertion that Ms Guilfoyle handed the Acting Magistrate an affidavit which he read without the appellant knowing what was in the document.  For this reason he subpoenaed Ms Guilfoyle to give evidence in the proceedings before me, amongst other reasons that he summonsed her.

However, she had not been served.  This does not matter because as Mr Fenton submits, there is an innocent explanation that clearly appears from page 21 of the transcript where Ms Guilfoyle asks the Acting Magistrate whether the domestic violence application which he properly had before him as the originating document in these proceedings would be taken into consideration without the respondent giving evidence.

He responded by asking whether she could point him to how he could proceed in this manner.  In answering she said that some Magistrates prefer to have affidavit material before them and said that the affidavit would have been along similar lines to the application.  However, the Acting Magistrate observed that this was just the declaration and that it was not sworn.  He was clearly talking about the application.  He concluded that he could not find anything that would allow that to happen.

As Mr Fenton correctly submits, the Acting Magistrate ruled against the submission with the result that the respondent was called as a witness and was never shown the application or any affidavit.  Therefore, the transcript itself contradicts the suggestion that at this point of the proceeding the Acting Magistrate had reference to any document that the appellant did not have access to, as opposed to the application that he was entitled to consider.  Accordingly, there is nothing in this submission by the appellant in support of his argument of bias on behalf of the Magistrate.

I also do not consider that his argument of bias gains any support from the involvement of the Acting Magistrate at the bottom of page 33 as follows:  "RESPONDENT PERSON:  Also [SMCV] can give evidence - can give the evidence about the Court matter what happened.  BENCH:  [MAC], stop talking.  RESPONDENT:  Yes, thank you."

This exchange also was raised in the context of his argument that he was not allowed to call his daughter SMVC as a witness, however this is not the context in which the Magistrate was speaking.  When the preceding passages are referred to it is clear that this was in relation to the appellant's request to call Mr Hayman before he gave evidence. 

The Acting Magistrate responded that he would let him come in, and Ms Guilfoyle then said, "I'll call him, your Honour," for which she was thanked by the Bench.  It was then that the appellant went on to mention the issue of what his daughter could give evidence about and was told to stop talking.  As MrFenton explained to me and experience shows, in Magistrates Courts where there are no bailiffs it is not unusual for practitioners and prosecutors such as police prosecutors to go outside the courtroom to call witnesses in to it in order that they give evidence.

Therefore, the Acting Magistrate was in all probability telling the appellant to stop talking in circumstances where Ms Guilfoyle had left the courtroom so that anything that the appellant said to the Acting Magistrate would not be said in her presence.  That would be impermissible.  This is a reasonable explanation based on experience of Magistrates' Court procedures.

This is supported by the fact that immediately after this exchange Mr Hayman was sworn and examined, and in any event after his evidence was complete and he was excused, the appellant was able to raise with the Acting Magistrate his desire to call his daughter as a witness at page 36, to which I had previously referred. 

There is nothing in these circumstances alone or in combination with other circumstances which might give rise to an apprehension of bias on behalf of the Acting Magistrate.  The next factor relied on by the appellant was that he was convicted without evidence.  He simply submitted at page 149 that, "The aggrieved had failed to prove that domestic violence against me ever happened."  He submits that the Acting Magistrate accepted the evidence of the respondent and her daughter without proof and he did not have an open mind.

However, as Mr Fenton submits, the Acting Magistrate found against the appellant by applying the law to the facts.  Therefore, the appellant's argument comes down to an apprehension of bias because the Acting Magistrate did not find in his favour.  I agree with Mr Fenton that notwithstanding my view that there are aspects of the Acting Magistrate's reasoning that might give rise to an apprehension of bias in reaching his final decision, the fact that the Acting Magistrate has made a decision which is not what the appellant hoped for is not in itself something which might give rise to an apprehension of bias.

The appellant then submitted that there is something missing from the transcript as a result of which he wanted the audio of the hearing played.  This is not a matter that I need to address given the decision that I have come to on apprehended bias, because when I asked him exactly what was missing it came down to the manner in which the Acting Magistrate dealt with him as opposed to Ms Guilfoyle, including the Acting Magistrate's tone which he described as abusive towards him.  He also submitted that the Acting Magistrate used an offensive and intimidating tone and he was told to stop asking questions.  He said on the other hand that the Acting Magistrate's tone was softer towards Ms Guilfoyle.

One of the areas about which he expressed concern was about the Acting Magistrate's use of the phrase to the effect that he was satisfied that it would be extremely hard for a tiger to change its spots.  I've already addressed this.

He also expressed concern about the exchange in which the Acting Magistrate mentioned that this was not American TV, as follows:  "RESPONDENT PERSON:  Thank you, your Honour.  Just I - reminding her, the witness, that she is under‑‑‑‑‑  BENCH:  No, you don't have to do.  We're not playing American TV, [MAC]."

The appellant argues that [MAC] was never told about perjury and he was simply seeking to remind her that she was on oath.  This arose in the context that the appellant had said he preferred to cross-examine [SMCV], his daughter in Spanish and the Acting Magistrate had said he was to continue in English.

Mr Fenton submits that it is always improper to remind a witness that he or she is under oath.  He argues that the vice is that this presupposes that the witness has committed perjury when that witness has been sworn and therefore would understand the obligation of the oath.  I might add in much the same way that telling a self-represented person that he was not to harass a witness before that witness had been sworn and had commenced to give evidence and before he had asked any questions also suffers from the vice that it presupposes that the self-represented litigant will behave in an harassing way against the witness during the course of cross-examination.

In my view the Acting Magistrate was entitled to tell the appellant that as a matter of the Court's procedure he would not allow the appellant to remind her that she was under oath and there was no reason that bias might be apprehended because he expressed this by reference to everyday terminology that the appellant or any ordinary person less familiar with the operation of the Courts could be expected to understand.  Nothing had arisen to require the witness to be reminded of the terms of the oath or about perjury.

In relation to the argument that the appellant found the Acting Magistrate's style to be objectionable, Mr Fenton submitted that while the style could be described as officious this does not amount to apprehended bias.

I do not consider that upon a reading of the transcript that there might apprehended bias merely because the Acting Magistrate told the appellant to stop on a number of occasions.  A fair reading of the transcript suggests that this was done because the appellant was making statements and not asking questions. 

It was proper for the Acting Magistrate to stop the appellant doing this and to explain to him that he must ask questions, for the appellant to do otherwise would not advance his case.  This was appropriate advice to be given to a self-represented litigant.

For completeness, I observe that I asked the appellant whether there were any other factors which he wished to raise in support of this aspect of his submissions.  He responded, "That's it."  It therefore appears to me that there is nothing that he has identified that is missing from the transcript other than the Acting Magistrate's tone.  Because of the ultimate conclusion that I have come to on the bias issue it is not necessary for me to listen to the audio of the proceedings.

Because I have allowed the appeal on the preliminary issue of bias it is not necessary for me to consider the remaining grounds of the appeal.  However, I also address the other issue which Judge Brabazon directed be dealt with as a preliminary issue, the need for additional evidence.  This requires an appreciation of what additional evidence is in issue. 

In the notice of appeal filed on the 3rd of October 2008 the appellant said that he would seek to adduce fresh evidence by the respondent and JG and AG whose evidence had been ruled irrelevant at a preliminary hearing before another Magistrate. 

The Acting Magistrate also ruled that questions sought to be asked by the appellant about his phone calls to the family of JG and AG were not relevant.  I refer to page 31. 

In the appellant's outline of submissions which would have been before Brabazon DCJ because they were filed on 9 March 2005 he introduced a new ground of appeal which is not the subject of the original notice of appeal.  This ground is setting aside the orders due to fraud.  The allegation is that there has been an alleged fraud pursuant to section 408C subsection 1 paragraphs (f) and (g) of the Criminal Code, that is, inducing a person to do or abstain from doing an act which the person is lawfully entitled to abstain from doing.

He also submitted during the hearing of the appeal, that further alleged offences had been committed including perjury, fabricating evidence, conspiracy to bring a false accusation and to defeat justice, attempt to pervert the course of justice, false statements, false declarations and criminal defamation and he submitted that this would be provided by the respondent, her daughter, and Ms Guilfoyle.

Judge Brabazon's order also required that the appellant file and serve any further affidavits within 21 days setting out the details of any additional witnesses and the evidence that they were expected to give and any facts to show why the evidence should be admitted at the hearing of this appeal.

The affidavit filed on the 30th of March 2009 must have been in compliance with this direction.  The only additional witness that the appellant identifies in that affidavit is Ms Guilfoyle whom he says must be called as a witness to give evidence on the hearing of the appeal on the grounds that she obtained the appealed decision or order by misleading the Court, Acting dishonestly and all the allegations mentioned in the affidavit.

I have previously referred, in detail, to those allegations which are set out in paragraphs 4 to 7 of that affidavit and should also be considered in the context of paragraph 3 of the affidavit which relates to the respondent and her daughter.  I have also previously stated what those allegations are. 

In his outline of submission filed on the 27th of March 2009 the appellant alleges again that the respondent and Ms Guilfoyle obtained the order by fraud and other offences against the Criminal Code, however, the balance of the submissions concerned the issue of bias.

In his outline of submissions on the 13th of May 2009, prepared for the most recent hearing before me, the appellant restated in part C that the order was obtained by fraud and asserts that it was obtained by Ms Guilfoyle committing offences against the Criminal Code.  He then lists the offences and concludes, "It is submitted by the appellant that the Judge should hear the appeal on the grounds of bias, fraud, correction of witness, deceiving witness, fabricating evidence, conspiracy to bring false allegations, conspiring to defeat justice, attempting to pervert justice, perjury, false statements and statements required to be under oath or solemn declaration, false declarations and criminal defamation."

However, when it came to argument, the appellant submitted that the extra evidence I should hear went beyond Ms Guilfoyle but also extended to the CD of the evidence before the Acting Magistrate, the respondent, their daughter, Mr Hayman, whom I note it has never previously been suggested should be called JG and AG.  He told me that he believed the respondent had complained about him in retaliation because of something that had happened with JG and AG. 

Of more relevance to the fraud, he said Ms Guilfoyle took their daughter into a room at the Court with the respondent and told her not to tell the truth.  He clearly sees the issues of fraud and bias as being interrelated and submits that he has a right to a fresh hearing in these circumstances.

Mr Fenton responds by submitting that in accordance with Judge Brabazon's order and the appellant's response, the only additional evidence in issue on the fraud point is Ms Guilfoyle; it is a simple decision because there is no evidence of fraud; and there is no basis established to consider the fraud issue; it not being sufficient to simply make allegations from the Bar table to open up the factual inquiry.

The simple answer to this question is that, in accordance with Judge Brabazon's order, the only witness identified by the appellant was Ms Guilfoyle and this related to the issue of fraud which had first been introduced into the submissions made to his Honour before he made that order.

Because I allowed this appeal on the ground of bias, it is not necessary that I consider the ground of fraud which has been introduced in submissions and does not form part of the original grounds of appeal and therefore it is also not necessary to address the issue of whether additional evidence should be called in relation to this.

In any event, I would not order that Ms Guilfoyle be called on the basis of unsubstantiated allegations from the Bar table which are based on speculation.  The only basis asserted is that Ms Guilfoyle spoke to the daughter in the presence of her mother in a room at the Court and told her not to tell the truth.

Although it may have been unwise for Ms Guilfoyle to speak to a potential witness in the presence of another, if that indeed happened, there is no more than speculation as to what conversation she had with them.  It is speculation that she told her not to tell the truth.  It should not be assumed, without some evidence which gives rise to an apprehension or suggest that it is on the cards that a solicitor has dishonoured her oath of office by counselling or conspiring in the giving of perjured evidence to be adduced before the Court on the hearing of the application.  To require her to be called as a witness on this tenuous basis would be invite a fishing expedition. 

It would, similarly, be tantamount to a fishing expedition to call the respondent or their daughter as a witness on this issue.  The same can be said about the other potential witnesses who have been mentioned so far as the fraud issue is concerned.  There is no reason to contemplate that the evidence of Mr Hayman or JG and AG would be relevant to this issue.

I, therefore, do not consider that special grounds have been established as a basis for exercising my discretion to receive further evidence from Ms Guilfoyle or any other person on this ground of appeal and as this is an appeal from final Judgment as opposed to an interlocutory matter and it also relates to a matter which occurred before final Judgment, special leave is required under rule 766(2) of the UCPR to adduce this evidence.  For the reasons given, I would not give special leave for this purpose.  However, the issue remains as to how I should proceed having allowed the appeal on the bias issue.

Section 66(1) of the Act deals with the powers of this Court on appeal.  If the appeal is allowed, the order to which the appeal relates may be discharged or varied and I may make the order or decision I consider should have been made.  There is no power to declare the decision a nullity and it is therefore inappropriate that I consider whether there was any jurisdictional error which produced such a result.

Regrettably, there is no express power to remit the matter to the Magistrates Court for a proper hearing and a power of that nature is not one to be implied.  This is an unfortunate omission from the Act having regard to the nature of the appeal to this Court under section 65(1).

It is a rehearing on the record but this does not mean, in the normal case, that the findings of the Magistrate are irrelevant particularly in cases where there are findings about matters of credibility.  I refer to the decision of McGill DCJ in O'Sullivan v. Dunn 2009 QDC at [21]. 

In addition, as I have observed, the Court is invested with the discretion of the Court of Appeal under rule 766(1)(c) of the UCPR to receive further evidence as to the questions of fact either orally or by affidavit or in another way.

Pursuant to rule 766(2) special leave is not required for this evidence to be given unless the appeal is from final Judgment and, in any case, as to matters that have happened after the date of Judgment appealed against.  However, this is an appeal from a final Judgment of the Magistrate's Court and the further evidence that the appellant has submitted should be received concerns matters related to the alleged allegations of domestic violence and occurring before the Acting Magistrate's Judgment therefore special leave would be required for this additional evidence to be given to the Court.

The evidence of Ms Guilfoyle would not be relevant to the rehearing of the allegations of domestic violence which it would be necessary for me to undertake if I am to exercise my discretion under section 66 subsection 1 paragraph (b) to make such an order or decision which I consider should have been made by the Acting Magistrate.

The appellant is seeking that the respondent, his daughter and Mr Hayman be called and in doing so is clearly seeking that I exercise my discretion to give special leave to allow the whole application to be litigated afresh on the evidence called before me, however, this is not the purpose of the power under rule 766(1)(c) of the UCPR. 

As stated in the annotations to volume 1 of Civil Practice Queensland at [r 766.5] further evidence means any evidence whatsoever not used at the trial although it includes evidence which a party was refused to use at the trial.  This would be relevant to the evidence of JG and AG.  As the annotation goes on to say, generally appellate Courts are reluctant to admit fresh evidence.  The policy is that there must be finality to litigation.  The reception of further evidence has been described as rare and exceptional.

The principles upon which the Court will receive further evidence of events occurring before the decision below are discussed by the Queensland Court of Appeal in Brisbane City Council v. Mainsel Investments Pty Ltd 1989 2 Queensland Reports 204 by Kelly SPJ with whom the other members of the Court agreed, at 215 where the earlier decision of that Court in Clark v. Japan Machines (Australia) Pty Ltd 1984 1 Queensland Reports 404 was followed.

In the latter case, Justice Thomas in what was, in effect, the Judgment of the Court said at 408, "The classic statement of what amounts to special grounds for the reception of further evidence upon an appeal was approved recently by Lord Bridge in Langdale v. Danby 1982 3 All England Reports 129 at 137-138.  Three conditions must be fulfilled.  First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial.  Second, the evidence must be such that if given it would probably have an important influence on the result of the case although it need not be decisive.  Third, the evidence must be such as is presumably to be believed or, in other words, it must be apparently credible though it need not be incontrovertible."

This decision was referred to with approval in Horne v. Commissioner of Main Roads, 1991 2 Queensland Reports 38 at 41.

In the present case, with reference to the evidence of the respondent, her daughter and Mr Hayman, the first of these criteria cannot be fulfilled because this evidence was, in fact, available at the trial.  This emphasises that the purpose of exercising the discretion to admit further evidence is not to, in effect, conduct the whole trial again before the appellate Court.

Although such evidence may have had an important influence on the result of the case the appellant would argue, in any event, that it is not credible.  The respondent would argue to the contrary.  However, the person seeking to lead the evidence must do so on the basis that it is apparently credible and he does not advance it on this basis in the present case. 

This, again, underlines the proposition that the purpose of allowing further evidence to be called is not to retry the whole case before the appeal Court.  Of course, I do not include Mr Hayman in the analysis that the witnesses sought to be called would not be apparently credible but that does apply to the respondent and her daughter given the way in which the case, including this appeal, has been conducted to date.

But, in any event, Mr Hayman's evidence could not be allowed to be given on this appeal for the reason that that evidence was available and, in fact, was used at the trial.

However, in relation to JG and AG the evidence could not, with reasonable diligence, have been obtained for use at the trial because of a ruling by another Magistrate a week earlier that their evidence was not relevant to those proceedings, with the result that the Acting Magistrate would not permit the appellant to question the respondent with reference to telephone calls about JG and AG.

The ruling by the first Magistrate was upon an application to set aside summonses issued out of the Court by the appellant for JG and AG to give evidence in the proceedings.  The Magistrate addressed that question on the basis that for it to be allowed to be given, the evidence must be relevant to the respondent's application and the appellant's cross-application.  The Magistrate identified the appellant's argument in support of relevance as follows at page 6 of his decision:

"That on 11 December 2007 in a meeting between he and [JG and AG] - that is, a face-to-face meeting when [JG and AG] came to [MAC's] residence or wherever [MAC] was - and told [MAC] that he - that is, [JG] - had had a sexual relationship with [MMV].  [MAC] said that further, the evidence that he wished to get from them would be from - and from both of them, he stressed - that he did not get upset and he did not get angry at hearing that news because in effect he was over the relationship with the respondent.  [MAC] then referred to a part of MMV's application in which she says, as part of paragraph 19(b), and I quote, referring to telephone calls, 'During these calls [MAC] also accuses me of being with other men and gets very angry at me when I deny this.'  [MAC] says that he did not get angry when discussing on the telephone with his wife or with [MMV] that as she has accused him of doing that, that being part of her application and her allegations of domestic violence, that he has denied getting upset and if he didn't get upset when he was told face-to-face of someone having a sexual relationship with his wife, why would he later get upset on the telephone with his wife if she denied that?"

The Magistrate decided that their evidence was not relevant to the proceedings because JG and AG were not parties to the telephone conversations and the 2 events were separate.  Although he left it open to hear an application that summonses be issued to them in future if it became obvious they were relevant witnesses as the proceedings unfolded.

In these circumstances the Acting Magistrate was pre-emptive in preventing the appellant cross-examining the respondent about JG and AG at page 31 where the appellant asked, "What happening with my phone calls on 11th of December about the - [JG and AG]?"

The respondent, who was being cross-examined at the time, replied that this was not relevant.  The Acting Magistrate immediately said that the evidence is not being permitted at all and he would not allow the appellant to develop a submission on why he should be allowed to ask this question.  In doing so the Acting Magistrate fundamentally misunderstood the ruling that had been made previously.  This only related to whether their evidence was relevant and left open that it might become relevant in the proceeding.

The appellant was nonetheless entitled in cross-examination to ask questions which might result in establishing the relevance of their evidence.  In any event, he was entitled to cross-examine as to credit.

For there to be special grounds to permit the reception of the evidence of JG and AG on this appeal, one of the conditions which must be fulfilled is: "The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive."

I agree with the reasons given by Magistrate Quinn, who determined the issue on 23 September 2008 that on the basis of the relevance then argued by the appellant their evidence was not relevant to the issues in the application as it was too remote.  I am not satisfied that it would probably have an important influence of the result of the case.

However, I need also to consider that the appellant now asserts its relevance on another basis; namely, that the respondent has made a complaint in retaliation because of something which happened with JG and AG.  However, the appellant, despite the opportunity to articulate this further, has not been able to do so.  Taking all due regard for the difficulties that he obviously has in understanding the court processes, and orally expressing a legal basis for his arguments, although his written outlines are articulate, the argument he has presented in favour of adducing such evidence is too vague and lacking in detail for me to be satisfied that it fulfils the second condition that I have mentioned.  Accordingly, I do not consider that the conditions which must be established to constitute special grounds for the reception of further evidence as submitted by the appellant have been fulfilled, and therefore I do not exercise my discretion to receive such evidence.  It also follows that I do not give special leave for such evidence to be given.  I note the respondent has argued against further evidence being called.

In these circumstances I consider that the appropriate course within the range of orders available to me under section 66(1) of the Act is to discharge the order that was made against the appellant.  As to what order I consider should have been made, I can only proceed on the basis of the record.  It appears from the record that the Acting Magistrate made his findings on the evidence given before him and the behaviour of the respondent before him.  The reference to the behaviour of the respondent was that the attitude taken by the appellant in court clearly seemed to be one of intimidation and bias.  The Acting Magistrate continued by saying:

"I am satisfied that on the evidence before me that I have accepted, rather than just the carte blanche denial by [MAC] that there is no proof, and also my personal observations in Court today, I am satisfied that an act of domestic violence is likely to occur again and that an order should be made."

However, as I have said, the record shows that there was more than just a carte blanche denial by MAC that there was no proof because what he was effectively saying is there was no proof because it never happened.

Similarly, I have previously said that the Acting Magistrate was incorrect in saying that the evidence of the respondent and her daughter had not really been the subject of any contradiction from the appellant, apart from saying, "Well, there's no evidence.  Therefore it didn't happen."  As I have said, this is because the appellant did give evidence which contradicted the central aspects of the evidence of the respondent and their daughter. 

These findings have been made by an Acting Magistrate whose decision has been discharged because it is affected by apprehended bias.  In these circumstances the findings and conclusions of the Acting Magistrate, including findings as to credibility, are not entitled to as much weight as would normally be the case.  In fact, given comments that were made by the Acting Magistrate it is not certain that he made any findings on the issue of credibility as opposed to accepting the evidence of the respondent and their daughter on the basis that he wrongly concluded that it was not contradicted by the appellant.

Based on the reasons for my finding that there was apprehended bias in this case, I give the Magistrate's findings and reasons no weight at all.  Once the Acting Magistrate's findings and conclusions for making his decision are put aside, including, if there were any, any findings as to credibility, I find no proper basis upon the material in the record for making an order under section 20 of the Act.  All that remains are allegations by the respondent, which are contradicted by the appellant's evidence, particularly on the 2 central issues; the alleged court incident and the alleged phone calls.

As I have said, the appellant gave evidence that nothing happened at the Court.  He called a relevant witness to say that no report or complaint had been made in order to support this proposition.  He also gave evidence that he never made the phone calls and the phone calls came from the respondent.  He also denied other supporting allegations, such as hitting his sons.

In circumstances where I cannot properly take into account the Acting Magistrate's reasons and conclusions for making his decision, I am left with no proper basis for resolving this contradictory evidence.  In these circumstances the order which should have been made was that the applications for a protection order be dismissed.  Therefore, the appeal is allowed.  The protection order made by the Magistrates Court at Sandgate on 30 September 2008 against the appellant is set aside and in lieu thereof I order that the application for a protection order by the respondent against the appellant be dismissed.  I will receive separate submissions on the issue of costs, which are sought by the appellant on the basis that the application was malicious, deliberately false, frivolous and vexatious.  This would seem to be an application for indemnity costs.

...

HIS HONOUR:  I make no order as to costs in this matter.