DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant is the subject of a “domestic violence” order made pursuant to the Domestic and Family Violence Protection Act 1989 (“Protection Act”) in the Magistrates Court at Sandgate on 19 February 2010.

2. [2]
   The respondent to the appeal is a person described in the Protection Act as an “aggrieved”: see s 12F(1).  An aggrieved means the person for whose benefit a domestic violence order may be made under the Act.

3. [3]
   Fundamental to the appeal is whether a “family relationship” – being a sub-set of the set of “domestic relationship(s)” – exists between the appellant, as respondent below, and the respondent to the appeal, as the aggrieved.

Background

4. [4]
   As concisely stated by the learned Magistrate in his Reasons, it is alleged that a “domestic relationship” exists between the parties “by virtue of Mr G being the son of Mrs K with whom (the aggrieved) said he was residing in a domestic relationship up until her death on 31 July 2009”.

5. [5]
   As also indicated by the learned Magistrate in his Reasons, the proceeding came before the court on no less than eight occasions after the original application was filed on 28 August 2009 and, after the hearing was first listed, the proceeding had been before the court on six occasions including the day on which the orders were made. Consequently, a large volume of material has been generated for consideration on review.

6. [6]
   The Notice of Appeal to this court, filed 19 March 2010, contains 15 separate, but not discrete, grounds. That Notice of Appeal foreshadowed that the appellant would seek to adduce fresh evidence. By orders made 22 November 2010 by Botting DCJ, the appellant was given the opportunity to notify an intention to seek leave to adduce such further evidence. Those orders were not utilised and, therefore, no new evidence was placed before this court on appeal (i.e. there was no material apart from the material available to be considered by the learned Magistrate).

Nature of Appeal

7. [7]
   In the Queensland Court of Appeal decision of Bell v Bay-Jespersen [2004] 2 Qd R 235, although the primary consideration was a security for costs application in the context of an appeal in a proceeding under the Judicial Review Act 1991, McPherson JA, with whom McMurdo P and White J (as she then was) expressly agreed, observed that an appeal pursuant to the Protection Act as provided for in ss 63 to 66 was “equivalent in procedure and effect” to that provided under s 222 of the Justices Act 1886: at 240-241 [16]. 

8. [8]
   Recently, in Atkinson v Gibson [2010] QCA 279, the Court of Appeal, through Fraser JA, with whom Mullins J expressly agreed, approved of the approach about what is required in the hearing of an appeal under s 222 of the Justices Act 1886.  That is, the primary judge should make his or her own determination of the relevant facts and issues, by drawing his or her own inferences and conclusions, while having regard to the significant advantage which the trial magistrate has of seeing and hearing the witnesses give evidence as the case unfolds, with the obligation on the appellate court being to give “due deference and [attach] a good deal of weight to the magistrate’s view”: at [64]. 

9. [9]
   As remarked by McGill SC DCJ in Bottoms v Rogers [2006] QDC 080, s 65 of the Protection Act actually states that the appeal is “by way of rehearing on the record and under the Rules of Court applying to the District Court, or insofar as those rules cannot be applied to such appeals, in accordance with directions given by a District Court Judge” (emphasis added): at [1].  The Justices Act 1886 is brought into play, generally, as required by s 38(2)(a) of the Protection Act.  For my own part, the tenor and context of the appeal provisions suggest that such an application, on appeal, is to be seen as tantamount to a civil appeal, requiring no reference to the provisions of the Justices Act 1886 for its appeal procedures, particularly giving the obvious “inconsistency”. 

10. [10]
    But, at least insofar as matters in the rehearing on the record are concerned here, there is no basis for considering the requirements to be other than that mandated by Atkinson, especially when error is demonstrated. 

Grounds of Appeal

11. [11]
    On appeal, I gave leave to appear, pursuant to s 52(1) of the District Court of Queensland Act 1967 insofar as this is a “proceeding” in this Court, to Mr Bell who was not, within the terms of that provision, “a lawyer” (noting that he had stated that he had undertaken a course of study culminating in attendance at a Bar Practice Course).  Although reluctant to give such leave bearing in mind the remarks by the learned Magistrate in his Reasons about Mr Bell’s lack of experience and his “inability to provide the sort of independent advice (that) counsel, whose responsibility to the Court is paramount, would be expected to give”, in the end, considering that he was the author of the Outline of Argument filed on 13 May 2010 on behalf of the appellant and that he had been the “lay advocate” below, I concluded that at least his appearance would assist the court, better than the appellant himself, in terms of convenience, expedition and efficiency in the proper discharge of this appeal.

12. [12]
    As will be considered below, Mr Bell was of some assistance, although many of the grounds of appeal had little or no merit, once analyzed.

13. [13]
    The only substantial grounds were:

1. (a)
   that the appellant was denied procedural fairness by the refusal of the learned Magistrate to allow potentially relevant evidence to be admitted at the trial hearing;

2. (b)
   that the learned Magistrate erred in his refusal to enforce compliance with a summons issued for relevant documents from the Queensland Civil and Administrative Tribunal (“QCAT”);

3. (c)
   that the learned Magistrate erred when he held that there was a family relationship between the  parties; and

4. (d)
   that there was a statutory preclusion from making costs orders adverse to the appellant. 

14. [14]
    I will consider, primarily, the four grounds identified and then deal with the other grounds more briefly.

“Family relationship”

15. [15]
    The power to make an order against a person under the Protection Act is given by s 20(1), insofar as it is relevant here. 

16. [16]
    For present purposes, it has three limbs. First, the court is required to be satisfied that the person against whom the order is made has committed an act of domestic violence against the other person. Secondly, the court must be satisfied that a domestic relationship “exists” between the 2 persons who are the subject of the application. And, thirdly, the court must be satisfied that the person against whom the order is made is likely to commit an act of domestic violence “again”. By s 9 of the Act, the court need only to be so satisfied on all 3 limbs “on the balance of probabilities”.

17. [17]
    The first and third limbs can be put to one side for the purposes of determining whether the “jurisdictional” point raised by the appellant has validity.

18. [18]
    By s 11A(1)(c), a “family relationship” is one of those 4 possible sub-sets of the set of “domestic relationship(s)” for the purposes of the Protection Act. 

19. [19]
    Before turning to the definition of a “family relationship”, it needs to be noted that s 12(2) of the Protection Act provides a definition of “spouse” which is expansive.  The Dictionary (contained in the Schedule: see s 3) defines a “spouse” by way of a referral back to ss 12(2) and 12(3).  For present purposes, s 12(2)(a) defines a spouse to “include” a “former” spouse.  It is unlikely that this is simply a reference to a deceased spouse, if only by the use of the language of continuing existence, at least with respect to s 12(1).  It probably has a wider meaning for its statutory-wide application. 

20. [20]
    That s 12(2) of the Protection Act is merely expansive (ie it should not be interpreted as stating that it is limited by its own expressed ambit) necessitates recourse to the Acts Interpretation Act 1954.  By s 32DA(6), it is stated that, in an Act “enacted” before the “commencement” of s 32DA, a reference to a “spouse” includes a reference to a de facto partner as defined in s 32DA “unless the Act expressly provides to the contrary”. 

21. [21]
    Section 32DA commenced on 1 April 2003. Section 12 was amended with present effect, along with the “definition” in the Schedule of “spouse”, to “commence” on 31 March 2003. 

22. [22]
    Complicating the issue somewhat is that both s 32DA and the amendment to s 12, although clearly in different Acts, were the subject of general “enactment” through the Discrimination Law Amendment Act 2002, being Act No. 74 of 2002.  Its date of assent was 13 December 2002.  By s 15 of the Acts Interpretation Act 1954, it is stated that, in an Act, a reference to the “enactment” of an Act is a reference to the fact of the “Act’s having received” the royal assent. 

23. [23]
    While there is no relevant express provision in the Acts Interpretation Act 1954 stating generally – rather than for a specific section – that a reference to “an Act” includes the reference to a “section of an Act”, given that s 10 of the Acts Interpretation Act 1954 states that every section of an Act has effect as a substantive “enactment” without introductory words, the conclusion can be sensibly reached that the reference to a “spouse” in the Protection Act at the present time, by force of s 32DA(6) of the Acts Interpretation Act 1954, can include a reference to a “de facto partner” as defined in that particular section.  See, also, s 22.  But even if “enactment” is truly confined to the original Act, then the Protection Act was “enacted” before the commencement of s 32DA. 

24. [24]
    Turning, then, to the most immediately important provision of the Protection Act, s 12B(1).  It states that a “family relationship” exists between 2 persons if 1 of them is “the relative” of the other.  In turn, s 12B(2) states that a “relative” is someone who is “ordinarily understood” to be, or to have been, connected to the person “by blood or marriage”.  By s 12B(3), for deciding if someone is “related by marriage”, any 2 persons who are, or were, “spouses” of each other are considered to be, or to have been, “married” to each other. 

25. [25]
    On the face of s 12B, considering the importance of the reference to “marriage”, it was initially considered by me that such a particular context meant that, when s 12B(3) brought into consideration the term “marriage”, it may well have been the purpose that the provision was extending the relationship by marriage to persons who were divorced or deceased and therefore no longer “married” to each other. On that approach, if marriage was so confined, since in this case there could be no connection by blood, an aggrieved person would not have been in a family relationship with the son of a female who was, or had been, in a de facto relationship: that is not a relationship of “marriage”.

26. [26]
    Here, the relationship relied upon by the aggrieved person, the respondent, is that the appellant was the son of a Mrs EAK (now, and at the time of the trial, deceased), who herself was a person with whom the aggrieved person alleged he had a de facto relationship which persisted to her death [which itself post-dated the time of the alleged act of (domestic) violence].

27. [27]
    Because an ambiguity does arise by reason of the qualification in s 32DA(6) of the Acts Interpretation Act 1954 (through the exclusion of the effect of that provision where an Act “expressly provides to the contrary”), in circumstances where the Schedule to the Protection Act defines “spouse”, which term is used in the whole of s 12B in ss 12B(2) and 12B(3) only (at least for present purposes), recourse can be had to s 14B(1)(a) of the Acts Interpretation Act 1954 which provides that, subject to s 14B(2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting the interpretation, if a provision is ambiguous or obscure, to provide an interpretation of it.  There is nothing in s 14B(2) which would preclude consideration of extrinsic material.  Section 14(3) states that “extrinsic material” includes an explanatory note or memorandum relating to the Bill that contained the provision that was laid before, or given to the members of, the Legislative Assembly by the member bringing in the Bill before the provision was enacted: see paragraph (e).  The section which introduced s 12B, arising from the Domestic Violence Legislation Amendment Bill 2001 which became the Domestic Violence Legislation Amendment Act 2002, was stated in the Explanatory Notes to have the effect that the “relatives of a person living in a de facto relationship are to be determined by treating the person as if they (sic) were married to their de facto partner”, thus meaning, for instance, “that the partner’s parents would be relatives of the person”: at page 8.  This was at a time when the definition of “spouse” in s 12(2) included, among other relationships, both “either 1 of a male or female who are or have been married to each other” and “either 1 of 2 persons, whether of the same or opposite sex, who are residing or have resided together as a couple”.  The latter provision was at that time also expanded by ss 12(3) and 12(4) to include some aspects of what now s 32DA embraces.

28. [28]
    Thus, though by a torturous path, I am of the view that, despite my early reservations, s 12B, properly interpreted, permits someone such as the respondent on appeal to be an aggrieved person within the meaning of the Protection Act because a family relationship can be established by way of a deemed marriage at the time of the relevant act of violence. 

29. [29]
    A subsidiary argument raised by the appellant was that, because of the use of the present tense in s 12B(1) and s 20 of the Protection Act, in circumstances where Mrs K had died by the time the application for the domestic violence order was sought, s 20 could not be engaged.

30. [30]
    That argument can be addressed briefly. The use of the present tense in those provisions simply means that the relationship must have begun to exist between the two persons who are the aggrieved and the respondent at the time of the qualifying act and to continue to exist between them both at the time of the application and when the relevant order is made pursuant to s 20. The fact that the beginning of the relationship depends upon establishing that the relevant connection arose by blood or marriage to a person who is now deceased does not mean that the family relationship, once established, ceased to exist. On any contrary interpretation, two step-siblings could not be the subject of a family relationship where the non-common parent had died. That seems an illogical approach to s 12B; and, therefore, unsustainable.

Admissible Evidence

31. [31]
    Section 84 of the Protection Act is headed “Evidentiary provision”. 

32. [32]
    Although s 14(2) of the Acts Interpretation Act 1954 means that that heading is not part of the Act (it having been inserted before 30 June 1991), it is clear that s 84(2)(a) is relevant to the proceeding both before the learned Magistrate and before this Court on review.  It provides that, in any proceeding with a view to making a protection order, 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” (emphasis added). 

33. [33]
    It was not in dispute at the appeal hearing that s 84(2) was, and is, applicable both at trial, and on appeal.

34. [34]
    In DMO v RPD [2009] QDC 92, McGill SC DCJ considered the effect of s 84(2) of the Protection Act.  After reference to ss 38(2)(a), 146(1) and 148 of the Justices Act 1886, he noted that those procedures are modified by the terms of s 84(2), also referring to s 84(3) which expressly provides that the court or magistrate need not have the personal evidence of the aggrieved before making a domestic violence order (though that is presently irrelevant): at [7]-[8].  After noting that provisions of this nature do not exclude an obligation to accord procedural fairness, he held that they did not have the effect that an order can be made without a proper basis, the position being simply that the formal rules of evidence do not apply so that it would open, for example, in an appropriate case to receive material “which would ordinarily be excluded as hearsay, or to receive evidence in written form”: at [9].  Nevertheless, he added that there must still be evidence, in the sense of there being some material put before the court which provides a rational basis for arriving at the state of satisfaction contemplated by s 20, and that it must be put before the court “in a way which gives the opposite party the opportunity to challenge that evidence, and to put the opposite party’s case in relation to the matter”: also at [9]. 

35. [35]
    The effect that s 84(2) of the Protection Act must have is that evidence which can now be led under, for instance, the Evidence Act 1995 (Cwth), the Evidence Act 1995 (NSW), the Evidence Act 2008 (Vic) and part of the Evidence Act 2001 (Tas), dealing with “the first-hand” hearsay exceptions, must be the kind of evidence which should be considered in terms of admissibility.  Those particular provisions apply when, for instance, a person is dead and therefore “unavailable”.

36. [36]
    Illustrative of that approach is Cox v State of New South Wales (2004) 71 NSWLR 225.  There, the plaintiff, although 18 years of age at trial, was called as a witness in a claim for the damages that he made for personal injuries that he alleged he suffered as a child.  Simpson J, holding that the plaintiff had no recollection of the events because of psychiatric conditions suffered, considered that he was not capable of giving a rational reply to questions about facts going to the proof of physical assaults as a child: at 228-220 [15]-[16].  Accordingly, he held: that the plaintiff was relevantly “unavailable” to give evidence; that, consequently, the hearsay rule did not apply to oral evidence (of the representations) given by a person who saw, heard or otherwise perceived the representations being made; and that the plaintiff’s mother came into that category, with the result that her evidence was “therefore admissible”: at 229 [17]. 

37. [37]
    Here, as was rightly conceded by counsel for the respondent - who was counsel for the aggrieved person below – many successful objections were taken by him to the leading of “hearsay” evidence of that first-hand kind when attempts were made by the appellant, as respondent below, to adduce evidence from witnesses about what Mrs K said when alive, where such statements directly went to the matters which s 32DA of the Act Interpretation Act 1954 enumerated concerning the existence of a de facto relationship.

38. [38]
    Successful objections made were on the basis that the evidence was inadmissible hearsay. Although, following a more general argument at the beginning of Day 2, the learned Magistrate noted that the Protection Act gave him latitude in respect of hearing evidence and that he was “not bound by the rules of evidence”, he concluded that, “in broad terms, the rules of evidence will be complied with”: at T: 2-7, ll 25-32.  He subsequently required such compliance. 

39. [39]
    It is also important that in his Reasons the learned Magistrate stated that he had made determinations in respect of some evidence “on the basis set out in the transcript in each case”, either “allowing a question or disallowing it on the basis of hearsay or relevance in the majority of cases”: at T 1-4.

40. [40]
    The problem is generated by the fact that the learned Magistrate’s attention was not drawn to s 84(2) of the Protection Act where counsel for the aggrieved person took very strong objections when hearsay evidence of a first-hand kind arose, or even was likely to arise.  A survey of the whole of the transcript of the evidence before the magistrate, including those sections dealing with other than oral evidence, shows that there were many occasions upon which objections, on the grounds of hearsay, to first-hand hearsay, were upheld. 

41. [41]
    This must mean that there was relevant evidence which may have been able to have been led before the trial court which was not. This offends against the principle of procedural fairness referred to in DMO.

42. [42]
    As McGill SC DCJ determined in Al Shakarji v Mulhern [2010] QDC 476, where a party is deprived of a proper opportunity to provide the trial court with the benefit of evidence upon which both the trial court and the court on appeal when conducting its review can reach a conclusion with a view to deciding the matters in issue, it is appropriate to allow an appeal: at [50].

Subpoena

43. [43]
    The provision of the Protection Act which allows notices to be served requiring persons to attend a hearing personally to give evidence and, or alternatively, to produce records in the person’s possession is s 39.  In technical terms, it is described as a “summons”.

44. [44]
    By s 39(2) of the Protection Act, a person served with a summons to attend as a witness must not fail, without reasonable excuse, to attend and produce any record that the person was required to produce by the summons.

45. [45]
    The ability to set aside such a summons is provided by s 39AA of the Protection Act.  By s 39AA(1) the court may set aside a summons if the court is satisfied that there are sufficient grounds for setting aside the summons including: want of relevance; privilege; or oppressiveness.  Further, s 39AA(2) states that the court may act on the application of the person served with the summons “or on its own initiative”.

46. [46]
    By a Summons dated 4 January 2010, issued pursuant to s 39, the Chief Executive Officer, or registrar, of QCAT was summonsed to attend the hearing of the application for the protection order in this proceeding and to bring all documents in its possession or control created or received since the beginning of 2007 referring to EAK. It was returnable on 14 January 2010. By letter of QCAT dated 6 January 2010 and received at the Magistrates Court, Sandgate on 7 January 2010, a Senior Legal Research Officer of QCAT wrote to the registrar of the Magistrates Court at Sandgate referring to the service of that summons and requesting that the court set aside the summons in accordance with s 39AA of the Protection Act “for want of relevance”.  By a hand-written note on a copy of that letter, and dated 6 January 2010, the acting registrar of the Magistrates Court at Sandgate stated that he phoned QCAT and advised that there was no need to produce anything on 14 January 2010 as the magistrate “will” set aside the summons unless he “can be convinced otherwise”.

47. [47]
    In his Reasons, the learned Magistrate referred to this issue. After noting that documentation was “subpoenaed” from QCAT and that the court received a letter from that Tribunal advising that it did not propose to provide the material, he stated that he “ruled” that if Mr Bell could persuade QCAT to respond to the subpoena, “then well and good”, but that he “would not enforce the subpoena”, since he could not be satisfied either that he should force QCAT to divulge the information “which was private” or “that anything that happened in 2007 would be relevant to what was happening since” shown at T: 1-11. The transcript of the proceeding is not inconsistent with that summation.

48. [48]
    It was common ground on appeal that nothing was produced voluntarily by QCAT.

49. [49]
    Since it is clear that the learned Magistrate did entertain argument at trial concerning the summons served on QCAT, it becomes irrelevant that the court notified QCAT that it would not enforce the subpoena unless convinced otherwise. Necessarily, such a decision should only be made after hearing submissions from all concerned parties. The reference in s 39AA(2) that the court may act “on its own initiative” does not permit the court to make decisions in advance of both parties making any relevant submissions that they might wish to make.

50. [50]
    Nevertheless, the issue of concern here is whether the decision was correct. It would appear that part, at least, of the reason for refusal was “want of relevance”, yet that aspect was determined without the production of the documents required by the summons and in circumstances where it is at least arguable that material lodged with or otherwise given to QCAT with respect to the capacity of Mrs K to conduct her everyday affairs might well touch upon medical and other matters which could go to her capacity to form, or at least to be able to understand what was involved in, a de facto relationship.

51. [51]
    Given the fact that the relaxation on the rules of evidence may well have permitted medical (and perhaps other kindred) reports, if not other documents, to become admissible pursuant to relevant expanded hearsay exceptions, a failure to consider the actual material which had been summonsed could well have led to a serious denial of procedural fairness in this case in its own right.

52. [52]
    Since I have otherwise held that the appeal must succeed because of a denial of procedural fairness concerning other excluded but potentially admissible evidence, it is unnecessary to consider the second aspect of this issue either.

53. [53]
    That second aspect arises from the contention, on appeal, by counsel for the respondent (being the aggrieved person at first instance) that the present appellant stated to the court that he would not be calling any witnesses who might prove the truth of representations that might be contained in the production of documents so summonsed from QCAT. A survey of the evidence led at first instance shows that that contention can be sustained.

54. [54]
    Nevertheless, it raises the subsidiary concern of whether, even so, it might have been open to the appellant (as respondent in first instance) to rely upon, potentially, documents pursuant to exceptions to strict evidentiary rules, without the necessity to call, for instance, the author of a professional report.

55. [55]
    This, therefore, gives support to the conclusion reached above concerning the failure of the court at first instance to permit all relevant material to be led. It also has the consequence that I cannot, on appeal, form any view about what the proper outcome should have been at first instance, in circumstances where the appeal is “on the record” and the evidence under consideration would not be “new” evidence.

Basis of Costs Orders

56. [56]
    Section 61 of the Protection Act states that a court “may not award costs” on an “application for a protection order”, “unless” the court “dismisses the application” as malicious, deliberately false, frivolous or vexatious: see paragraph (a).  Here, the contention is advanced by the appellant that s 61 of the Protection Act was not engaged when, among the many matters of costs’ orders made, the learned Magistrate ordered that the present appellant pay costs thrown away, on an indemnity basis, for the adjournment of the trial on 24 November 2009 and pay indemnity costs for two further adjournments.  Reasons were given on all occasions.  Such reasons were based upon the appellant, as the then respondent, failing to be ready to proceed to trial on the date appointed and from the attempts of his lay counsel, Mr Bell, to go on a “fishing expedition” which was “ill advised” and for the which other side “should not be saddled with the cost and expense”: at T: 1-13.

57. [57]
    It is clear that the reference to a “court”, by the Dictionary in the Schedule [referring to s 4(1)], covers the Magistrates Court in this instance: see paragraph (a).  Next, the word “may” in this context is simply an empowering or facultative word, although, if the circumstances for its application are established, it must be used according to the terms of the statute itself, meaning that sometimes the “discretion” can only, conformably with the statute, be exercised in a particular way: see Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1993-1994) 182 CLR 51 at 81.  That this approach can extend to courts was endorsed by Dawson J: at 97, though in dissent on there being a discretion, rather than a duty. 

58. [58]
    The power given to a court such as the Magistrates Court to order costs does not reside “inherently”.  As demonstrated by Keane JA in Tamawood Limited v Paans [2005] 2 Qd R 101, it is clear that the power of a court or tribunal to award costs to a party is “now the creature of statute”, citing, among authorities, Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 193: at 110 [23].  As further expressed, the nature and extent of that power can only be discerned by a close consideration of the terms of the statute which creates the power and prescribes the occasions for, and the conditions of, its exercise: also at 110 [23].  Lastly, he noted that, in the performance of this task, observations of the courts in relation to the operation of other statutory regimes relating to the costs may afford general assistance “but they cannot be allowed to distract attention from the terms of the particular statute in question”: also at 110 [23].

59. [59]
    It is also relevant to note that s 38(2)(a) – referred to earlier – states that, to remove doubt, it is declared that for proceedings under the Protection Act for a Magistrates Court, or magistrate, the provisions of the Justice Act 1886 apply to the proceeding “unless” the application of that Act is inconsistent with the Protection Act.  Thus, if any other statutory power is to be identified as the possible source of the power to award costs (prior to an appeal), it must be the Justices Act 1886 rather than the Uniform Civil Procedure Rules 1999. 

60. [60]
    As remarked by Chesterman JA, although in dissent as to the disposal of the appeal, in Smith v Ash [2010] QCA 112, though costs in summary criminal proceedings do not follow the event as they do in civil proceedings, a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for payment of costs because it is just and reasonable that the informant should reimburse him for a liability to pay costs which have been incurred in defending the prosecution; and the same observation applies, he apprehended, to successful prosecutors: at [100].  As he later observed, in the case in question an award of professional costs, in the modest sum requested, could not have been refused on any reasonable basis: at [107].  What those extracts from Smith establish is that there is no such order as a payment on an “indemnity basis” under the Justices Act 1886.  It is a matter of addressing the issues required by ss 157 to 159 (inclusive).  Thus, it is necessary, for instance, that s 158B would need to be the subject of some consideration, which it was not. 

61. [61]
    Nevertheless, there is an anterior concern here. That is whether s 61(a) of the Protection Act has as its purpose a significant limitation on the power to award costs, such that these cannot be relevant circumstances in which s 38(2)(a) has application because of relevant inconsistency. 

62. [62]
    It is arguable, as the respondent to the appeal has done in his Outline of Argument, that the section does not purport to deal with the situation of a party either being the respondent to the whole of the proceeding who, or the applicant with respect to part of the proceeding who, has acted maliciously, deliberately falsely, frivolously or vexatiously. But, if the terms of the statute creating the power prescribing the occasions for its exercise do not permit the power to be exercised in such circumstances, then that is the effect of the limitation on the grant of power. Since the provision is ambiguous or obscure, it is possible, as analyzed before, to have reference to the relevant Explanatory Notes. Section 61, in its present form, became the then s 24 by reason of the Domestic Violence (Family Protection) Act Amendment Bill 1992 which in turn became the Domestic Violence (Family Protection) Amendment Act 1992 (No. 46).  The relevant Explanatory Notes state that the replacement for the old s 24 “sets out the conditions on which a court may award costs” (emphasis added).  There is no indication of any kind that there was to be reliance upon any other empowering provision concerning costs.  With that assistance, a construction which interprets the power to award costs under the Protection Act to be generally a “no-costs jurisdiction”, except to the extent to which s 61 otherwise provides, is the construction that should be adopted here.  So, despite the factors that were otherwise discussed in Smith by the majority which would favour a wider reading of the power to award costs, I conclude that there is a strict limitation on the power here and the conditions for the application of that power have not been met. 

63. [63]
    This must mean that all orders as to costs made in the Magistrates Court below must be also discharged.  Furthermore, because otherwise the appeal is successful, no reliance can be placed upon s 66(1)(b) of the Protection Act to make “such (other) order” as this court considers should have been made at first instance.

64. [64]
    In reaching this conclusion, I am reassured by the observation in the Court of Appeal decision of Amos v Brisbane City Council [2006] 1 Qd R 300 that the language of the provision there under consideration, which did not preclude the court from awarding costs generally, was said to be “in stark contrast” to that of s 325(1) of the WorkCover Queensland Act 1996 which then provided that no order about costs, other than an order allowed under that section, was to be made by the court in the proceeding: at 305 [21].  While the latter is certainly clearer, the contrast here to that latter provision is neither starkly nor obviously different in apparent effect. 

Other Grounds

65. [65]
    The appellant has contended that the application at first instance was mainly, or purely, to gain a collateral advantage in foreshadowed proceedings to challenge the deceased’s Will (which bequeathed all of the deceased’s Estate to her only son, the present appellant).

66. [66]
    The learned Magistrate’s Reasons dealt with that concisely, and appropriately. He held that any decision of his would have no bearing on any other proceeding: at T: 1-3, 1-4.  While his attention does not seem to have been drawn to such decisions as Williams v Spautz (1992) 174 CLR 509, it is clear that there was nothing before the learned Magistrate which would have established that the existing proceeding could be characterised as an abuse of process.  Applying all the principles relevant to this appeal, I come to the same conclusion. 

67. [67]
    The appellant also agitated a ground to the effect that there was no sufficient evidence upon which the learned Magistrate could rely to find that the third of the three limbs of s 20 of the Protection Act mentioned earlier was established (namely, a likelihood that the appellant would commit an act of domestic violence again).

68. [68]
    In his Reasons, the learned Magistrate specifically referred to relevant authority (namely, MAN v MAM [2003] QDC 398 at [19]) and then concluded that the test was “clearly met” having regard to the level of animosity between the parties and having regard to the ongoing level of conflict which he held would exist concerning an application by the aggrieved party for provision out of the Estate of Mrs K, as her de facto partner: at T: 1-6 1-7.  He then determined that, in those circumstances, it was most likely that domestic violence would occur in the future were he not to make an order: at T: 1-7.

69. [69]
    Subject to the matter to be mentioned next concerning credibility of witnesses, it was open to the learned Magistrate to find as he did. On a full review of all the evidence, I too accept that the relevant likelihood discussed by McGill SC DCJ in MAN existed.  This is particularly so where there was not only evidence of the matters mentioned by the learned Magistrate but also evidence of occasions of police investigation and comments from the appellant that he would be “robbed by”, or even “kill”, the respondent.  Moreover, the ongoing resentment felt by the appellant resulting from the respondent continuing to reside in the deceased’s unit (which, by the Will, was bequeathed to the appellant) shows that all of the inferences to be properly drawn are ones that clearly led to the requisite satisfaction. 

70. [70]
    Turning, then, to the issue of credibility, while it is noted that the learned Magistrate made no specific findings of credit other than expressly finding that Mr B, a friend of Mr C, was “a very conscientious witness and an honest and reliable one” and that he had “no reason to disbelieve him”, being “satisfied” that he “heard and saw an altercation between the parties that amounted to domestic violence on the part of Mr  G”, he additionally found that there was “no reason to disbelieve” Mr C when he said that he did certain things for Mrs K and that they shared a caring and supportive relationship, and, further, that the witnesses called by Mr G, in so far as their evidence attempted to discredit Mr C, were found “wanting”.  It is obvious that the learned Magistrate implicitly accepted the overall evidence presented by Mr C.  This is also demonstrated by his acceptance of Mr C’s evidence concerning the relationship that it amounted to a genuine de facto relationship (in referring to, and adopting, submissions made by Mr C’s counsel): at T: 1-10, 1-11.  Consequently, there is no sound basis to attack the findings of credit.  For my part, required as I am to pay due deference to such findings while reviewing the evidence in full and drawing my own conclusions, including those based upon inferences, I also conclude that the evidence led by Mr C – in contrast to that led by Mr G – was both credible and met the relevant level of satisfaction that s 9 of the Protection Act requires, even bearing in mind considerations such as those raised in Rejfek v McElroy (1964-1965) 112 CLR 517.

71. [71]
    The determinations that I have made concerning first-hearsay do not require me to analyse the issue of what hearsay involves under the ordinary rules of evidence. My attention was drawn by the appellant to The Queen v Hendrie (1985) 37 SASR 581.  There, it was not held to be hearsay where the prosecution tendered evidence of a conversation, deposed to by a murdered women’s husband, which was said to have occurred between the woman and her husband some little time before the day of the crime.  Since the evidence was directed to the deceased’s state of mind (which tended to provide an explanation for her presence at the scene of the attack) – which may be proved by contemporaneous statements made by that person, being original circumstantial evidence tending to establish such a state of mind - the matter is not of direct relevance here, in any event, except perhaps to the limited extend of her capacity to form any relationship (which is picked up in the general non-application of the rules of evidence in any event).

72. [72]
    Many of the other grounds have become irrelevant because of the decisions that I have reached with respect to the preclusion of evidence referred to above. The remainder have no merit.

Outcome and Orders

73. [73]
    The appeal provisions of the Protection Act give the court limited options when, as here, the court, on appeal, decides to allow the appeal.

74. [74]
    As analysed by McGill SC DCJ in DMO, there is no power to declare the decision “a nullity and there is no express power to send the matter back for a proper hearing before a magistrate, such a power being of a nature that it will not be implied”: at [23] relying, for the last proposition on R v His Honour Judge Dodds and the Stipendiary Magistrate at Emerald, ex parte Smith and Graham [1990] 2 Qd R 80.  In DMO, the orders made were: that the appeal was allowed; that the protection order made was set aside; and that, in lieu thereof, it was ordered that the application for a protection order by the respondent against the appellant be dismissed.

75. [75]
    Having independently reviewed the power under s 66 of the Protection Act, the orders that I intend to make are:

1. (a)
   that the appeal be allowed;

2. (b)
   that the protection order made by the Magistrates Court at Sandgate on 19 February 2010 be discharged and, in lieu thereof, the application for such be dismissed; and

3. (c)
   that all other orders made by the Magistrates Court at Sandgate in the proceeding, including orders as to costs, be discharged.

76. [76]
    Although I am given power pursuant to s 66(3) of the Domestic and Family Violence Protection Act 1989 to make such orders as to costs under appeal as I think proper, considering that the appellant has succeeded but has not been represented, or appeared, by a lawyer, particularly bearing in mind s 52(2) of the District Court of Queensland Act 1967 and the approach of the High Court in Cachia v Hanes (1994) 179 CLR 403 (discussed in CAR & Anor v Department of Child Safety [2010] QCA 49 at [4]), I make no orders as to costs of the appeal.