NBE v PRT[2018] QDC 29

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 10 May 2016, the applicant filed a notice of appeal against a decision identified as being given on 5 April 2016, being the decision of a Magistrate sitting at Hervey Bay in respect of the applicant’s application for a protection order pursuant to the Domestic and Family Violence Protection Act 2012 (the “DFVPA”), an application which had been filed by the applicant on 21 October 2015.

2. [2]
   The applicant, as she had been in respect of the filing of her application for a protection order and the proceedings in the Magistrates Court, filed the notice of appeal and pursued her appeal in this Court, as a self-represented litigant.

3. [3]
   Although the notice of appeal expressly indicates that the applicant is appealing “the whole” of the decision made on 5 April 2016, it is also expressly stated that the operative part of the decision which is subject to the appeal is:

“Appealing that order application dismissed – aggrieved ordered to pay the respondent’s costs in the sum of $9,223.30.”

4. [4]
   Those orders were made by the Magistrate on 5 April 2016, after the applicant did not attend at the Court for the listed hearing of her application on 11 January 2016 and when the Magistrate heard the uncontested evidence of the first respondent in response to the allegations set out in the applicant’s application and submissions from his legal representatives.

5. [5]
   Accordingly this appeal purports to have been brought pursuant to s 164 of the DFVPA. However, the first issue that arises is that it has not been brought in accordance with s 165(4), in that the notice of appeal was not filed within 28 days after the day on which the decision was made. It may be noted that this is the appropriate consideration, having regard to the circumstance that the applicant is noted as appearing, by telephone, on 5 April 2016. In fact she is recorded as then observing, after the Magistrate had confirmed that the parties had received a copy of his written reasons and decision and then formally made the orders which are the subject of this appeal, that she had obtained legal advice to appeal the decision and that her “lawyer’s appealing it”.^[1] 

6. [6]
   To exercise her right of appeal, the notice of appeal should have been filed not later than 3 May 2016. However, s 165(5) allows this Court to extend the period for filing of the notice of appeal. It is well established that the general principles applicable to such an application require consideration of two matters in particular:

1. (a)
   Whether there is good reason for the delay; and

2. (b)
   Whether it would be in the interests of justice to grant the extension.^[2] 

Generally those principles recognise that there is need to make, where feasible, at least some provisional assessment as to whether the prospective appeal is a viable one and to take into account that assessment of the apparent strength or viability of the appeal in deciding whether the case is a fit one for granting the extension.  That approach also allows for consideration of the proffered reasons for and length of delay and whether such delay has occasioned any relevant prejudice to the respondent. 

7. [7]
   In this matter, there is no particular or clear explanation put forward for the delay, of one week, in filing the notice of appeal, except for lack of understanding of the time constraints and difficulties encountered in the applicant ultimately acting in a self-represented capacity. There is no clear explanation as to what eventually transpired in respect of the involvement of any lawyer, as indicated by the applicant, on 5 April 2016, but her observations then put the respondent on notice as to her intention to appeal and no relevant prejudice to him has been identified in the event that an extension of time be granted.

8. [8]
   Further and where, as here, and in accordance with the usual practices of this Court and in the absence of any application by the respondent to do otherwise, the parties have prepared written outlines in respect of the grounds of appeal and then appeared before the Court to effectively argue the appeal and, subject to one matter that arises, it is both feasible and appropriate for the issue as to whether or not an extension of time is to be allowed to be finally determined, together with the determination of the merits of the appeal. Another matter favouring that approach and also the prospects of an extension of time in any event, is that the second respondent has sought to exercise the right granted pursuant to s 167 of the DFVPA to be heard on the appeal. As will be discussed in more detail below, that is for two main reasons:

1. (a)
   First, to deal with the applicant’s assertions as to an expectation that her application for a domestic violence order was to be or would be, pursued before the Magistrate by a police prosecutor; and

2. (b)
   Secondly, as to the unusual circumstances in which this matter was determined and particularly the order as to costs made below. 

9. [9]
   The matter to which the preceding observations remain subject is that, upon the hearing of this appeal, it became clear that, for various reasons that were given by her, the appellant expressly indicated that she was only seeking the intervention of this Court in relation to the costs order made against her and that she did not seek that the Magistrate’s order dismissing her application for a domestic violence order be set aside or, more particularly, that her application be reheard. Therefore, the immediate question is whether the proposed appeal lacks intrinsic merit because, as the first respondent contended, it is not brought in accordance with s 164 of the DFVPA, which provides:

“164  Who may appeal

A person who is aggrieved by any of the following decisions of a court may appeal against the decision—

1. (a)
   a decision to make a domestic violence order;

2. (b)
   a decision to vary, or refuse to vary, a domestic violence order;

3. (c)
   a decision to refuse to make a protection order;

4. (d)
   if the person sought a temporary protection order in a proceeding under this Act—a decision to refuse to make the order.” 

In essence, the contention is that the applicant’s approach makes the appeal she wished to pursue an appeal only against the costs order made for the first respondent’s benefit and that this is not allowed by s 164. 

10. [10]
    However, it must be noted that the power that was exercised to make the costs order,^[3]in this case, is a limited one and exceptional in that the usual position is that no costs may be recovered in respect of proceedings conducted in the Magistrates Court under the DFVPA.  That is because s 157 provides as follows:

“157 Costs

1. (1)
   Each party to a proceeding for an application under this Act must bear the party’s own costs for the proceeding.

2. (2)
   However, the court may award costs against a party who makes an application that the court hears and decides to dismiss on the grounds that the application is malicious, deliberately false, frivolous or vexatious.

3. (3)
   In this section—

party includes an aggrieved.”

11. [11]
    Given the necessity not only for dismissal of an application but dismissal upon a basis which engages s 157(2), the appeal as far as the applicant proposes to pursue it, must necessarily be regarded as brought “against…a decision to refuse to make a protection order” within the meaning of s 164(c). It is an entirely separate matter as to what, if any, power given to this Court under s 169(1) of the DFVPA is sought to be engaged by the applicant. And further and if it is appropriate to do so and dependent upon the nature of any error determined as to the Magistrate’s decision, those powers are broad enough to provide for protection of any appropriate interest of the respondent in vindicating the order presently made in his favour.

12. [12]
    The position of the applicant also complicated her approach to the application and proposed appeal to this Court. She had filed her notice of appeal with the inclusion of the following grounds:

“1. Applicant had a valid medical certificate with reasons for non-appearance at hearing dated 5 Jan – 30 days.

…

3. Both fresh evidence and evidence of lies and untruths told by the Respondent under oath, is now available to the court to enhance previous DVO evidence.”

And she had subsequently filed a quantity of handwritten statements and copied documents. However, the admission of any “fresh evidence” was opposed by the first respondent and the result is that no party pressed that any part of the appeal be heard afresh, pursuant to s 168(2) of the DFVPA. Accordingly and pursuant to s 168(1), the application proceeded on the basis of a proposed appeal which would be “decided on the evidence and proceedings before the court that made the decision being appealed”. 

13. [13]
    When regard is had to the powers provided upon such an appeal,^[4]this may be recognized as providing for an appeal by way of rehearing on the record of the proceedings below. And in respect of a similar type of appeal provided in s 222 of the Justices Act 1886, it is established that this Court is required to conduct a review of the proceedings and ultimately correct any legal, factual or discretionary error of the Magistrate, determined on the basis of that review and this Court’s own conclusions.^[5]Necessarily, regard must be had to the issues raised by the grounds of appeal.^[6]And here, that particularly left for consideration the following:

“2. Appellant understood that the local Police Prosecutor would be appearing on her behalf along with a trusted Advocate who had permission to speak on her behalf.”

14. [14]
    Whilst, as has been noted above, the proposed appeal seeks the setting aside of the exercise of discretion by the Magistrate to make the costs order, the power to do so is expressly limited to circumstances where at least one of the specified factual findings is made, effectively as a pre-condition to any exercise of discretion. This is a different situation to that which prevailed under the earlier Domestic and Family Violence Protection Act 1989 and as discussed in LKF v MRR.^[7] Here the power is fully expressed in s 157(2), and as a limited departure from the general rule stated in s 157(1) that the parties are expected to bear their own costs for proceedings under the DFVPA. So much may be seen as being consistent with the objects of the DFVPA as set out in s 3 and the principles for administering the Act, as set out in s 4, and in that context, seeking to balance the need for absence of discouragement to persons “who fear or experience domestic violence” in approaching the Court but also not leaving the door open to manifestly groundless or mischievous proceedings.^[8]

15. [15]
    Moreover there is no need or warrant for resort to the Justices Act 1886, as the Domestic and Family Violence Protection Rules 2014, Part 7, provides the mechanism for the fixing or assessment of such costs and a scale by which that is to be done. Further and in terms of s 143(a), it would be inconsistent with the DFVPA to seek to apply the provisions of the Justices Act 1886 in this respect, because of the effect of s 142(1)(a) in applying the provisions of the Domestic and Family Violence Protection Rules 2014 to a proceeding in a court under the DFVPA.

16. [16]
    As some context for the consideration of the issues which arise in respect of the appeal sought to be pursued by the applicant, it is desirable to note the provisions empowering a Magistrates Court to hear and determine applications made under the DFVPA.

17. [17]
    A “domestic violence order” is defined in s 23:^[9]

“23  What orders can a court make to prevent domestic violence

3. (1)
   A court can make a domestic violence order against a respondent for the benefit of an aggrieved.

3. (2)
   A domestic violence order means—

1. (a)
   a protection order; or

2. (b)
   a temporary protection order.

3. (3)
   A temporary protection order is an order made in the period before a court decides whether to make a protection order for the benefit of an aggrieved.

4. (4)
   Sometimes, the court can make a domestic violence order even though the person against whom the order is made—

1. (a)
   is not notified about an application for a domestic violence order; or

2. (b)
   does not appear in court.”

18. [18]
    A “protection order” is defined as meaning “an order made under s 37”^[10]and s 37 provides:

“37  When court may make protection order

3. (1)
   A court may make a protection order against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that—

1. (a)
   a relevant relationship exists between the aggrieved and the respondent; and

2. (b)
   the respondent has committed domestic violence against the aggrieved; and

3. (c)
   the protection order is necessary or desirable to protect the aggrieved from domestic violence.

2. (2)
   In deciding whether a protection order is necessary or desirable to protect the aggrieved from domestic violence, the court—

1. (a)
   must consider the principles mentioned in section 4; and

2. (b)
   may consider whether a voluntary intervention order has previously been made against the respondent and whether the respondent has complied with the order.

3. (3)
   If an application for a protection order names more than 1 respondent, the court may make a domestic violence order or domestic violence orders naming 1, some or all of the respondents, as the court considers appropriate.”

19. [19]
    The concept of “domestic violence” is defined broadly in s 8 and in the context of some of the issues raised in this matter, it may be noted to include, if there is a “relevant relationship”,^[11]behaviour of a person that “is emotionally or psychologically abusive”,^[12]or that “in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else”,^[13]or which is “unauthorised surveillance of a person”.^[14]And “associated domestic violence” occurs if any behaviour which is within the meaning of “domestic violence” is directed towards a child, relative or associate of an aggrieved.^[15]

20. [20]
    The general conferral of jurisdiction upon a Magistrates Court is by s 136 of the DFVPA, which provides:

“136  Conferral of jurisdiction

3. (1)
   A court has jurisdiction—

1. (a)
   to hear and decide any application made to the court under this Act; and

2. (b)
   to perform any other function or exercise any other power conferred on the court under this Act.

3. (3)
   Despite any other law or rule of court, a Magistrates Court in any district may hear and decide a proceeding that has been started in a Magistrates Court in any other district.”

And although the definition of “Court” in s 6 is not so limited, it suffices to note that it includes a Magistrates Court or Magistrate, to which or whom an application is made.^[16]  Pursuant to s 32(1), applications for a protection order are permitted to be made to a Magistrates Court by:

“(a) an aggrieved; or

2. (b)
   an authorised person for an aggrieved; or

3. (c)
   a police officer under section 100(2)(a); or

4. (d)
   a person acting under another Act for an aggrieved.”

The immediately following sections deal with the allocation of a date for hearing and service of any such application and need not be considered in any detail, as it is common ground, in this case, that, to the knowledge of the parties, the application had been listed for hearing on 11 January 2016. 

21. [21]
    However, the sections that immediately follow s 37, should be noted as dealing with some alternative situations that might arise upon such a listing or hearing:

“38  Hearing of application—appearance of respondent

1. (1)
   This section applies if a respondent appears before the court that is to hear and decide an application for a protection order.

2. (2)
   The court may—

1. (a)
   hear and decide the application; or

2. (b)
   adjourn the application, whether or not it makes a temporary protection order under division 2; or

3. (c)
   subject to subsection (3), dismiss the application without deciding it.

3. (3)
   The court may dismiss an application without deciding it only if—

1. (a)
   the applicant has not appeared; and

2. (b)
   if the applicant is a police officer—no other police officer or service legal officer has requested an adjournment; and

3. (c)
   no other person eligible to apply for the protection order has appeared.

3. (4)
   The dismissal of an application does not affect the right of the applicant to make a further application against the respondent.

39  Hearing of application—non-appearance of respondent

1. (1)
   This section applies if a respondent fails to appear before the court that is to hear and decide an application for a protection order and the court is satisfied that the respondent has been served with a copy of the application.

Note—

If a respondent has been served with a police protection notice, because of section 112, the respondent is taken to have been served with a copy of an application for a protection order.

2. (2)
   The court may—

1. (a)
   hear and decide the application in the absence of the respondent; or

2. (b)
   adjourn the application, whether or not it makes a temporary protection order under division 2; or

3. (c)
   subject to section 156(1), order the issue of a warrant for the respondent to be taken into custody by a police officer and brought before the court.”

22. [22]
    And the following further provisions of the DVFPA should be expressly noted:

“145  Evidence

1. (1)
   In a proceeding under this Act, a court—

1. (a)
   is not bound by the rules of evidence, or any practices or procedures applying to courts of record; and

2. (b)
   may inform itself in any way it considers appropriate.

3. (2)
   If the court is to be satisfied of a matter, the court need only be satisfied of the matter on the balance of probabilities.

3. (3)
   To remove any doubt, it is declared that the court need not have the personal evidence of the aggrieved before making a domestic violence order.

146  Right of appearance and representation

1. (1)
   A party to a proceeding under this Act may appear in person or be represented by a lawyer.

2. (2)
   A police officer or service legal officer may appear in any proceeding under this Act.

3. (3)
   In this section—

party includes an aggrieved.

147  Representation of aggrieved

1. (1)
   A police officer, service legal officer or authorised person for the aggrieved may appear and act on behalf of an aggrieved in a proceeding for any application under this Act.

2. (2)
   If an authorised person for an aggrieved has made an application under this Act to a court and the court decides the authorised person is not able to help it, the application is taken to have been made by the aggrieved.”

23. [23]
    For the purposes of s 147(2) and the reference in s 38(3)(c) to a “person eligible to apply for the protection order”, the following definition of “authorised person, for an aggrieved”^[17]is found in s 25:

“25  Who can apply for a protection order

1. (1)
   An application for a protection order can be made only by—

1. (a)
   an aggrieved; or

2. (b)
   an authorised person for an aggrieved; or

3. (c)
   a police officer under section 100(2)(a); or

4. (d)
   a person acting under another Act for the aggrieved.

Examples of persons acting under another Act—

• a guardian for a personal matter of the aggrieved under the Guardianship and Administration Act 2000
• an attorney for a personal matter of the aggrieved under an enduring power of attorney under the Powers of Attorney Act 1998

2. (2)
   An authorised person for an aggrieved means—

1. (a)
   an adult authorised in writing by the aggrieved to appear on behalf of the aggrieved; or

2. (b)
   an adult whom the court believes is authorised by the

aggrieved to appear on behalf of the aggrieved even

though the authority is not in writing.

Example for paragraph (b)—

A 19 year old man has a physical disability that results in him not being able to sign an authority. He alleges his uncle has threatened physical harm to him. The man orally authorises his grandfather to apply for a protection order against the uncle. The court may believe the grandfather is authorised to appear on behalf of the man after hearing evidence about the authorisation.

3. (3)
   A person who may make an application for a protection order under subsection (1) may make other applications or bring other proceedings under this Act in relation to a domestic violence order made because of the application for the protection order.

The Magistrate’s Decision

24. [24]
    The issues that arise on this proposed appeal may be discerned from an analysis of the reasons given for the Magistrate’s decision. In those reasons, he respectively referred to the applicant as “NBE” and the respondent as “PRT”. And at the outset, it was noted that the proceeding related to an application for a protection order, which was declared by the applicant and filed on 21 October 2015. As the Magistrate summarised it, that application sought the following:

“(a)  That the respondent be of good behaviour towards her and that he not commit any acts of domestic violence.

2. (b)
   That he be of good behaviour towards the named person and not commit an act of associated domestic (sic) against them;

3. (c)
   That he (sic) prohibited from remaining at; entering or attempting to enter or approaching premise where the aggrieved or named person reside at Hervey Bay and also an address of 48B Matilda Street, Huntingdale Perth where she also resides;

4. (d)
   That he be prohibited from approaching and having any contact with the aggrieved and named person;

5. (e)
   To prohibit the respondents presence at or in a place where any named person attends including school or workplace; and

6. (f)
   To prohibit him from trying to locate them or asking someone else to locate the aggrieved and named persons.”^[18]

25. [25]
    Then and after noting some provisions of the DFVPA, and that the onus of proof lay on the applicant to satisfy the court, on the balance of probabilities, that an order should be made, the Magistrate noted the course of events related to the hearing conducted on 11 January 2016, as follows;

‘[11] On the morning of the hearing, the aggrieved did not appear.  The respondent did appear along with [his lawyers]. 

[12] It was noted by myself that a Statutory Declaration from the aggrieved dated 11 December 2015 had been placed upon the file.

[13] Briefly the contents of the declaration set out the reasons why she requires a Protection Order, but also indicated that if her ex-husband is attending, she does not wish to attend.  The final part of that declaration sets out her health issues and a request that in her absence, the Court make the DV Order stay in place, final order. 

[14] It was also noted that as a result of that declaration, an officer of the registry, at my instructions, sent an e-mail to the aggrieved on 14 December 2015.  Amongst other things the aggrieved was advised that her personal appearance was required as the application was listed for hearing. 

[15] After refusing the aggrieveds written application for an adjournment, I advised Mr Andrew on behalf of the respondent that I intended to accept the application and the attachments thereto as her evidence supporting the application (see LKY -v- BSL [2015] QDC 337).

[16] After some discussion between myself and Mr Andrew, he advised the Court that the respondent intended to respond to the application by giving sworn evidence on his own behalf and that he would not be calling any other witnesses. 

[17] At the conclusion of the respondent’s evidence, Mr Andrew made his final submissions and I reserved my decision.”

26. [26]
    Following that, the Magistrate summarised aspects of the materials before him under the headings; “Evidence of the Aggrieved and Evidence of the Respondent”. And then the following findings were made under the respective headings:

“CREDIBILITY OF AGRIEVED’S APPLICATION

[37]  There is little I can say in relation to the content of the application as she has failed to appear at the hearing, so perhaps the only way that I can assess whether she is being truthful is to take into account her actions, since filing her application.

[38] There are a number of concerning issues that I should take into account.  Firstly the fact that she filed her application in this Court and not in Western Australia.  When I first saw the application on the day it was filed I was somewhat bewildered why it was being filed in this jurisdiction. 

[39] Secondly, despite being advised that the hearing was to proceed on 11 January 2016 she gave two different reasons why she was not going to appear.  Firstly in an affidavit she stated that if the respondent was going to appear at the hearing, she would not be attending.  Secondly, the reason she gave for not attending on the court date, was that she had to travel to Brisbane to collect her daughter from the airport. 

[40] It appears to me the reason why she had lodged the application in this jurisdiction is to cause as much inconvenience to the respondent that she possibly could. 

[41] When one takes into account her rather offensive posts concerning the respondent in 2013 and 2014 (see part of exhibit 1) and her conduct since that time, her actions are such that it would be difficult to believe she is a person in fear of the respondent. 

[42] The postings requesting financial assistance are of grave concern to me and it is my view that perhaps there should be a police investigation to establish whether an offence of fraud or attempted fraud has been committed by her.

CREDIBILITY OF RESPONDENT

[43] As previously indicated the respondent elected to give sworn evidence.  I observed him when he gave evidence and whilst I accept he was not challenged by cross-examination, he appeared to give his evidence in a fourth right manner.  He refuted all of the allegations contained in the aggrieved’s application.  He however conceded that he had had a telephone conversation with the aggrieved’s father.  Such conduct had not been instigated by himself.  He also had telephone contact with the son-in-law of the aggrieved but that contact was for the purpose of suggested employment. 

[44] Finally he indicated that whilst he had no personal contact with the aggrieved, he did indicate that he had attempted to locate the aggrieved so that she could be served with documents from the Family Law Court in Perth. 

[45] Having now had the opportunity of reading the transcript, I have no hesitation in accepting the whole of his evidence as truthful and a correct version of events. 

[46] Where there are differences between his evidence and the evidence contained within her application, I rejected the aggrieved’s version of events and accept the evidence given by the respondent.

FINDINGS

[47]  Having accepted the evidence of the respondent, I am now in a position to make the following findings: -

1. (1)
   An Interim Violence Restraining Order was made against the respondent at Armadale Magistrates Court on 28 July 2014;
2. (2)
   As a result of that Interim Order, both parties entered into a Minute of Undertaking.  That undertaking was for a period of twelve (12) months and was made without an admission of liability;
3. (3)
   That since that undertaking was entered into by the parties, the respondent has had no personal contact with the aggrieved although as previously indicated there has been contact with her father and her son-in-law, the contents of which could not be classed as an associated act of Domestic Violence;
4. (4)
   The fact that it was necessary for the respondent to try and establish the whereabouts of the aggrieved so she could be served with Family Court documents are not acts of Domestic Violence;
5. (5)
   The allegations relating to the respondent having possession of unlicensed firearms is a complete fabrication. 

OUTCOME OF APPLICATION

“[48] Having made those findings, I am satisfied that no acts of Domestic Violence or associated Domestic Violence have been committed by the respondent and the application is dismissed.”

27. [27]
    And then the reasons proceed to deal with the contentions pressed for the respondent in engagement of s 157(2) of the DFVPA, with the following expressed conclusions:

“[55] In my view, the mere fact that I have dismissed the application on a finding that no acts of Domestic Violence have occurred, is not sufficient by itself, to enliven the provisions of Section 157 of the Act.

[56] However when one combines that finding with the following facts, it is my opinion, that the aggrieved’s application is not only frivolous or vexatious but also is malicious and deliberately untrue.

[57] Those facts are as follows:

1. (a)
   The application appears to have been filed as a result of proceedings instigated by the respondent in Western Australia in the Family Law Court;

2. (b)
   The fact that the applications was filed in this jurisdiction and not in Western Australia.  The aggrieved would have no doubt been fully aware that the respondent would incur quite substantial costs in having to defend the proceedings in Harvey Bay;

3. (c)
   That despite being informed by the Registry of this Court that it was necessary to appear personally at the hearing she made the decision to not attend;

4. (d)
   Since reserving my decision on 11 January 2016, the aggrieved has continued to email the Registry regarding the proceedings.  One of those emails is dated 03 March 2016 in which she advises that she wishes to withdraw her application because she cannot afford to pay ex-husband (PRT) courts fees or any other costs he is trying to pin on me; and

5. (e)
   My views in relation to the conduct of the aggrieved in posting for financial assistance in the electronic media.  Those postings to me are a deliberate attempt to get money from unsuspecting members of the community under false pretences.  For one to be able to act in that way, throws a black cloud over her integrity and honesty.”

The Magistrate then noted that as he had directed, prior to reserving his decision on 11 January 2017, an itemised list of costs had been provided by the respondent, which he had compared to the schedule of costs set out in Schedule 1 to the Domestic and Family Violence Protection Rules 2014 and then made the order that the applicant pay the respondent’s costs in the sum of $9,223.30. In doing so, it may be noted that he correctly observed that dismissal of an application on a finding that no acts of domestic violence had occurred “is not sufficient by itself to enliven the provisions of section 157 of the Act.”^[19]

Discussion

28. [28]
    At the outset, it should be noted that the effect of the decision in LKL v BSL^[20]is not to oblige the hearing of an application for a protection order, whenever there is written material in or accompanying the application.  Rather, s 38(3) of the DFVPA expressly provides for the dismissal of an application without determining it, in certain circumstances. In LKL v BSL, the identified error of law was as to a Magistrate ruling, in circumstances where the applicant was before the Court but had not taken the opportunity to file any further material in accordance with directions of the Court but, rather, expressly sought to rely on the written material in her application, “that there was no material before the court”.  This conclusion was reached in the context of noting the provisions of sections 145 (1)(b) and (3) of the DFVPA.  But, it should be noted, in the further context of also observing:

“[10] There is no doubt that if a Court is hearing and determining the application for a protection order, the Court must receive material which provides a proper basis for satisfaction of the matters required by the legislation and that the Court may do so only after a hearing which complies with the principles of procedural fairness.

[11]  The legislation makes it clear that formal rules of evidence do not apply but there still must be evidence in the sense of there being some material put before the Court which provides a rational basis for the determination and it must be put before the Court in a way which gives the opposite party the opportunity to challenge that evidence and put the opposite party’s case in relation to the matter…..”

29. [29]
    Having regard to such fundamental propositions, there are obvious concerns as to the basis of all of the Magistrates findings here and particularly, those which depend only upon unchallenged evidence put before the Court by the respondent and without any notice to the applicant or opportunity for her to respond. In such circumstances, little weight is to be given to the Magistrate’s finding as to the apparent credibility of the respondent’s evidence and preference for that evidence when in conflict with the assertions of the applicant. And it is a concern that the determination made here so heavily depended on the evidence that came so subjectively from the respondent. This is particularly so in respect of the findings that were sought and made by the Magistrate as to the motivation of the applicant in bringing the application. It must be kept in mind that whilst the finding as to a circumstance that would engage section 157 (2) is to be made on the balance of probabilities, consideration of a finding of malice or deliberate untruth particularly engages the principles discussed in Briginshaw v Briginshaw.^[21]  And there is nothing in the Magistrates reasons which indicates that these principles were recognised and applied.

30. [30]
    Moreover and whilst it should not be concluded that it is or would be, impossible or impermissible for a conclusion to be reached that s 157(2) is engaged, in the absence of an applicant for a protection order, it might be expected that the necessary findings would need to be based on much more objectively or categorically established foundation than was the case here.

31. [31]
    Despite the absence of an express provision like s 39(2)(a) in s 38 of the DFVPA, it should not be discerned that the statutory intent is to preclude a determination of an application for a protection order in the absence of the applicant:

1. (a)
   First it should be noted that s 38(3) provides for the exercise of discretion to dismiss such an application without deciding it, only in the stipulated circumstances and what is otherwise implicitly contemplated is the prospect of a hearing and determination, where appropriate, in the absence of the applicant and where some other person appears to pursue the application;

2. (b)
   Secondly, s 38 is, by subsection (1), expressed to apply “if a respondent appears before the Court that is to hear and decide an application for a protection order” and subsection (2)(a) expressly allows for a discretionary choice to “hear and decide the application”;

3. (c)
   Thirdly and with the exception of s 38(2)(c), the powers provided by s 38 are expressed permissively rather than in more directory terms; and

4. (d)
   Fourthly, it would not appear to be consistent with the evident purpose of s 157(2) in balancing the respective interests of the parties to such an application, to deny a respondent the opportunity to engage that sub-section, simply because of the absence of an applicant. Conceivably that could allow frustration of the purpose of s 157(2) by such a simple expediency and notwithstanding the incurrence of some substantial cost on the part of a respondent. The simplest conceivable example might be in circumstances of a vexatious application, such as might be the product of a repeated attempt to engage an application which had already been effectively determined adversely to an applicant. In such circumstances, it may hardly be expected that there must be another hearing and determination of the application on the merits, before s 157(2) could be engaged, let alone that the engagement of the sub-section could be defeated by the failure of the applicant to pursue it at the appointed time.^[22]

32. [32]
    However, a cautious approach should be taken to any determination that the power provided in s 157(2) should be applied and particularly, where such determination is sought in the absence of the party against whom the order is sought and when there is no contradictor. A party seeking the exercise of such power should expect to have to justify the conclusion as a clear one and from an objective point of view, rather than as a subjective and potentially contentious point of view.

33. [33]
    In any event and without attempting to engage any of the explanations now proffered by the applicant for various aspects of the material presented to the Magistrate by the respondent, it must be concluded that some specific errors appear on the face of the Magistrate’s reasons:

1. (a)
   It should not have been regarded as “somewhat bewildering”, either in the first instance or upon the consideration of the available material, that the applicant had filed her application in a jurisdiction in which she had a place of residence and in which she alleged that acts of the respondent had occurred, such as to amount to domestic violence;

2. (b)
   The finding in paragraph [39] of the Magistrate’s reasons,^[23]not only appears inconsistent with his earlier notation as to the contents of the statutory declaration filed in December 2015,^[24]but also appears to lack foundation.  In the statutory declaration, the applicant had not expressly stated that she would not attend the hearing but only that:

“If my ex-husband is attending I do not wish to attend”.

However that document did include a further request:

“So I am asking the court if in my absence please make the DVO order”.

The reference to the “second reason” appears to be an explanation provided in a request by the applicant for police assistance and contained in her letter dated 4 January 2016, and which became Exhibit 2 in the hearing before the Magistrate, and has some further significance to be discussed below.  For present purposes, it sufficies to note that these considerations, particularly without the opportunity of explanation or elaboration by the applicant, do not appear to provide a sufficient basis for a conclusion that she had provided “different reasons for not attending the hearing”, as opposed to more than one such reason;^[25]and

3. (c)
   The finding that the “allegations relating to the respondent having possession of unlicensed firearms is a complete fabrication”, is without apparent foundation. What the applicant had asserted in her application under the pro-forma heading in the form: “Grounds for a protection order”, was, in part:

“Unsure of whereabouts of ex-husband, as he has access to illegal firearms, has made past threats to harm.”

And in a later section and under the further pro-forma heading: “Weapons” and the specific pro-forma questions seeking such information, she wrote:

“types of weapons are firearms unknown, held at his sister’s house at Burnett Heads Qld” and

“Threatened to harm himself during argument in past (with firearm). Threatened to harm me and any future partner (said he would kill).

In the Statutory Declaration filed on 14 December 2015, she had recorded that the respondent:

“… has access to his own unlicensed firearms apparently located at his nephew’s house in Burnett Heads”.

Although it included some further elaboration, in his evidence to the Magistrate, the Respondent confirmed his past possession of unlicensed firearms in Western Australia, which he described had been returned after he was charged and apparently on the basis that they would be kept in the possession of his nephew at Burnett Heads (who was described as having been licensed and having them in secure registered storage and as a “paraplegic national champion at pistol shooting”). What then followed were the Respondent’s assurances that:

1. (i)
   He did not have access to the weapons, as he “would never jeopardise [his] nephew’s shooting career”; and

2. (ii)
   Although denying he had ever threatened the applicant or anyone else with the weapons or to harm himself with them, he “may have said stupid things like I may as well shoot myself, put myself out of my misery, but that was never earnestly meant but a throw-away line”^[26]

34. [34]
    Moreover, there is then apparent difficulty in the finding in paragraph [40] of the Magistrate’s reasons.^[27]From the application and the applicant’s statutory declaration, it was clear that apart from her allegations of ongoing contact of the respondent with her children and relatives, to keep track of or check up on her, she expressed her concern that he had found out where she was living in Hervey Bay.  Her express concern about this may be seen in the context of some attachments to her application, which were also referred to in the Magistrate’s reasons.  That is, in understanding that consequent to the breakdown in the prior relationship of the parties and ongoing proceedings in the Family Court of Western Australia:^[28]

1. (a)
   an interim restraining order had been made in the Magistrates Court at Armadale, Western Australia, on 28 July 2014, against the respondent and for the protection of the applicant for a stated duration of two years; and

2. (b)
   subsequently, a minute of undertaking was executed by them, respectively on 27 and 29 October 2014, albeit “without an admission of liability”, and  for a period of 12 months.

What may be discerned to be the point of the applicant’s reference to each document is to evidence the restrictions placed upon the respondent in respect of contact with her and in terms of the undertaking given by the respondent, on 29 October 2014:

3. (c)
   restraining him from communicating or attempting to communicate with her except through a legal representative or by service of legal process through a “process server or bailiff or other person”; and

4. (d)
   communicating or attempting to communicate with any of her children or members of her family or work colleagues.

In this context and whilst the evidential foundation for it is not entirely clear, the finding in paragraph [44] of the Magistrate’s reasons that “… he did indicate that he had attempted to locate the aggrieved so that she could be served with documents from the Family Court in Perth”, should have served as a restraint upon the remedy being sought by the respondent.  In fact, what can be observed about the respondent’s evidence is that:

1. (a)
   not only did he seek to explain away his placement of some weapons with a nephew at Burnett Heads, but he also sought to explain away some admitted communication with the applicant’s father;

2. (b)
   he also explained he had a connection to Burnett Heads in that his parents and other family lived there and that he did periodically visit the area; and

3. (c)
   he was neither asked to, nor did he further explain or expand upon, the assertion in his written statement:^[29]

“I have however in the course of the Family Court litigation attempted to make due diligence enquiries for disclosure purposes.  None of this has been unlawful conduct.”

35. [35]
    Further, this context appears to provide some difficulty in understanding the significance of references, as reflected in the Magistrate’s reasons at [41],^[30]to selected allegations of the applicant’s misconduct that predate the order made and/or the undertaking given in Western Australia.

36. [36]
    What must be kept in mind here is that what the respondent pressed the Magistrate to do, despite his initial reluctance to do so,^[31]was to not just dismiss the application in the absence of the appearance of the applicant, but to do so on a basis that would engage s 157(2) of the DFVPA and thereby enable the recovery of costs, as an exception to the usual position established by s 157(1). 

37. [37]
    Accordingly, it was not just a matter of showing that the application was misconceived or lacked legal foundation or that the respondent denied the basis of the application or even that there may be aspects of overreach or exaggeration in the applicant’s expressed concerns. Moreover and whilst past acts of dishonesty on the part of the applicant, if established, may have been relevant to the credibility of her assertions, it need not necessarily follow that her application for the protection order was made without at least a perception of foundation on her part. This is particularly so in the context of the past order and undertaking in respect of the parties. And what appears as lacking here, is any clear and objective indication of this being, at least, a frivolous application.

38. [38]
    The applicant may well have lacked a full understanding of what she would be required to establish pursuant to s 37 of the DFVPA. However her motivation for bringing the application is also not necessarily to be seen, as the respondent’s submissions to this Court contend, as “an improper objective in that she wishes to use these proceedings to achieve unfair forensic advantage in her family law property proceedings.”^[32]In the context of the specific restrictions agreed in the undertaking and the largely unexplained assertion of the respondent at paragraph [15] of Exhibit 2,^[33]it is of some significance to note that the concern expressed by the applicant in her Statutory Declaration, dated 19 October 2015 and included in her application filed on 21 October 2015, in the context of making specific reference to the matters in the Armadale Court, was that the respondent “has continued to contact and harass me by way of electronic means and contacting my children and family members harassing them for information about me and my whereabouts.”

39. [39]
    However and quite apart from this indicia pointing to this not being an appropriate case for an ex-parte determination of the application of s 157(2), it should be determined that the Magistrate was also pressed by the respondent into another error going fundamentally to his exercise of jurisdiction to do so. This occurred in this way. Shortly after the matter was first called on 11 January 2016 and the course proposed for the respondent had been indicated to the Magistrate,^[34]the transcript reveals the following:

“UNIDENTIFIED SPEAKER: I’m sorry.  Can I interject?

BENCH: No.

UNIDENTIFIED SPEAKER: I’m sorry, your Honour.  I didn’t realise which matter this was.  I was out at the court when I heard it called.  There is – [NBE] sent – I do apologise.  [NBE] sent a letter for police representation which we’ve turned down, stating that she wouldn’t be here and the reason why.  She does say that she has a representative who is outside, a Justice of the Peace, to represent her in this matter.

BENCH: Is that who came into the court room?

UNIDENTIFIED SPEAKER: Yes, your Honour.  As soon as you said ---

MR ANDREW: I can deal with ---

UNIDENTIFIED SPEAKER: ---

[NBE]: I jumped up.

MR ANDREW: I can deal with issues about him as well that are quite interesting also, your Honour.

BENCH: Yes.

UNIDENTIFIED SPEAKER: Police had no involvement, your Honour.

BENCH: You wished to tender that letter or show – firstly, show Mr Andrew.

UNIDENTIFIED SPEAKER: I do ---

MR ANDREW: That’s all right.  You’re right.

UNIDENTIFIED SPEAKER: I wasn’t even listening.

MR ANDREW: Well, just give me what you want to give me, rather than all of it.

UNIDENTIFIED SPEAKER: I don’t – as I said, we have no involvement.  Your Honour, did you want me to get that JP?

BENCH: No.

UNIDENTIFIED SPEAKER: Thank you, your Honour.

BENCH: There’s no right for anyone to appear on anyone else’s behalf in this court ---

UNIDENTIFIED SPEAKER: I did explain that, your Honour.

BENCH: --- unless you’re represented – unless you’re a representative, I should say.

UNIDENTIFIED SPEAKER: Yes, your Honour.

MR ANDREW: May I ask when – this is dated the 4^th January.  May I ask my learned friend when this was received by the police?  Do you know?

UNIDENTIFIED SPEAKER: I don’t have it on file.  The response isn’t on the back.

MR ANDREW: We’ve got no objection to that being tendered, your Honour.

BENCH:  OK.  It’ll be admitted and marked Exhibit No. 1.

EXHIBIT #1 ADMITTED AND MARKED

UNIDENTIFIED SPEAKER: I was advised last week, your Honour, by the IOC that we would not be representing her.  I believe he got it last week.

MR ANDREW: Only the letter should be tendered, your Honour.

BENCH: Yes.  I don’t want any of the other material.

MR ANDREW: Yeah.

BENCH: So it’s a 2-page letter?

MR ANDREW: That seems to be the right, your Honour.

BENCH: There’s other affidavit material that I’ll return.  I’ll consider that when I consider your material, Mr Andrew.

MR ANDREW: Thank you, your Honour.  Now, so the registration issue I’ve dealt with, your Honour.  Now the JP, Mr Gibson, you would have seen within the material, there’s an affidavit, I think.

BENCH: I don’t look at the rest of the material.

MR ANDREW: I can tell you that there is.  He is the JP who witnessed [NBE]’s statutory declaration.  There is, as your Honour would know, a JP’s code of conduct.  I can provide you with a copy of that as well.

BENCH: I’m well and truly aware.

MR ANDREW: I thought you might be.  He at least breaches, in my respectful submission, clauses 12 and 15 of that document.  Replete within his affidavit are conclusions, opinions, assertions, so forth.  So if he were to come here as some sort of objective person who might seek leave to appear on her behalf, that, of course, will be objected to, but I don’t think we need to go or venture into that realm. …”^[35]

40. [40]
    That is where the matter was left and the obvious problem is in the application of s 147(1) of the DFVPA and nowhere does it appear that this provision was specifically brought to the attention of the Magistrate.  Rather, the Magistrate was, once again, pressed with an argument in the absence of any contradictor and which was far from clear as having any legitimate basis.  It must be concluded that the Magistrate erred in so pre-emptively dismissing the entitlement of Mr Gibson to appear for the applicant and particularly because in her letter to the police prosecutor,^[36]she had expressly authorised him in writing to so appear for her, in the following terms:

“I would greatly appreciate your help representing me in court on this day 11^th January 9.30 am.  My friend Mr Tom Gibson has also written his supporting affidavit and will be there to speak on my behalf if needed.”

41. [41]
    Although the Magistrate would not have been bound to allow Mr Gibson to represent the applicant, it is clear that the issue was never appropriately considered. And it can be observed that it was from far from clear as to what was being suggested on behalf of the respondent to be any inappropriate or disentitling conduct on his part. Such was unlikely to be found in his acting as a JP to witness the applicant’s declaration of her application and it was not made clear what significance lay in any affidavit of his, which was contended to contain inadmissible and argumentative material and which, as the Magistrate noted, had not been and would not be considered by him. And even without the express authorisation, it may be concluded that it was an error having regard to s 25(2) of the DFVPA, for the Magistrate to have not clarified the basis upon which Mr Gibson had sought to be involved in the proceedings. Once again, this issue was inappropriately decided on a one-sided basis.

42. [42]
    There is a further allied point. It would appear that the reference in the Magistrate’s reasons, at [15],^[37]to his refusal of a written application for an adjournment, can only be a reference to Exhibit 2.^[38]However there is nothing in that letter which expressly seeks an adjournment. Rather it is entirely concerned with seeking the assistance of the police prosecutor and indicating the authorisation of Mr Gibson to pursue her application.  It is not to the point that there may have been practical difficulty in doing that successfully, without her presence to support her written assertions, by evidence. Rather there is once again an indication of how the potential entitlement of Mr Gibson to be present and at least to act as some contradictor of the respondent and particularly in his application for costs, was not given any appropriate consideration:

“BENCH: So it’s taken her from the 17^th of November 2015 until at least the 4^th of January 2016 to make a request to the prosecution to assist her in today’s hearing date. She’s had ample time to make other arrangement and the arrangements that she tries to make today is for a person to appear on her behalf. It was a person whose name Mr Andrew will inform me.

MR ANDREW: Mr Gibson, your Honour.

BENCH: Mr Gibson. I believe Mr Gibson did attend to the back of the courtroom but was asked to leave because of the closed court. I wasn’t aware, at that time, that he was attempting to appear but, even if I had been, he wouldn’t be given leave or a right to appear on behalf of [NBE] in the close court situation. Even without knowing what Mr Andrew indicated to me about he being the JP who signed - - -

MR ANDREW: He witnessed her statutory declaration - - -

BENCH: Yes, that’s right. Yes.

MR ANDREW: - - - and also provided an affidavit of his own, your Honour. I’m sorry to interrupt.

BENCH: No, you’re fine”^[39]

43. [43]
    It is unnecessary to discuss the Magistrate’s references to subsequent communications of the applicant to the court. As is often a problem with self-represented litigants, such communications were irregular and strictly these should not have been entertained as being relevant to the Magistrates decision. Further and to the extent that there is reflection of the same underlying issues as expressed by the applicant for not wishing to further pursue her application for a protection order, it is also unnecessary to further consider or examine her claim that her position is due to her inability to further deal with the matter as a self-represented litigant, including due to mental and physical health issues. It may also be discerned that she had and has been affected by the result of the proceedings on 11 January 2016.

44. [44]
    It was one thing to accept the applicant’s written materials, so as to enable the hearing and determination sought by the respondent, although it is strictly unnecessary to do so for the purpose of dismissing an application if s 38(3) is engaged. However it is quite another, to give little or no consideration to the weight to be attached to that material and to allow it to be swept aside by the effectively contentious evidence of the respondent, in determining the additional and separate questions arising under a 157(2). And particularly, as here, to be influenced in such determination, by significant misunderstanding as to the applicants preparedness to pursue her application and have her representative do so for her.

Conclusions

45. [45]
    It should therefore be concluded that the proceedings resulting in the findings and consequent orders made by the Magistrate involved substantial errors. Accordingly and in such circumstances, the applicant should have the extension of time for filing her notice of appeal and it will be necessary to set aside the order made pursuant to s 157(2) and upon the impugned findings.

46. [46]
    Had the only concern or identified error been as to that relating to the fundamental problem in simply excluding Mr Gibson from the hearing on 11 January 2016, it may well have been appropriate to consider the exercise of the power to set aside the decision and remit the matter to the Magistrates Court, pursuant to s 169(1)(d) of the DFVPA. However and from what has been set out above, it is clear that the respondent sought to take advantage of the absence of the applicant, so that he could seek orders allowing his costs, on an ex-parte basis and in circumstances where his entitlement to do so was not appropriately and clearly established. For the reasons that have been given, there was an evident lack of proper foundation for the engagement of s 157(2) and therefore, and in circumstances where matters may have otherwise moved on and the applicant does not seek a further hearing to pursue further her application for a protection order, the more appropriate order pursuant to s 169(1)(b), is to allow the appeal and to vary the decision of the Magistrate made on 5 April 2016, so as to delete the order that the aggrieved pay the respondent’s costs.

47. [47]
    Accordingly and so that the outcome is that the order, as made on 5 April 2016, will simply remain as one whereby the application for the protection order filed on 21 October 2015, is dismissed, the orders of this Court are:

1. The time for the filing of the Notice of Appeal is extended to 10 May 2016.

2. The appeal is allowed and it is ordered that the decision of the Magistrates Court at Hervey Bay on 5 April 2016, is varied so as to delete the order that the applicant pay the respondent’s costs of defending the application.