OSE v HAN[2020] QDC 309

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 20 July 2018 the appellant filed an application for a Protection Order under the Domestic and Family Violence Protection Act 2012 (“DFVP Act”) against the respondent, naming her as the aggrieved and also seeking an order that the three children of the marriage be included as named persons on the Order. It directly alleged that an act of domestic violence had been occasioned to one of the children, and less directly alleged that there had been domestic violence directed towards her. A Temporary Protection Order was subsequently made. Affidavits were filed in the proceeding, as is the usual course. The appellant’s affidavits more directly alleged acts of domestic violence having been occasioned towards the appellant. There were also proceedings under the Family Law Act, which were commenced by the respondent in the Federal Circuit Court, and which were effectively running at the same time as the present application.
2. [2]
   The present application was contested and was heard on 2 April 2019, 25 June 2019 and 26 November 2019, with cross-examination of the appellant on each of those dates.  On 25 June 2019, counsel for the respondent foreshadowed that, at the close of the appellant’s evidence, he would “make a no case submission”.  Written submissions were provided by the respondent, and oral submissions were made by both Counsel on the no case submissions on 26 November 2019. 
3. [3]
   The appellant’s counsel in the Court below submitted that a “no case submission” was an incorrect procedure as “it is a civil application and the application should be a summary dismissal application.” 
4. [4]
   After a further mention of the matter on 13 December 2019, the Magistrate delivered judgment on 12 February 2020.  The Order was that “protection order not made”.  The appellant appeals that order. 

Grounds of appeal 

5. [5]
   The grounds of appeal are:

1. The learned Magistrate erred in law in deciding the application on its merits, when he was considering an application made by the respondent that there was no case to answer;
2. The learned Magistrate erred in law in deciding the application on its merits, when he was considering an application made by the respondent that the application was frivolous or vexatious;
3. The learned Magistrate erred in law in deciding the application on its merits, when he was considering an application made by the respondent that the learned Magistrate was effectively bound to conclude that the application should be dismissed having regard to the orders and reasons of the Federal Circuit Court of Australia made on 12 June 2019;
4. The learned Magistrate erred in law in failing to afford procedural fairness to the appellant in deciding the application on its merits, when he was considering an application made by the respondent that there was no case to answer, or that the application was frivolous or vexatious, or that the learned Magistrate was effectively bound to conclude that the application should be dismissed, having regard to the orders and reasons of the Federal Circuit Court of Australia made on 12 June 2019, and did not give the appellant any notice he would decide the application on its merits;
5. The learned Magistrate erred in law in considering the application made by the respondent that there was no case to answer:

a. In circumstances where the respondent had adduced evidence at the hearing;

b. In circumstances where the respondent had not been put to his election not to call evidence;

3. Having regard to the provisions of the Domestic and Family Violence Protection Act 2012, including ss 4, 8, 10, 11, 12, 37, 78 and 145 thereof;

6. The learned Magistrate erred in law in basing his decision on the evidence of the respondent (at Reasons para [31], [45], [47], [56], [57], [58], [59], [62] [64], [66], [67], [70] and [76]) when:

a. the evidence of the respondent had not been put before him;

b. the respondent had not been made available for cross-examination;

7. The learned Magistrate erred in law in failing to give adequate reasons for any findings of fact made or conclusions reached by him.

6. [6]
   The appellant seeks the following relief:

1. (1)
   Appeal allowed.

2. (2)
   The decision of the Magistrate’s Court be set aside.

3. (3)
   That the respondent pay the appellant’s costs of and incidental to the appeal.

Nature of the Appeal

7. [7]
   A person who is aggrieved by a decision to refuse to make a domestic violence order may appeal against the decision.^[1] The making of a domestic violence order includes the making of a Protection Order.^[2]
8. [8]
   This appeal is to be decided on the evidence in proceedings before the Court below, unless this court makes an order to the contrary.^[3] There was no application in this appeal for an order to the contrary, and accordingly no such order was made.
9. [9]
   Therefore, this appeal is in the nature of an appeal by rehearing on the record. In an appeal of that nature it is necessary for me to consider the evidence and make up my own mind about the effect of it, particularly where any inferences are to be drawn from primary facts.^[4] I must give recognition to the fact that the Magistrate had the advantage of seeing and hearing the witnesses in the evaluation of credit and in assessing the “feeling” of the case.^[5] The onus is held by the appellant to show that there is some error in the decision under appeal.^[6]
10. [10]
    In the event that error is demonstrated, I must consider the whole of the evidence to determine whether the orders made are nonetheless justified, if I can. I must also consider the appropriate disposition of the matter given the powers in s 169 of the DFVP Act. Under s 169(2), the decision of this Court is final and conclusive.

The reasons below

11. [11]
    The Magistrate delivered written reasons.^[7]  After noting that he had been invited to find that the respondent had “no case to answer”,^[8] he observed:

“Counsel for the Respondent did not address the Court in relation to application of that kind.  Written submissions (paragraphs 60 – 62) have been considered.  Counsel for Aggrieved submitted that a “no case” submission was not correct as “it is a civil application and the application should be a summary dismissal application”.  In light of the provisions of s 142 and s 143 of the DV, the course undertaken was to consider the PO against the backdrop of s 37 of the DV Act.”

12. [12]
    The reference to “(paragraphs 60 – 62)” is a reference to part of the respondent’s outline below referring to the principles for determination of a no case submission in criminal law, and which outline also submitted:

“… the evidence and the matters that arose out of the Federal Circuit Court discrete hearing, was not capable of supporting a finding that a Protection Order was necessary for the protection of the appellant and/her children.”^[9]

13. [13]
    His Honour made observations concerning several principles to be applied, including an assessment on the balance of probabilities as informed by Briginshaw principles.^[10]
14. [14]
    His Honour expressly indicated he considered an affidavit of the respondent filed in the proceedings.^[11] 
15. [15]
    His Honour assessed what he considered to be the available evidence against the limbs of s 37 of the DFVP Act.
16. [16]
    He accepted there was evidence to establish the parties were in a “spousal relationship” and thereby were in a relevant relationship.^[12] 
17. [17]
    In considering the second limb of s 37 – proof of an act of domestic violence – the Magistrate considered that the appellant’s affidavits were “devoid of corroboration”.^[13]  Although his Honour considered the affidavit of the appellant’s mother, he said he was bound to consider the weight of that evidence, and determined it was “not of great weight in assisting me to determine the issues”.^[14] 
18. [18]
    His Honour considered the appellant’s various allegations and, with one exception,^[15] he considered the evidence was variously not capable or not sufficient to prove the allegations on the balance of probabilities. In some instances it is clear that his Honour considered there was no evidence capable of proving an act of domestic violence.^[16]
19. [19]
    In most instances however his Honour has considered evidence with conflicted with that of the appellant, including that provided by the respondent in his affidavit, in determining whether the allegations are “established” or “made out”.^[17]  Having accepted that one of the allegations could be accepted, his Honour went on to consider whether or not that act could amount to “domestic violence” as defined at s 8(1) of the DFVP Act.  In light of features of the appellant’s evidence he considered it did not satisfy that definition.^[18]
20. [20]
    Accordingly, it was unnecessary for him to consider the third limb of s 37 of the DFVP Act, but his Honour noted that in light of the “property and parenting proceedings” and the order made in the Federal Circuit Court, it was “unlikely” he would have found it necessary or desirable to make a Protection Order.^[19]

The parties’ submissions

21. [21]
    The appellant submits that there are three principal types of error which inform the grounds of appeal, except the last ground which was not advanced in oral submissions, but also which was not expressly abandoned.  They are that the Magistrate:

“1. Failed to deal with the no case submission before him;

2. Decided the application on the merits of all of the evidence before him;

3. Decided the proceedings by considering and relying on evidence not before him.”

22. [22]
    The appellant accepted that, notwithstanding the absence of an express power to do so, there was in fact power to hear and consider a no case submission, but contended that could only be done by considering the prosecuting party’s case at its highest rather than assessing the merits of the evidence.  Further, the appellant submitted that usually a no case submission should not be entertained until the respondent has been put to his election, and that was particularly important here where the Magistrate considered affidavit evidence authored by the respondent but which was strictly not before him.  In that latter respect, the appellant referred to a Direction made in the proceedings on 15 August 2018 that no affidavit or statement be filed unless the deponent is available for cross-examination.^[20]
23. [23]
    As to the disposition of the matter should I find relevant error, the appellant submitted that one option was to rehear the whole of the matter, which would require putting the respondent to his election before considering the evidence below.  The precise course to then be taken would be affected by his election and whether he was pressing the no case submission.  Alternatively, if error was found that vitiated the decision, the matter could be remitted to the Magistrates Court for rehearing.  In that event, the appellant submits that an order should be made that it be heard by a different Magistrate.
24. [24]
    The respondent accepts that the Magistrate reached his decision by assessing the merits of the evidence, but submits that given the extent of the material before him, he was entitled to do so even though he had a no case submission before him.  It is submitted that he was entitled to conduct a merits assessment of the evidence because there was “no provision or rule preventing him to do so”,^[21] and because he had the benefit of having before him the findings of the Federal Circuit Court in the discrete issues hearing.
25. [25]
    In the event of relevant error being found, the respondent submits that I should rehear the matter on the extensively adduced evidence and decide the application for no case, as well as the application for the Protection Order.

Some factual matters

26. [26]
    The relevant dates in the proceeding have been set out earlier in this judgment. 
27. [27]
    The respondent tendered the transcript from the discrete issue hearing in the Federal Circuit Court, which was concerned with whether the present respondent represented an unacceptable risk of harm to the children, as well as some reports from that hearing. It was not tendered through a witness but tendered to inform the Court of this material.^[22]  The present respondent testified in the course of that hearing, and so that testimony came before the Magistrate, although in my view it, as with all this material, was the respondent’s evidence rather than the appellant’s even though the appellant’s case was on foot at the time it was tendered. The judgment from that hearing was later placed before the Court by consent. If the Magistrate was entitled to look at the whole of the evidence, he could consider all this material but had to weigh it before relying on it.
28. [28]
    Broadly speaking, the Order of the Federal Circuit Court required the children to live with the appellant, but allowed the respondent certain access to the children.  It was also ordered that the present respondent attend a psychologist to assist him with various issues, including anger management.  He was also ordered to undertake a parenting course, and both parents were ordered to undertake a Post Separation Parenting Program (or similarly styled program), as well as attend mediation.  There was no evidence before the Magistrate as to participation by the respondent with a psychologist or the completion of a parenting course. 
29. [29]
    As is the usual practice in applications of this sort, affidavits had been filed by both the appellant and respondent.  The appellant’s affidavits were read and taken as, in effect, her evidence in chief. 
30. [30]
    The respondent’s affidavit had not been formally read by the time the no case submission was made.  However he had tendered some exhibits, in addition to the transcript that I have referred to and so, in that sense, had gone into evidence. 
31. [31]
    The respondent’s counsel tendered an outline of submissions for the purposes of the no case submission.  It referred in part to an authority dealing with no case submissions in the criminal jurisdiction.^[23] 
32. [32]
    It also submitted that the application for a Protection Order was frivolous or vexatious, but it is unclear on its face if that allegation was made for the purposes of seeking the dismissal of the application or for a costs order^[24] following dismissal.  It was not expressly considered by the Magistrate on either basis. 
33. [33]
    In his oral submissions, counsel for the respondent did not directly suggest that the Magistrate should assess the merits of the evidence in order to reach a conclusion but, by referring to aspects of other witness’s evidence to cast doubt on the veracity of the appellant’s evidence, it may reasonably have been understood that way. 
34. [34]
    The appellant’s counsel’s submissions below were confined to aspects of the appellant’s evidence and those parts of the Federal Circuit Court transcript and judgment which added weight to the appellant’s account.  In other words the submissions were designed to illuminate what the appellant’s case was at its highest, consistent with the test from the criminal jurisdiction. They were made against the background of Counsel indicating on 25 June 2019 that she intended to tender a number of items through the respondent in cross-examination, and an apparent acceptance by the Magistrate “… then you’re – given that he’s filed an affidavit, entitled to cross, if he wishes to be crossed.”^[25]
35. [35]
    It is common ground between the parties on the appeal that the Magistrate refused the substantive application after assessing the merits of all of the evidence, as well as the respondent’s filed but not read affidavit.  I agree with that conclusion. One needs only to read the judgment to see that his Honour undertook a nuanced assessment of all of the material he considered to reach the conclusion that he did.  That is starkly illustrated by the matters summarised in paragraphs 17 and 19 herein.
36. [36]
    In my view, the Magistrate must have understood the respondent’s counsel’s submissions as inviting a merit assessment of the evidence.  It is, in my view, the only reasonable explanation for saying that the respondent’s Counsel did not address the court in relation to a no case submission.^[26]  I do not consider there was any fault on the part of the appellant’s Counsel below in failing to detect that the Magistrate may misinterpret the respondent’s submissions.  In my view the oral submissions were not so obviously of a nature to suggest that a merits assessment should be conducted so as to put her on notice.  In those circumstances, Counsel was entitled to address on the basis of the actual application that had been made. Whilst she took issue with what the application should be called, she did not suggest that the approach to determination of the application differed from that which was suggested by the respondent; that is, she was required to demonstrate that there was some evidence to support each of the elements of s 37 of the DFVP Act. 
37. [37]
    Unfortunately his Honour did not give any indication to the appellant’s counsel he understood he was being asked to undertake an assessment on the merits.

Is there a power to find no case to answer?

38. [38]
    A preliminary issue arises as to whether the Magistrate had power to find there was no case to answer. Despite the best endeavours of both Counsel and of myself, we have been unable to locate any authority directly dealing with this issue.
39. [39]
    The proceedings are, by their very nature, more closely aligned to criminal proceedings than civil proceedings.^[27] However the UCPR’s do not apply.^[28] The Domestic and Family Violence Protection Rules do apply but are silent as to any express power to find no case to answer or to exercise any other form of summary dismissal or summary termination of the application.
40. [40]
    The proceedings are heard in the Magistrates Court, which is itself created by statute.^[29] It is therefore imbued with all express powers conferred on it by statute, as well as the power to do anything necessary for the exercise of those express powers.^[30]
41. [41]
    In these proceedings the Court was specifically empowered to “hear and decide the application” for the Protection Order.^[31] The Act neither prescribes nor proscribes the methods by which the Court can “hear and decide the application”. The absence of conferral of an expressed power to determine a proceeding by a no case submissions does not necessarily mean that the use of that procedure is unavailable.^[32] Although the use of the procedure may be inappropriate for other reasons.^[33]
42. [42]
    The power to find no case to answer in the criminal jurisdiction is not doubted, and is of long standing; if there is any evidence to support the charge in question, even if it is tenuous or inherently weak or vague, the no case submission must fail.^[34] The question is not whether the tribunal of fact would be likely to convict, but whether there is any evidence on which the tribunal of fact could convict.
43. [43]
    The existence of a power to find a no case in the civil jurisdiction is less well recognised, but some cases show that it does exist,^[35] including in civil hearings which lend themselves to concepts from the criminal jurisdiction, such as civil penalty proceedings^[36] and civil contempt proceedings.^[37] As will be shown, the test for the threshold of evidence required to defeat an application of this nature is the same in each jurisdiction, but the time at which the application should be considered differs.
44. [44]
    A power will be implied only if it is “necessary” for the effective exercise of the jurisdiction which is expressly conferred, and is confined to that which is actually necessary.^[38]  The term “necessary” does not mean essential, but rather is to be subjected to the “touchstone of reasonableness”.^[39] 
45. [45]
    It was held in Grassby v The Queen that a Magistrate conducting a committal did not have an implied power to stay the proceedings.  The same finding was made by the Queensland Court of Appeal in Higgins v Comans.^[40]  However in each case, the determination was based on the restrictive nature of the respective legislative provisions which granted the power to decide a committal, or not.  In their own terms, each required that the Magistrate consider all of the evidence and then dismiss the charges if, in effect, there was insufficient evidence to justify the matter being determined by a jury, or otherwise to commit to the higher Court. There were no other options provided for in the legislation. The broad power to “hear and decide the application” expressly conferred in the present matter stands in contrast to those more restrictive provisions, and permits the existence of an implied power to summarily dismiss the application or otherwise summarily terminate the application, in appropriate circumstances.
46. [46]
    In my view, a Court hearing an application for a Protection Order under the DFVP Act has an implied power to summarily dismiss or otherwise terminate the proceedings determining the application on the basis of a lack of evidence capable of supporting the making of the order sought, where that is appropriate. It does not matter whether the rubric under which the application is brought is an application for a finding of no case to answer, a determination of summary dismissal, a finding of summary termination, or some other styled application provided it is brought on the basis that there is a lack of evidence capable of supporting the order sought. For ease of reference, I will refer to it as a power to summarily dismiss the application, which then distinguishes it from the power in the criminal jurisdiction to find there is no case to answer, given there are some differences between the two.
47. [47]
    In my view, an implied power to summarily dismiss sits comfortably with the authorities determining when powers will be implied to an inferior Court, and it is necessary, when assessed against the touchstone of reasonableness, to facilitate the efficient disposition of the Court’s business and to otherwise promote confidence in the administration of justice when exercised in appropriate circumstances. The power is however not unrestrained, and the occasion to exercise it will be relatively infrequent.
48. [48]
    Before turning to when that occasion arises, I turn to the issue of how my conclusions sit with an earlier decision of this Court. In HDI v HJQ^[41] Muir DCJ considered that the wording of section 157(2) of the DFVP Act recognised that there was a power in the Court, either express or implied, to dismiss applications which were “malicious, deliberately false, frivolous or vexatious”.^[42] Given the existence of that power, her Honour was not prepared to find that the power to stay proceedings was necessary for the exercise of jurisdiction.^[43]
49. [49]
    In my view, the two decisions sit comfortably with each other. Muir DCJ was considering whether an implied power existed to stay proceedings which were, in that case, vexatious or frivolous. Her Honour would not imply a power to stay given sufficient powers otherwise existed. That is, that specific power was not needed, and hence was not necessary. This appeal raises the issue of an implied power to summarily dismiss an application based on a lack of evidence. Such an application might be framed in terms of a summary dismissal of proceedings which are vexatious or frivolous, but the concepts are not necessarily the same and that is not the basis on which the application was framed below. In my view, my conclusion as to the existence of the power to summarily dismiss is consistent with her Honour’s findings of a power of dismissal on particular grounds.
50. [50]
    The issue is raised as to what an applicant for summary dismissal of an application for a Protection Order under the DFVP Act must demonstrate in order to succeed. The level of satisfaction required in the criminal jurisdiction has been outlined at paragraph 42 herein, and there are statements to suggest that the same standard is to be applied in the civil jurisdiction, at least in respect of civil penalty proceedings.^[44]
51. [51]
    In 1964, Barwick CJ spoke of the need for “exceptional caution in exercising the power” and that the prosecuting party should not be denied unless the lack of a cause of action is “clearly demonstrated”.^[45]  That need for caution and clear demonstration of the appropriateness of such an order has not changed in the years since.
52. [52]
    In my view, it is appropriate to apply the criminal threshold to applications of this nature. Such an approach gives effect to the main objects^[46] of and the principles for administering^[47] the DFVP Act, and sits comfortably with section 4(2)(f) of the Act. The application of those principles in light of the objects of the Act, whilst obviously allowing for summary termination of an application in appropriate cases, reinforces that such an application should only be granted in the clearest of cases and with the exercise of exceptional caution. That is effected in part by requiring that an application not be summarily dismissed where there is any evidence, taken at its highest, which is capable of supporting the granting of the application.
53. [53]
    The fact that a power will be implied only if it is “necessary” (as that term is understood) to give effect to an expressly conferred power draws attention to the need to carefully assess the circumstances in which the power can or should be exercised. 
54. [54]
    Further, the appropriateness of considering a no case submission in a trial by jury is one thing because of the division of duties between Judge and jury, but where the one person is both the tribunal of fact and of law, there are considerations that add to the circumspection that should be employed before considering the application. 
55. [55]
    In the criminal jurisdiction it is clear that a no case submission can properly be considered at the end of the prosecution case and before the defendant is put to his or her election.^[48] That the application is made at that time both reflects and gives effect to the existence of the right to silence, but that right does not generally apply in civil proceedings.^[49] 
56. [56]
    The Full Court in Cumming v Cumming; ex parte Cumming^[50] was hearing an appeal from a decision of a Magistrate on an application under the Maintenance Act 1949.  The primary hearing was therefore in the civil jurisdiction.  Although there was some ambiguity in the ruling, it was treated on appeal as a finding of no evidence on which a determination favourable to the applicant could be made.  On appeal Philp J, Mansfield SPJ and Townley J agreeing, said:

“… I think a Magistrate should be very slow to determine a question of sufficiency of evidence upon the application of counsel for the defendant at the end of the complainant’s case.

There is no law that obliges him to make a determination at that stage. Except in the very clearest of cases it is wiser for him to hear the evidence (if any) adduced by the defendant before making his final determination. Of course, if counsel for the defendant intimates that he will call no evidence the question of sufficiency of evidence calls for immediate determination.” ^[51]

57. [57]
    This is consistent with the approach generally recommended, but not always applied, in the Federal Court^[52] and the Supreme Court. The pragmatic reason for such an approach was expressed by Dutney J in Brian Geaney Pty Ltd v Close Constructions Pty Ltd & Anor as:

“It seems to me that the purpose for requiring an election in a case such as this is to avoid the prospect of, in effect, giving an advisory opinion to the party making the submission in a case which really turns on its facts so that the party gets two bites at the cherry, that is, to seek to submit that the plaintiff has failed to make out a case, and if it fails in that after examining all of the evidence to then lead further evidence to support that same submission.”

58. [58]
    A further reason for caution in considering a summary dismissal submission in proceedings where an appeal lies from the decision to terminate the proceedings is the risk that the presiding judicial officer may reveal in his or her reasons an attitude towards the evidence which, whether or not sufficient to ground a successful application for recusal, is unhelpful on a rehearing of the matter, if that became necessary. That would result in extra time and expense being incurred in a complete rehearing before another judicial officer. In that respect I gratefully adopt the observations of Porter QC DCJ in Goli v Blue 11 Pty Ltd.^[53]
59. [59]
    In order to give effect to the fact that an application for summary dismissal of the application for a Protection Order can only be granted after exercising exceptional caution and only when the need is clearly demonstrated, and to give effect to the principles for administering the DFVP Act, I consider that the following principles apply:

    1. (a)
       Given the nature of an application for summary dismissal and the fact it is brought before a judicial officer who is both the tribunal of fact and the tribunal of law, any factors which may tend to make consideration of the application inappropriate for any reason must be given full weight, and should usually result in the judicial officer declining to consider the application until all evidence is adduced in the hearing. It is only in the very clearest of cases that the application should be entertained before the respondent has been put to his or her election.
    2. (b)
       If the application is entertained prior to the respondent being put to their election, the application must be determined only on the evidence adduced in the applicant’s case. This will include any material tendered by the applicant which benefits the respondent, but will not include any material tendered by the respondent during the applicant’s case unless it is made admissible through cross-examination (or in this case where the rules of evidence do not apply, is properly received as a result of cross-examination).^[54] If there is any evidence in the applicant’s case which, taken at its highest, is capable of supporting the application, no matter how tenuous or inherently weak or vague, the application for summary dismissal must be dismissed.
    3. (c)
       Where the respondent is put to his or her election and declines to give or call any (possibly further) evidence, the application for summary dismissal must be determined in the manner outlined in the sub-paragraph immediately above, but any inferences that arise in the particular circumstances from the election to not adduce any evidence^[55] can also be taken into account.
    4. (d)
       Where the respondent is put to his or her election and elects to give or call evidence, the application for summary dismissal must be determined on all of the evidence.
60. [60]
    At a practical level, the occasion for an application for summary dismissal in the last two mentioned scenarios will be rare. This is consistent with the cautious approach to be taken to determining applications of this nature. If that point is reached in the proceedings, the substantive application will usually be determined on the merits of the whole of the evidence. Nonetheless there may be some occasions where it is said that the applicant’s evidence is so lacking that there is no evidence capable of supporting the substantive application, and that the evidence on behalf of the respondent does not fill the gaps in the applicants evidence, so that the substantive application is liable to summary dismissal. The decision to frame the application in that manner may be informed by an intention to apply for costs under section 157(2) of the DFVP Act, but the fact of a successful application for summary dismissal will not necessary determine the success of a costs application.
61. [61]
    Although an assessment of whether or not a particular case falls within the category of being a very clear case will be affected by subjective assessments by the judicial officer hearing the application, such a finding will be open to scrutiny on appeal and so the decision should be made with the objective features of the evidence firmly in mind.
62. [62]
    With all of the aforegoing in mind, I now turn to the grounds of appeal. The headings I have used are summaries of the grounds actually pleaded.

Ground 1:  Error in deciding the no case application on its merits.

Ground 5:  Error in considering the no case submission where the respondent had adduced evidence but not been put to his election.

63. [63]
    It is convenient to consider these two grounds of appeal together.

64. [64]
    The consideration of these grounds of appeal must take place against the background of my conclusions as to the correct approach when considering a summary dismissal application. It is common ground on the appeal that the reference to a consideration of the application on its merits is more properly understood to be a consideration of the application on the merits of the evidence. That is, after considering the weight to be attributed to various aspects of the evidence.
65. [65]
    It is common ground that an assessment on the merits of the evidence is what occurred here. For reasons earlier expressed, it was an error to determine the summary dismissal application in that manner.
66. [66]
    It is no answer to say that the Magistrate could do so because there was “no provision or rule preventing him to do so”.^[56]  True it is that there is no legislative provision that precluded the Magistrate considering the application in the way he did, but the absence of legislative restraint does not equate to a license to exercise a power in an unbridled manner. On my analysis of the prior authorities, there was a procedure to be adopted, albeit not one found in the legislation.
67. [67]
    Relevant error therefore is established on ground 1 of appeal. 
68. [68]
    Further, I cannot detect any reason why the application should have been considered before the respondent had been put to his election, especially when he had tendered evidence in the appellant’s case. Once the limits of what can be referred to are understood, this was not an example of a clear case which might justify consideration before the respondent was put to his election, even accepting his Honour’s conclusion that some of the allegations could not be made out or did not amount to domestic violence.
69. [69]
    The decision to determine the application at a particular point in time prior to the respondent being put to his or her election is ultimately an exercise of discretion, and so the principles from House v The King^[57] apply. The cases do not mandate that the decision must be left until after election, but they strongly suggest it is wise. On that basis, his Honour erred in failing to have regard to the possibility of delaying consideration of the application until after the respondent had been called on. It may well be that his Honour’s error occurred through an implicit acceptance that the application should be determined before the respondent is put to his election, in accordance with the practice in the criminal jurisdiction.
70. [70]
    I have been troubled by the fact that his Honour did not have the benefit of any submissions suggesting that, contrary to the practice in the criminal jurisdiction, his Honour should have put the respondent to his election before considering the application and what effect, if any, that should have on a finding of error in this case. While the appellant’s Counsel below took issue with the rubric by which the application was styled, she did not suggest the timing was inappropriate.
71. [71]
    Whilst I have considerable sympathy for the position the Magistrate now finds himself in, I accept there was relevant error and, notwithstanding the less than optimal assistance he was given, it was not caused by the appellant in a manner that disentitles her to a favourable finding on the ground of appeal.
72. [72]
    Relevant error is therefore established on ground 5 of appeal.

Ground 2:  Error in deciding an application that the substantive application was frivolous or vexatious.

73. [73]
    As noted earlier, the respondent’s written outline below complained that the substantive application was frivolous or vexatious, but no oral submissions were directed to the allegation.  Also as noted earlier, the allegation was ambiguous in its intended outcome.
74. [74]
    His Honour did not consider any application on that basis. Therefore it cannot be said that decided an application that the substantive application was frivolous or vexatious.   If the failure to do so was an error, which I don’t think it was in the circumstances, it is not an error the appellant can complain of. 
75. [75]
    This ground of appeal cannot succeed.

Ground 3:  Error in considering on its merits an application that the Magistrate was effectively bound to conclude that the application should be dismissed having regard to the Order of the Federal Circuit Court.

76. [76]
    I am unable to identify the application about which complaint is made in this ground of appeal.  Certainly the respondent made submissions to the effect that the Magistrate should consider the impact of the Orders made in the Federal Circuit Court.^[58]  It may be a matter of emphasis, but in my view they were legitimate submissions (leaving aside the fact they were made in the context of other identifiable errors) and did not amount in their terms to an application that the Magistrate was effectively bound to consider that the substantive application should be dismissed because those Orders had been made.
77. [77]
    In considering the transcript of evidence and Orders in the Federal Circuit Court, the Magistrate was required to weigh that material, which he does not appear to have done.  He was not bound to act in deference to any of it, including the Orders.  That is a long way from considering an application that he was effectively bound by the Orders.
78. [78]
    Section 78 of the DFVP Act mandates that the Court must have regard to any family law order, but does not stipulate that it is bound by it.  There are obvious policy reasons as to why it is desirable that the orders of two different Courts operate in a complimentary manner, but the reality is that it may be that the evidence in the two separate proceedings is so different that conflicting orders result.  That is merely the result of different proceedings being conducted in different jurisdictions. The text of s 78 recognises that such inconsistencies may arise, thereby recognising that a Magistrate will not necessarily be bound by Orders made in family law proceedings.
79. [79]
    This ground of appeal cannot succeed.

Ground 4:  Error in failing to afford the appellant procedural fairness in failing to notify of an intention to decide the application on the merits of the evidence.

80. [80]
    The manner in which this ground of appeal is drafted is such that it includes each of the applications asserted in Grounds 1 to 3 inclusive.  For the preceding reasons, the allegation that the applications of the nature asserted in Grounds 2 and 3 were made cannot be sustained, and this ground of appeal should be read as referring to a no case submission only.
81. [81]
    The affording of procedural fairness to the parties is an essential attribute of a court.^[59]  It has been described as an “immutable characteristic of a court”.^[60]
82. [82]
    Here, the Magistrate considered the application on a basis which differed from that which was said to be the appropriate basis for consideration, and did so without notifying the parties of his intention to do so and thereby without giving them the opportunity to be heard on the point.  I do not mean to suggest that his Honour deliberately set out to deny the appellant procedural fairness. In fact, the overall circumstances strongly deny any such suggestion. Nonetheless, there has been that denial in the way the matter was ultimately resolved. 
83. [83]
    Again, it is no answer to say that there is no legislative provision precluding the Magistrate from hearing the matter on the merits.  Even if I am wrong in earlier rejecting this argument under grounds 1 and 5, procedural fairness must be afforded by every Court. It required in this case that the Magistrate notify the parties of his intention to determine the application on the merits of all of the evidence and, as transpired here, on the respondent’s unread affidavit. The unfairness occasioned is evidenced by the fact that the appellant’s Counsel conducted her argument on the basis that the matter could not, and therefore would not be assessed on the merits of all evidence adduced thus far. 
84. [84]
    In my view, relevant error is established under this ground of appeal. 

Ground 6:  Error in basing the decision on the evidence of the respondent.

85. [85]
    This ground of appeal must be understood as asserting error in basing the decision, in part, on the evidence of the respondent, as it was not based in toto on the evidence of the respondent. 
86. [86]
    For reasons earlier expressed, in my view the no case application should have been determined solely on the evidence in the appellant’s case.  By that, I mean evidence adduced by the appellant, and not that tendered by the respondent in the course of her case.  The appellant complains that the Magistrate took into account the contents of the respondent’s affidavit filed in the proceedings, but which counsel had not “read” to the Court.  The appellant’s argument is therefore premised on the assertion that the Magistrate took into account material that was not in fact evidence in the proceedings before him.
87. [87]
    There can be no doubt that the Magistrate did consider the contents of the respondent’s affidavit.^[61] 
88. [88]
    However, given a Court hearing a proceeding under the DFVP Act is not bound by any practices or procedures applying to courts of record,^[62] I am not convinced that a failure to formally read the affidavit precluded reliance on its contents.  The usual practice in applications of this nature is for the filing of affidavits by both parties, and the reliance on them in place of oral evidence in chief.  Given that more relaxed practice, it seems to me that the affidavit would, if there was nothing more, be available to the Magistrate for consideration as evidence in the proceeding as a matter of usual practice.
89. [89]
    I do however accept that the reading of the affidavit affords procedural fairness to the other party so that they are aware of what case they must meet, as the appellant orally submitted before me. As the affidavit was not formally read, and there was no indication by the respondent^[63] or the Magistrate of an intention to consider the affidavit, the appellant was unaware of possible consideration of it in an application which was understood to be based only on the evidence before the Magistrate and with the appellant’s case taken at its highest. That in itself was, in my view, a denial of procedural fairness, and hence a relevant error.
90. [90]
    Further, in this matter there was more.  A direction had been given that no affidavit was to be filed unless the deponent was available for cross-examination. The appellant was entitled to expect that, given there had been no opportunity to cross-examine the respondent, that there would be no reliance by the Magistrate on the contents of that affidavit. The exchange between Counsel and the Magistrate on 25 June 2019 wherein the appellant’s Counsel indicated an intention to tender material through the cross-examination of the respondent, and the Magistrate’s apparent recognition that there was that right, can only have reinforced that expectation.  To proceed on the basis of material which was not reasonably expected to be included within the ambit of the consideration was in itself an error in the absence of giving the parties an opportunity to be heard on the issue. 
91. [91]
    In my view relevant error is established under this ground of appeal.

Ground 7:  Inadequate reasons.

92. [92]
    Given my conclusions above, it is unnecessary to consider this ground of appeal. 

Disposition of the appeal

93. [93]
    Having found relevant error, it is incumbent on me to evaluate all of the evidence and decide if the same result would have eventuated if the errors were not made. 
94. [94]
    Having assessed the evidence, I consider that there is evidence, taken at its highest, capable of supporting a finding favourable to the appellant on both the second and third limbs of s 37 of the DFVP Act.  Given the ultimate disposition of this matter, I consider it would be inappropriate to ventilate the reasons why I so find, as to do so may have the effect of influencing the Magistrate who re-hears the application and/or allow the respondent to supplement his case by attending to the matters I identify.
95. [95]
    I am unable to take up the respondent’s suggestion that I should hear and determine the whole of the proceedings if I found against the no case submission. The reason is simple; the respondent has not been called upon and hence the evidence is not in its final state. For the reasons that follow, that should occur in the Magistrates Court.
96. [96]
    In my view the re-hearing of the matter is best remitted to the Magistrates Court rather than being conducted in this Court under a grant of leave to adduce additional evidence.  That it is unknown how much extra time will be taken favours remittal to the less expensive jurisdiction, which is the jurisdiction where findings of fact are usually made in these matters.  Further, the lack of any avenue of appeal from this Court^[64] means that remittal to the Magistrates Court is favoured so as to permit correction of error, should that occur. 
97. [97]
    Finally the issue of whether an order should be made requiring the re-hearing to be conducted by a different Magistrate remains for resolution.
98. [98]
    I have been concerned about the time and expense that will be occasioned by a rehearing before a different Magistrate. A hearing by the same Magistrate would hopefully facilitate some efficiency by reducing or eliminating at least some of the double handling, as the matter could effectively just be picked up from where it left off. On the other hand the passage of time realistically means that considerable revisiting of the material would be required in any event. 
99. [99]
    Ultimately, and contrary to my initial view, I accept that an order that the matter be re-heard by a different Magistrate is desirable. Whilst I have no doubt the primary Magistrate would attempt to eradicate any preconceived views of the evidence he held, there will undoubtedly be a perception that he is unable to. Further such an order is consistent with the outcome in Goli v Blue 11 Pty Ltd.^[65] Hopefully some efficiency can be generated by tendering the transcripts of what has already occurred^[66] rather than requiring a repeat of all oral testimony.

Costs

100. [100]
     I will hear the parties as to costs by way of written submissions, as was foreshadowed at the hearing.