Wylie v AMN[2022] QDC 241

DISTRICT COURT OF QUEENSLAND

Contents

Introduction2

Background3

The hearings before the learned Magistrate4

Delay in filing the Notice of Appeal7

Nature of the Appeal8

The jurisdictional issue9

The summary dismissal issue13

Introduction

1. [1]
   This is an appeal from a decision of the Magistrates Court at Pine Rivers to dismiss the application for a Protection Order by the appellant Senior Constable Abbie Wylie (SC Wylie) for a protection order under the Domestic and Family Violence Protection Act 2012 (‘the DFVP Act’).   While several grounds were advanced, the appeal ultimately came down to two issues:

1. (a)
   Whether the learned Magistrate had erred in assuming her Honour had jurisdiction to hear and determine the application in circumstances where the Police Protection Notice initiating the proceeding was served at the Caboolture Police Station, but was filed in the Pine Rivers Magistrates Court; and
2. (b)
   Whether the Magistrate erred in dismissing the application summarily, without giving the appellant/applicant the opportunity to cross examine witnesses for the respondent. 

1. [2]
   The first matter was raised by the respondent not the appellant and no notice of contention was filed to raise that point.  However, as it went to jurisdiction, it was probably open to the respondent to raise it on the appeal in any event.  Despite that, on the hearing of the appeal on 23 May 2022, the respondent accepted that her Honour had jurisdiction.  As to the second matter, it was conceded by the appellant on hearing of the appeal that the Magistrate erred in dismissing the application summarily and that the appeal should succeed.  On 23 May 2022, I made the orders upholding the appeal along with consequential orders, with reasons to follow.  These are the reasons for those orders. 

Background

1. [3]
   The respondent, (‘AMN’) to the application for a Protection Order and to the appeal, is a serving police officer who was in a relationship with the aggrieved for 2.5 years. They were married on 25 January 2020 and have one child, born on 2 August 2020.
2. [4]
   On 28 April 2021, SC Wylie served a Police Protection Notice (‘the Notice’) upon AMN at the Caboolture Police Station.  The Notice had been issued by an officer at the Mango Hill North Lakes station. Prior to serving the Notice, police officers spoke with AMN in the conference room at Caboolture Police Station where he was on duty.  The Notice contained two conditions: that AMN be of good behaviour and that he not have contact with the aggrieved.  It included the couple’s daughter as named party.  The Notice specified that AMN was required to appear at the Pine Rivers Magistrates Court on 5 May 2021.
3. [5]
   The gravamen of the grounds attached to the Notice alleged that:

1. (a)
   AMN had made frequent accusations of the unfitness of the aggreieved to be a mother, including alcoholism, and said he would obtain custody of the child, despite taking little responsibility for care of the child;
2. (b)
   In an argument on 8 April 2021, AMN said that he carries a gun all day for his work and that the aggreieved should remember this when she speaks to him;
3. (c)
   On 24 April, after an argument, the aggreieved was told by AMN’s mother that he was threatening to jump in front of a truck;
4. (d)
   During a visit on 25 April 2021 to the aggreieved’s house, AMN said words to the effect that the agreieved made him want to step in front of a truck and asked how she would feel if he did it while holding the child; and 
5. (e)
   AMN frequently asked her what she was doing, who she was with, and frequently accused her of lying and cheating in her responses, and then denied doing so in later conversations; and
6. (f)
   AMN said that he has a position of power and that no-one will believe her over him.

12. [6]
    That attachment also included a note of the response of AMN when interviewed by Police and recorded his denial of all the aggrieved’s allegations. These were (and remain) untested allegations against AMN. 
13. [7]
    The Notice was filed as an application in the Pine Rivers Magistrates Court in accordance with the procedure contemplated by s. 111(1) DFVP Act.   At the first return date on 5 May 2021, a Temporary Protection Order was made largely in the terms of the orders set out in the Notice, presumably without admissions.
14. [8]
    Affidavit evidence was then filed by the parties.  The aggreieved filed an affidavit in support of her statements recorded in the Notice.   Affidavits were also filed by her mother, her aunty and a case worker in support of her application.   Although these other affidavits were not brief, (other than the case worker’s affidavit, which merely recorded what she had been told by AMN) the affidavits showed considerable animus towards AMN.  They did not assist much, however, in assessing the key allegations made by the aggrieved.  
15. [9]
    AMN filed three affidavits, including one of 208 paragraphs and 28 pages (the long affidavit).  That affidavit appears to have been prepared without access to the aggrieved’s affidavit or the other material filed in support of the application.  He also relied on affidavits of his mother, father and brother.
16. [10]
    AMN’s material directly rejected the versions of events given by the aggreieved and her family members, also in a strident manner.  His long affidavit gives a version of events which might explain how the alleged statement about stepping in front of the bus arose.  His long affidavit also articulates a number of acts by the aggrieved which might be construed as being acts of domestic violence by her including:

1. (a)
   Threatening from time to time that she will destroy his career as a policeman; and
2. (b)
   Describing him as an unfit father and threatening that he will not get access to his daughter.

12. [11]
    He also gave evidence that it was the aggreieved’s mother who was responsible for the “hit by a truck” discussion, alleging that she had told him he should be hit by a truck in the course of an alleged tirade of abuse of him and his character.  He paints a picture of the aggreieved as a mentally and emotionally unstable and manipulative person.
13. [12]
    Such was the state of the evidence when the matter came before her Honour for the first time on 22 September 2021.   The matter had been listed for mention, apparently for the purpose of allocating trial dates. 

The hearings before the learned Magistrate

12. [13]
    At that mention, AMN’s solicitor, Mr Carroll, submitted that the application was commenced in the wrong court and that accordingly, the proceedings are a nullity.  He said he would write an outline of his contentions to the Police that afternoon.  He also submitted that the Notice should be withdrawn from the Pine Rivers Magistrates Court and restarted in the ‘correct’ court, which he submitted was Caboolture. In light of these submissions, the Magistrate adjourned the proceedings to the following day to allow the police to prepare submissions on that issue.
13. [14]
    It was evident, on 22 September 2021 that there had been some delay of the proceeding pending review of the application by more senior QPS officers, but that they had determined to proceed.  In that context, her Honour informed the Police advocate, Sergent Hulin representing the applicant SC Wylie, that her Honour was concerned about the delay given that the respondent was a serving Officer.   Her Honour said she would read the material and mention the matter the next day at which time she would consider whether the application should be “listed for trial, listed for review again, or dismissed”.^[1]  The basis for it to be dismissed appeared to be if her Honour concluded that the matter should be stopped because it was a waste of time setting it down for trial.^[2]  No submission had been made by either party to her Honour  that dismissal should be considered.
14. [15]
    The following day, on 23 September 2021, Mr Carroll appeared and submitted that the application should be dismissed on the basis that the application was commenced in the wrong court or alternatively, the Court should find that there is insufficient evidence for a Magistrate to be satisfied that it is necessary and desirable to issue a protection order.
15. [16]
    Mr Caroll further submitted that the application was merely filed by SC Wylie “out of caution” and since its filing, the aggrieved and respondent have “come a long way” and were currently seeking a custody arrangement in relation to their daughter in the Federal Circuit Court. He submitted that a trial would be a waste of time and money and any further necessary arrangements could be dealt with in the family law proceedings.
16. [17]
    Before Sergent Hulin’s substantive submissions, her Honour explained the nature of the hearing as she saw it as follows^[3]:

A hearing review has another important point and that is, in some courts in Queensland, matters are dismissed without any argument if the magistrate assesses that there’s no case. That rarely happens if it’s a police application, but there is an important point that if the evidence produced by the applicant is insufficient to establish that there’s a likelihood, then it’s a waste of court resources and everyone’s time for the matter to proceed to trial, particularly in this court, where I can’t give you a hearing date until next year and we won’t know what the hearing date is until next year, and the respondent is a serving police officer.

12. [18]
    Sergeant Hulin made two submissions in response on behalf of SC Wylie.
13. [19]
    First, she submitted that the Court had have jurisdiction to hear and decide any application made under the DFVP Act.
14. [20]
    Second, she submitted that the matter should not be decided at the review mention but should instead be listed for trial.  Her arguments were succinctly summarised as follows:

Your Honour, essentially, in relation to necessary or desirable, your Honour, if your Honour does require me to submit on that, the material from the aggrieved and police do, in my submissions, outline an ongoing pattern of controlling behaviour along with the threats. Whilst they have separated, your Honour, this behaviour is alleged to have happened whilst they were separated and it has continued and it appears to be – one of the main issues is the arrangements with the child, and I note that  they are still going through Family Court proceedings and that has not yet been resolved.

Your Honour, in my submission, the material filed by the police does indicate risk factors that include separation, custody issues, controlling behaviour, gaslighting, jealousy and an allegation of a threat to kill the child. You honour, his material – he does deny the allegations. I do note that his material raises credibility about her mother and brings up an allegation of a previous affair and accuses her aunty of being a high-functioning alcoholic, which they’re not here to respond to those allegations. In relation to necessary or desirable, your Honour, I would submit that it is necessary to ensure accountability of the respondent. They are still going through Family Court proceedings, which will take some time, in my submissions. There is an allegation in relation to his service firearm that the aggrieved alleges happened on the 8^th of April.

12. [21]
    It is relevant to note that all through the submissions, her Honour made various observations about parts of the evidence filed in the matter, expressing views on whether statements from the aggrieved were credible.  A key example is the following:

I’m a bit concerned. I’ve reviewed the material, and when I reviewed all that material, I came to what I thought was an inescapable conclusion, that no court would make an order. That is because even if the court accepted the aggrieved’s description of a tense relationship, that when the court looked at it, they would assess that there were three primary matters that might call for a domestic violence order. One of those was threatening to take the child away from her, one of them was the suggestion about making a threat about his police firearm and one was… about the suggestion that he walk out in front of a truck with the child.

…

So those were the three things. After reading his material and her material, I don’t accept what the Sergeant said, that his material is disjointed. I think he goes to great length. It’s hundreds of paragraphs. He goes into great detail about every incident that’s been alleged against him. It’s not disjointed at all.

…

And it was clear to me that he has – there’s – that it’s a court assessing his credibility as a police officer and her credibility as a teacher, both of them on the basis they are people with responsible jobs who the court would ordinarily find are to be believed. But because of the subtleties of words spoken and, perhaps, misunderstanding, it did seem to me that there was some serve problems with the evidence about each of those three things. He says he’s never threatened to take the child away from her, never threatened her to take her job off her, but has said he wants to work towards fifty-fifty custody, which is a reasonable thing.

…

About the gun, there – it’s just so subtle. She puts his words in inverted commas in her affidavit, but it’s not recorded and it’s to the best of her recollection, and it’s her recollection through the prism of her absolute contempt for him.

12. [22]
    It must be recalled these observations were being made without having seen or heard any of the witnesses, without full argument and in circumstances where the prospect of summary dismissal was raised by the Court on one day’s notice.
13. [23]
    Her Honour’s reasons reflect these comments in submissions.  After identifying the three acts in the previous passage, her Honour observed in her reasons^[4]:

The evidence about those three things are all unsatisfactory. The aggrieved has given a very short affidavit of only about 24 paragraphs and only a few pages. The respondent has given a much more fulsome account of their relationship, that extends over 208 paragraphs and almost 30 pages. I believe a Court would not be able to be satisfied on any basis that the exact words spoken by AMN  were the ones that The aggreieved  records in her affidavit. The words that she recalls are slightly different from the works that her mother recalls on some of the conversations, and slightly different from what some of her aunty recalls. The recollection is clearly affected by the amount of hostility that The aggreieved  feels towards AMN .

…

I believe that no Court would be satisfied, on the balance of probabilities, that AMN  made any threat to commit suicide by walking in front of a truck and made the added threat that he might take his child with him to do such a thing. I believe that no Court in Queensland or elsewhere would be satisfied that AMN made a threat about using his firearm in any way to control the complainant. I am satisfied that no Court in Queensland or elsewhere would be satisfied on the evidence contained in the affidavit material that AMN was controlling of the aggreieved by threatening to tale the child away from her.

12. [24]
    Later her Honour observed^[5]:

I respect that Sergeant Mote has reviewed it and come to that opinion. But I believe that the material provided by the respondent is far more expansive that that of the aggrieved. When reading the comments of the aggrieved made in text messages, I find that no Court would be satisfied that she is in fear for her safety because of the robust way with which she continues her often abusive conversations with AMN .

I reach the conclusion that the Court might be minded to find that there was some act of domestic violence while the couples were living together last year, in 2020, at Tara. I reach the conclusion that there is no prospect that a Court would find that it would be necessary or desirable to make a permanent protection order against AMN . The matter is listed for review. It is argued because the Court by a Sergeant Hulin that the Court should simply review to see that all parties had filed their material. I reach the conclusion that if at a hearing review the Court is satisfied that there is a problem with the evidence filed, the Court should review that evidence and should not waste Court time setting matters down for hearing where there is no prospect that the applicant will be able to convince a Court to make a protection order.

In this matter, I reach the conclusion that there is no prospect that a Court will find that it is either necessary or desirable to make a protection order, given the difficulties with the evidence. And I therefore dismiss the application by Senior Constable Wylie against AMN  and I made an order that the temporary protection order ends today.

Delay in filing the Notice of Appeal

12. [25]
    The Notice of Appeal was filed by the appellant on 22 October 2021. Under s. 165(4) DFVP Act, an application must be filed within 28 days of the decision however, the court may grant the appellant leave to extend this period.   The appellant sought leave.  The application to extend the period of time to file the notice of appeal was heard at the same time as the appeal. The appellant submitted that the notice was filed one day out of time due to a calculation error by the legal representative of the appellant. The respondent submitted in their written outline that the appellant is well resourced and simply failed to lodge the appeal in time. As the length of the delay was minimal, and the respondent did not suffer any identifiable prejudice from the delay, leave was granted to the appellant to extend the period of time to file their Notice of Appeal to 22 October 2021.

Nature of the Appeal

12. [26]
    The applicant appeals the decision of the Magistrate relying on s 164(c) of the DFVP Act which provides that a person who is aggrieved by a decision to refuse a protection order may appeal against the decision. Section 168 provides:

168 Hearing procedures

1. (1)
   An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.
2. (2)
   However, the appellate court may order that the appeal be heard afresh, in whole or part.

12. [27]
    The appeal is by way of rehearing. In GKE v EUT [2014] QDC 248, McGill DCJ SC observed:

27. [1]
    On 15 March 2013 a protection order was made in the Coolangatta Magistrates Court under the Domestic and Family Violence Protection Act 2012 (“the Act”) s 37, against the appellant for the benefit of the respondent. By this appeal the appellant seeks to have that order set aside. The appellant has a right to appeal against the decision under s 164 of the Act, and the appeal was started within the time specified in s 165. By s 168, unless the appellate court orders that the appeal be heard afresh, “an appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.” It appears to follow that, unless there are grounds to order a rehearing de novo, there is no power to admit fresh evidence on the hearing of the appeal. Under s 169, in deciding this appeal I can confirm the decision appealed against, vary it, set it aside and substitute another, or set it aside and remit the matter to the Magistrates Court.
28. [2]
    The first question that arises is as to the nature of the appeal. Section 168 does not make the appeal one by rehearing, and the restriction on the consideration of only the evidence before the court that made the decision under appeal is consistent with the idea that the appeal provided is an appeal in the strict sense. The concept of an appeal being by way of rehearing is well established, and there are number of statutes which provide for such an appeal, so the absence of such a provision from division 5 suggests that what is intended is an appeal in the strict sense. On the other hand, s 142(2)(e) expressly provides that ch 18 of the Uniform Civil Procedure Rules applies to a proceeding under the Act. Chapter 18 is concerned with appeals, and operates only to the extent that the application of the rules is not inconsistent with the Act: s 142(1)(b).
29. [3]
    Part 3 of Chapter 18 deals with appeals to a court other than the Court of Appeal, and provides in r 783 for appeals to the District Court from the Magistrates Court. Rule 785 provides that the rules in Part 1, dealing with appeals to the Court of Appeal, other than specified rules, apply to such appeals, with necessary changes. Accordingly r 765(1) applies to such an appeal, and that rule provides that an appeal to the Court of Appeal is an appeal by way of rehearing. It follows that, by this somewhat convoluted path, the legislature has provided that the appeal to this Court is an appeal by way of rehearing. That has the consequences which have been laid down by the Court of Appeal.

12. [28]
    The effect of that conclusion on the nature of the appeal is that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.^[6]

The jurisdictional issue

12. [29]
    Section 111(1) DFVP Act provides:

If a police officer issues a police protection notice, a copy of the notice must be filed in the local Magistrates Court for the respondent.

12. [30]
    Section 112 provides that a police protection notice is taken to be an application for a protection order made by a police officer.  It follows from section 111(1), read with s. 112, that the Act contemplates that an application arising out of a police protection notice will be made to “the local Magistrates Court for the respondent”.
13. [31]
    The schedule to the DFVP Act defines “local Magistrates Court” as:

1. (a)
   for a respondent named in a police protection notice—a Magistrates Court within the district where the police protection notice was issued against the respondent; or
2. (b)
   for a respondent named in an application for a protection order prepared by a police officer under section 118(1)—a Magistrates Court within the district where the respondent was taken into custody under section 116.

[underlining added]

12. [32]
    Section 101 deals with issuing of police protection notices.  It does not expressly state how the place of issue of the notice against the respondent is to be determined.  However, it appears from that section and the balance of the sections in Part 4 Division 2 dealing with police protection notices, that the location where a police protection notice is issued against the defendant will be where the officer takes the formal step of issuing the notice rather than where the notice is served on the respondent.  Division 2 draws a consistent distinction between the idea of a notice being issued against a defendant on the one hand, and the service or notification of that notice on the other.
13. [33]
    Before her Honour, it was contended that the application based on the Notice had been filed in the wrong local Magistrates Court because the Notice was issued at Caboolture and filed as an application in Pine Rivers.  The districts of the Magistrates Court are established by the Justices Act 1886 and set out in Schedule 1 of the Justices Regulations 2014.  Relevantly, Pine Rivers Shire is listed as area within the Caboolture district^[7]:

6 Caboolture

1. (1)
   The name of the district is Caboolture Magistrates Courts District.
2. (2)
   The area of the district is the area consisting of the following— • Caboolture Shire as shown on area map LGB27 edition 4 • Pine Rivers Shire as shown on area map LGB104 edition 5.
3. (3)
   The places for holding Magistrates Courts in the district are Caboolture, Petrie and Strathpine.

12. [34]
    Although the area which was Pine Rivers Shire is now part of Moreton Bay Regional Council, that does not alter the statutory description of Caboolture District.  The area described is still capable of objective identification from the particularised maps. 
13. [35]
    Although the respondent conceded that the appeal should be upheld on the summary dismissal ground, he submitted in writing that in reconsidering the application, the Court ought to dismiss it because the proceedings were a nullity for commencement in the wrong Court.  On the hearing of the appeal, however, Mr Carroll for AMN accepted that the Pine Rivers Magistrate Court is in the Caboolture District and accordingly, the application was commenced in the correct local Magistrates Court under s. 111(1).   However, both parties asked that I express a view on the jurisdictional implications of filing a police protection notice in the ‘wrong’ local Magistrates Court contrary to s. 111(1). 
14. [36]
    In my opinion, an application for a protection order based on a police protection notice filed in a Magistrates Court district which is not the district provided for in s. 111(1) in relation to a particular respondent is validly brought before that Magistrates Court and that Court has jurisdiction to hear and determine that application.  I explain my reasons.
15. [37]
    Section 136 of the DFVP Act confers the jurisdiction on the Magistrates Court over any application made under the Act.^[8]  It provides:

136 Conferral of jurisdiction

1. (1)
   A court has jurisdiction—

   1. to hear and decide any application made to the court under this Act; and
   2. to perform any other function or exercise any other power conferred on the court under this Act.
2. (2)
   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.

12. [38]
    The plain words of that section are contrary to the proposition that compliance with with s. 111(1) is a condition on the jurisdiction of a Magistrates Court to hear and determine an application arising from filing of a police protection notice.  Section 136(1)(a) is an express conferral of jurisdiction to decide ‘any application’ made to the Court under the Act.  A police protection notice filed in the wrong district is still an application to the Court under the Act. 
13. [39]
    Further, s. 136(2) is impliedly inconsistent with any jurisdictional limitation arising from s. 111(1).  The meaning of that section is that Parliament intends Magistrates to have jurisdiction over any application no matter where it is commenced.  That is inconsistent with the proposition that commencement in the wrong district under s. 111(1) excludes jurisdiction of any Magistrates Court but a Court in the correct district to hear and determine the matter. 
14. [40]
    Laws conferring jurisdiction are to be construed broadly.  In Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404^[9], the Court held:

It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

12. [41]
    This passage was approved by Hayne, Crennan and Kiefel JJ in Weinstock v Beck (2013) 251 CLR 396 at [55].  It follows that the words of the express jurisdiction conferring provisions should be read using the ordinary meaning of the words used.^[10]  Further, such provisions should not be construed as withdrawing or constraining the conferral of jurisdiction upon a court unless it is clearly and expressly stated.^[11]   Given the language of s. 136 and the principles appliable to construction of jurisdiction provisions, it plain that it is not Parliament’s intention to make compliance with s. 111(1) a matter which goes to the jurisdiction of the Court in which the application is filed to hear and determine the application, even if it is strictly speaking the wrong local Magistrates Court under s. 111(1) for a particular police protection notice.
13. [42]
    This construction is supported, if support is necessary, by the consideration that the language of s. 111(1) is not directed to the Court, but to the party filing the police protection notice as an application.  Of course, police officers who are filing police protection notices ought to endeavour to comply with the direction in s.111(1).  And further, if filed in the wrong district, there might be a compelling reason why the application should be transferred to the correct district under the DFVP Act, particularly if that is the more appropriate forum for some reason.   Such a response is contemplated by the Domestic and Family Voilence Protection Rules 2014 (‘DFVP Rules’), to which I briefly turn.
14. [43]
    Rule 8(1) DFVP Rulesprovides:

1. 8DFVPA application may be filed in registry in any district or region

1. (1)
   A DFVP application, other than a police protection application, may be filed in a registry of a DFVP court in any district for the court or region. Notes— 1 See the DFVP Act, section 111 for where a police protection application is to be filed. 2 See the DFVP Act, section 136 for a DFVP court’s jurisdiction.
2. (2)
   In this rule—

Childrens Court judge see the Childrens Court Act 1992, section 3.

district, for a DFVP court, means—

1. (a)
   if the DFVP court is a Magistrates Court—a district appointed under the Justices Act 1886 for the purposes of a Magistrates Court; or
2. (b)
   if the DFVP court is the Childrens Court, and the court is constituted by a Childrens Court magistrate—a district appointed under the Justices Act 1886 for the purposes of a Magistrates Court; or
3. (c)
   if the DFVP court is the Childrens Court, and the court is constituted by a Childrens Court judge—a district of the court declared by regulation made under the District Court of Queensland Act 1967, section 7; or
4. (d)
   if the DFVP court is the District Court—a district of the court declared by regulation made under the District Court of Queensland Act 1967, section 7; or
5. (e)
   if the DFVP court is the Supreme Court—a district of the court mentioned in the Supreme Court of Queensland Regulation 2012, schedule.

region means a region under the Supreme Court of Queensland Act 1991, section 53.

12. [44]
    The terms of Rule 8(1) are intended to reflect the terms of s. 111(1).  However, if on its proper construction, section 111(1) does not confine the jurisdiction of the Court by reference to location where the notice if filed, then a rule (as subordinate legislation) cannot.
13. [45]
    Further, attention must be paid to Rule 6, which is a familiar form of rule in civil procedure. ^[12]  It provides:

1. (1)
   A failure to comply with a rule is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding a nullity.
2. (2)
   However, a DFVP court can make an order dealing with a failure to comply with a rule if the court considers it appropriate.
3. (3)
   The DFVP court may waive compliance with a rule, or excuse noncompliance with a rule, if the DFVP court considers compliance with the rule would be inconsistent with—

1. the main objects of the DFVP Act under the DFVP Act, section 3; or
2. the principles for administering the DFVP Act under the DFVP Act, section 4.

12. [46]
    The terms of Rule 6 are directly inconsistent with any argument that Rule 8(1) elevates the requirements as to location in s. 111(1) to a matter going to jurisdiction.
13. [47]
    Finally, that construction seems to be expressly confirmed by the potential application of s. 32 Justices Act 1886^[13] through the application provision in s. 143(a) DFVP Act, though there is considerable ambiguity as to how that provision should be interpreted and applied.

The summary dismissal issue

12. [48]
    Her Honour summarily dismissed the application for a protection order.  Two questions arise:

1. (a)
   Did her Honour have power summarily to dismiss the proceeding (and if so, what was the source of that power)?
2. (b)
   If her Honour did have power summarily to dismiss the proceeding, was that power exercised correctly?  

12. [49]
    The Act provides for applications for domestic violence orders to be heard and determined as civil proceedings, not criminal proceedings.  Although that is not expressly stated in the Act, it is the inevitable implication flowing from the terms of the Act.
13. [50]
    First, s. 4(f) provides “a civil response under this Act should operate in conjunction with, not instead of, the criminal law”.  This section demonstrates that the Act is intended to create a civil response to the problems of domestic violence identified in s. 3 of the Act, which civil response is to work with the criminal law rather than replace it.  I cannot see any warrant in that section for inferring Parliamentary intention to incorporate criminal law principles and practices into the civil system created by the Act.  Rather, the section reflects a concern by Parliament to avoid any suggestion that the civil remedies in the Act somehow modify or restrict the criminal law response to domestic violence.
14. [51]
    Second, the structure of the Act for obtaining domestic violence orders reflects familiar civil law concepts.  It creates a right to obtain a domestic violence order and then provides for an inter partes process between an applicant and a respondent for the determination of whether any such orders should be made binding the respondent.  The conferral of standing on Police Officers as applicants does not lead to an implication that somehow principles relevant to the administration of the criminal law should enter the operation of the Act by a sidewind. There is nothing unusual about a statute conferring standing on a particular person to bring or defend civil proceedings.  Indeed, incorporating Police Officers as applicants in inter partes litigation is indicative of the intention that they participate as parties in civil proceedings.
15. [52]
    Third, the Act reflects common civil proceedings concepts in other ways, such as its provision for interlocutory (temporary protection orders) and final (protection orders), provision for amendment of orders on application of the parties, and so on.
16. [53]
    Fourth, by s. 145(2), the Act adopts a civil standard of proof.
17. [54]
    The adoption of a civil law process for administration of the rights and obligations created by the Act in relation to domestic violence orders requires an approach to the power conferred to hear and decide applications under the Act which is informed by civil law and practice rather than that of criminal law and practice.  With respect to those who hold a contrary view, I do not think that reference to, or incorporation of, practices and procedures from the criminal law is consistent with the scheme of the Act.   
18. [55]
    It might be thought that there is some ambiguity about this created by 143(a) of the Act which provides that for a proceeding under the Act before a Magistrates Court, the provisions of the Justices Act 1886 apply unless inconsistent with this Act.  The Justices Act deals with summary criminal matters.  My brief review of the Justices Act left me uncertain as to how any of its terms apply, particularly given the exclusion of provisions inconsistent with the Act. ^[14]  It is unclear to me what is sought to be achieved by s. 143(a).  But whatever might be its purpose, it would be inconsistent with the Act in my view if its provisions applied procedures appropriate to criminal matters to applications under the Act.
19. [56]
    The Act confers jurisdiction on the Magistrates Court to hear and decide applications for domestic violence orders.^[15]  The Act does not specify in those provisions the procedures by which the court is to hear and decide applications.  However, those matters should be informed by the principles generally applicable to the conduct of civil proceedings, and the specific provision in the Act which impact on the way matters are heard and determined. 
20. [57]
    What do the principles generally applicable to the conduct of civil proceedings have to say about summary determination of civil claims?  The answer is given authoritatively in one of the most widely cited passages in the law of civil procedure: Barwick CJ’s statement in General Steel Industries Inc. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-129.  There his Honour observed (footnotes omitted):

At the outset the plaintiff submits that whatever conclusion I might reach upon the legal questions involved, I ought not to deal summarily with the action but should allow it to proceed, leaving the defendants to raise their points in opposition to the plaintiff's claim in proceedings on demurrer or by points of law taken on the pleadings and dealt with under Order 26, r. 16, or perhaps by special case under Order 35.

The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action—if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal—is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners [1] where he says [2]: “A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.” Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

[underlining added]

12. [58]
    As his Honour makes clear, these principles apply equally to statutory or inherent powers summarily to dismiss, bearing in mind of course that a statutory power to dismiss might in terms permit dismissal on a lesser basis of certainty.  An example of just such a possibility is Rule 292 UCPR.  There was initially debate about whether the precise content of the test of “no real prospect of defending the case” creates a lesser burden than that stated in General Steel.  The resolution of that debate is not presently relevant.  What is relevant is the recognition inherent in that debate that Parliament can modify the standards for summary disposal of proceedings.   
13. [59]
    Was there a statutory power authorising her Honour’s summary dismissal of the application? Statutory powers to summarily dismiss civil proceedings are ubiquitious in modern civil procedure rules.  They are dealt with in the UCPR in Chapter 9 headed ‘Endings Proceedings Early’.  That chapter deals, inter alia, with summary judgment and default judgment, the former being most like what occurred in this case.  The UCPR is expressly made inapplicable to proceedings under the Act other than on appeal: s. 142(3).  Rather, attention is directed to the DFVP Rules: s. 142(1).
14. [60]
    The Domestic Family Violence Prevention Rules 2014 do not provide for summary determination other than by withdrawal of an application: see Part 6.  Indeed, it might be thought that the DFVP Rules are more consistent, if anything, with the conclusion that the Court may not summarily determine an application.  Rule 22 provides a plenary power to make directions for the conduct of proceedings in the Court.  That power is conditioned by Rule 23 which provides:

1. 23.Matters relevant to making orders or issuing direction

1. (1)
   In deciding whether to make an order or issue a direction, the interests of justice are paramount.
2. (2)
   In addition to the principle mentioned in subrule (1), in deciding whether to make an order or issue a direction of a type mentioned in rule 22, the DFVP court may have regard to the following matters—

…

2. (b)
   that each party is entitled to a fair hearing;

…

1. (i)
   that each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses;  

12. [61]
    Turning to the Act itself, apart from s. 51, there does not appear to be any statutory provision which expressly, or by necessary implication, authorises hearing and determination of an application for a (final) protection order other than by “trial” of the application.   It is to be noted of course that the Act does not expressly say that a protection order is to be determined by trial.  However, where the Act creates a right and confers civil jurisdiction on a court to hear and decide an application to enforce that right, it must necessarily imply that the application be determined by procedurally fair process apposite to a hearing which results in a final order.  At the least, that must include a reasonable opportunity to lead evidence, cross examine and otherwise test another party’s evidence and address the Court on the findings of fact that the Court should make on the evidentiary record and the law that applies to those facts.
13. [62]
    Section 51 provides an exception to this obligation by expressly providing for the making of orders by consent without determination of the matters identified by the Act as necessary preconditions to the making of a domestic violence order.   But it is an exception which one might think rather confirms the general rule where applications for final orders are not by consent.  
14. [63]
    Temporary orders are in a different category. The statutory provisions which establish the nature of the temporary protection order and regulate its hearing and determination reflect the well known distinction in civil proceedings between interlocutory and final orders.  The interlocutory nature of the temporary order is reflected, inter alia, in the following:

1. (a)
   The termporary order may be made only when an application for a final protection order is before the Court but unresolved, or is to be filed but has not yet been filed: see s. 44;
2. (b)
   The evidence required to establish the conditions for making of such an order is not the balance of probabilities but the more flexible “sufficient and appropriate having regard to the nature of the order”: see s. 46; and
3. (c)
   A temporary order is resolved by reference to the outcome of the underlying application for a protection order: see s. 98. 

12. [64]
    There is one other provision which should be mentioned in this context.   Section 145(1)(a) relevantly provides that the Magistrates Court is not bound by “any practices of procedures applying to courts of record”.  It is difficult to know exactly what is meant by this. In Powell v Queensland University of Technology [2018] 2 Qd R 234 at [89] - [90], Sofronoff P observed:

89. [89]
    Section 164 of the QCAT Act establishes the Tribunal as a court of record.  This is not a mere technicality.  It connotes two things.  First a court of record possesses an inherent power to punish for contempt.^[16]  Indeed, s 219 of the Act confers upon the Tribunal “all the protection, powers, jurisdiction and authority [of] the Supreme Court … in relation to contempt”.
90. [90]
    For present purposes, it is the second characteristic of courts of record that is significant.  It is that the record of a court is conclusive evidence of what is recorded therein.

“A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony:  which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question.  For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary.  And if the existence of a record be denied, it shall be tried by nothing but itself ...”^[17]

(footnotes omitted)

12. [65]
    The Magistrates Court is a court of record.^[18]  The effect s. 145(1)(a) read literally seems to be that the Magistrates Court as a court of record is not bound by any practices and procedures that apply to it as such when hearing and deciding applications under the Act.  This is a difficult provision to apply.  The provision might be intended to confer additional procedural flexibility on the Magistrates Court when hearing an application, but it is difficult to see it extending to a power summarily to dismiss proceedings where there are contested factual issues, not least because it says nothing about when and on what conditions summary dismissal is authorised.  (And even if it did, it is impossible to infer from that provision an intention in Parliament to exclude procedural fairness in the determination of an application.)
13. [66]
    In my view, her Honour did not have an express statutory power summarily to dismiss a contested application for a protection order.  
14. [67]
    Of course, that is not the end of the matter.  Chief Justice Barwick’s observations also contemplated the power of a Court summarily to dismiss civil proceedings in the Court’s inherent jurisdiction to prevent abuse of its own process.  Courts of statutory jurisdiction do not have inherent jurisdiction.  However, such courts do have implied power to do whatever is necessary to perform their function. In this case, a Magistrates Court has an express statutory power to “hear and decide [an] application” for a protection order.  Such an express grant of power carries with it an implied gran of power to do “everything necessary for its exercise”. In Gassby v The Queen (1989) CLR 1 Dawson J explains:

…every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent Powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J. points out, fundamental.

12. [68]
    In this context, everything “necessary” is limited to actions which are reasonably necessary for the performance of the court’s statutory function.  In Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452 it was stated:

The term "necessary" in such a setting as this is to be understood in the sense given it by Pollock CB in The Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term "necessary" does not have the meaning of "essential"; rather it is to be "subjected to the touchstone of reasonableness"

12. [69]
    The implied power extends to the power to dismiss proceedings which are an abuse of the court’s process, inter alia, because the proceedings are hopeless, as explained in General Steel itself. (though the categories of abuse of process are wider and are never closed^[19]).  There is no reason why that implied power would not arise in the hearing and determination of protection orders under the Act.  Such has been expressly accepted in respect of applications for protection orders under the Act by this Court, and I agree in that conclusion.^[20]  
13. [70]
    Further, reference should be made at this point to s. 157 of the Act. That section relevantly provides:

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.

12. [71]
    In HDI v HJQ [2020] QDC 83, Muir DCJ considered that the wording of section 157(2) recognised that there was a power in the Court, either express or implied, to dismiss applications which were “malicious, deliberately false, frivolous or vexatious”.^[21]  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.^[22]  I prefer the option suggested by her Honour that the section recognised the implied power to dismiss in circumstances which amount to an abuse of process, rather than expressly created such a power.  Reasonable minds could differ, however, in respect of her Honour’s view that the power to stay is excluded by the implied recognition of the power to dismiss for, in effect, abuse of process.  A stay is simply a different remedial response to abuse of process and might be the more appropriate that dismissal as a response to an abuse of process in particular circumstances.^[23] Reasonable minds might differ as to whether the incidental reference to dismissal as an abuse of process excludes other established civil responses to abuse of process.   Bearing in mind the character of this Court as an appellate Court under the Act as a final court of appeal, however, I do not consider in this context I should express a contrary view to her Honour’s, at least in the absence of full argument.
13. [72]
    The existence of disputed material issues of fact is the index case where summary determination on the basis that a proceeding is so hopeless as to be an abuse of process requires the exceptional caution.  I have underlined in the above passage from General Steel, the observation that once there is a real question of fact to be determined, it is not competent for a court to summarily dismiss.  More recently, in Filmana Pty Ltd v Tynan [2013] QCA 256, Muir JA (with whom McMurdo P and Holmes JA agreed) observed:

It was submitted that the primary judge was overly robust in applying the no real prospect of success‖ test in r 292 of the UCPR and that the complexity of the questions requiring determination made summary judgment inappropriate. Reliance was placed on the observations of Mason CJ, Deane and Dawson JJ in Webster v Lampard:

The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried’ …

Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that ‘great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.’” (citations omitted)

12. [73]
    These orthodox principles were applied in the context of the Act in AJC v Constable Kellie-Ann Gijsberten and Ors [2019] QDC 195, where Lynham DCJ dealt with the circumstances in which a Magistrate may conduct a hearing without witnesses giving sworn evidence and being cross-examination. His Honour stated:^[24] (underlining added)

However, as with applications “on the papers” in the traditional sense, hearing and determining applications under the DFVPA based only upon affidavit and other materials as well as oral submissions without requiring witnesses to give sworn evidence and be cross-examined is not a procedure which will be appropriate in every application. Caution will need to be exercised when to allow such a hearing. Its appropriateness will be determined by the issues raised in a particular application. For example, it may well be appropriate to determine an application for a protection order “on the papers” where the facts are not in dispute, where there are no issues of credit to resolve and where the only issue to be determined is whether a protection order is necessary or desirable to protect the aggrieved from domestic violence under s 37(2) DFVPA. Where however there is a contest on the facts or where issues of credit will be relevant to making findings of fact, it will be fraught with risk to determine an application based upon the parties’ materials and oral submissions alone and without sworn evidence. 

12. [74]
    In OSE v HAN [2020] QDC 309, Judge Byrne KC at [52] expressed the view that in assessing whether a basis for summary dismissal is demonstrated, the level of satisfaction required in the criminal jurisdiction should be applied.  His Honour articulated that level of satisfaction as follows:

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 convictWhile I have some reservations about his Honour’s reference to a principle of the criminal law in the context of civil proceedings created by the Act, that is a distinction in approach which probably does not amount to a difference.  The criminal standard is probably a good reference point for Courts more familiar with the criminal law to appreciate the care which must be taken in summarily dismissing proceedings where there are material disputed issues of fact and how to approach assessing that matter. 

12. [75]
    Bearing in mind those authorities, I respectfully considered her Honour erred in summarily dismissing SC Wylie’s application. 
13. [76]
    First, there was affidavit material from the aggrieved and the aggrieved’s mother alleging three acts of domestic violence which her Honour identified. Her Honour should have declined to consider the application for summary dismissal until the evidence before her was tested at trial.   The problems with her Honour’s approach are typified in these comments:

But I believe that the material provided by the respondent is far more expansive that that of the aggrieved. When reading the comments of the aggrieved made in text messages, I find that no Court would be satisfied that she is in fear for her safety because of the robust way with which she continues her often abusive conversations with AMN

12. [77]
    While an experienced judge who has read affidavit material in advance of a trial might think it unlikely that cross examination will be persuasive, that is different from adopting that position as a basis to dismiss an application without having seen evidence tested at all.  Her Honour’s reasons were redolent of the kind of conclusions a court might reach after seeing the witnesses cross examined, except that they had not been cross examined.
13. [78]
    Second, her Honour erred in placing weight on the fact that the respondent was a serving police officer when deciding to dismiss the application.  Her Honour stated, “I think any application involving a serving police officer is something that needs to be addressed quickly.”  While achieving an expeditious result is important, it should not result in improperly depriving the other party of their opportunity for a fair determination of the application. 
14. [79]
    Third, her Honour initiated the dismissal of the application of her own volition.  It was not urged on her by the respondent.  While a Court may decide that a proceeding is an abuse of process without either party raising the point, a Court in that circumstance ought to proceed with particular circumspection.  Her Honour then brought the matter on for summary determination on one day’s notice.   No party would be permitted to bring on such a fundamental application on one day’s notice except in exceptional circumstances.  The Court should not have done so.  It was unfair to deal with the matter in that short time frame.   It is unlikely the respondent was able to advance a properly developed argument against summary dismissal in that short time frame.  I think that was a particular concern in relation to her Honour’ summary determination that the plaintiff could not make out that a protection order was necessary or desirable as required by s. 37(1)(c).
15. [80]
    Not only was summary dismissal not open on the evidence before her Honour, but the procedure adopted by her Honour failed to accord procedural fairness to the respondent in the determination of the question.
16. [81]
    The respondent conceded the appeal on this ground.  He did so rightly.