RQM v PAK[2023] QDC 53

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 24 August 2022 in the Redcliffe Magistrates Court a protection order was made naming the respondent as the aggrieved, against the appellant (the protection order).  The appellant challenges the making of the order on grounds which are summarised as contentions that the appellant, who was self-represented, was given an inadequate opportunity to conduct his case; the decision of the Magistrate was infected by bias in his conduct of the hearing; the Magistrate erred in failing to consider and apply s 78 of the Domestic and Family Violence Protection Act 2012 (Qld) (“the Act”) concerning an order of the Family Court made on 26 July 2022; and, generally, that the appellant was not permitted to “conduct his case” on the basis he was unrepresented.  This last contention relates to the fact that the self-represented appellant was denied the opportunity of cross-examining the respondent in person, pursuant to an order of a previous Magistrate, on 27 July 2022, pursuant to the provisions of s 151 of the Act.
2. [2]
   The notice of appeal was filed on 20 September 2022, following which the appellant’s outline of argument was filed on 17 October 2022 and the respondent’s on 21 November 2022.  The matter came on for hearing on 27 March 2023, however on an application by the respondent it was adjourned for hearing to 30 March.^[1]

The nature of an appeal under the DFVPA

3. [3]
   Appeals against orders such as the present are governed by s 168 of the Act:

“168 Hearing procedures

3. (1)
    An appeal must be decided on the evidence and proceedings before the court that made the decision being appealed.

3. (2)
    However, the appellate court may order that the appeal be heard afresh, in whole or part.

169 Powers of appellate court

3. (1)
    In deciding an appeal, the appellate court may—

1. (a)
    confirm the decision appealed against; or

2. (b)
    vary the decision appealed against; or

3. (c)
    set aside the decision and substitute another decision; or

4. (d)
    set aside the decision appealed against and remit the matter to the court that made the decision.

3. (2)
    The decision of the appellate court upon an appeal shall be final and conclusive.”^[2]

4. [4]
   The nature of the appeal is by way of rehearing, rather than an appeal in the strict sense; see GKE v EUT.^[3] In such an appeal, the powers of the appellate court are exercisable only when the appellant can demonstrate that, having regard to all of the evidence before the appellate court, the order that is the subject of the appeal is the result of a legal, factual or discretionary error.^[4]  The appeal requires a real review of the trial and the lower court’s reasons^[5] and for this court’s own determination to be made of the relevant facts and issues from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.^[6] I am required, where the facts are in dispute, to review the evidence, weigh conflicting evidence, and draw my own conclusions.^[7] However this appeal is in some ways more straightforward than those where the arguments do relate to factual differences; in this case the complained-of errors are said to be largely procedural.

The decision

First hearing date

5. [5]
   The original listed hearing date for the matter was 27 July 2022.  The proceedings in court on that occasion occupied considerable time, however there was not a hearing of the matter as such.  What occurred – sensibly, with respect - was an extensive discussion between the Magistrate, the appellant and the respondent’s legal representative, it seems largely with the intention of attempting to achieve a resolution.  The respondent was applying for a domestic violence protection order, and at the same time was a respondent to a similar cross-application by the appellant.  Early in the proceedings the respondent’s legal representative indicated that the respondent was open to an order being made against her, without admission;^[8] that was confirmed on the second hearing day.^[9]
6. [6]
   The ensuing discussion on the first hearing day was an attempt by the Magistrate to reach a resolution of the outstanding matter of the respondent’s application for a protection order in her favour (as aggrieved) against the appellant.  This did not eventually proceed to a hearing and the conclusion was that the matter was adjourned for hearing before a different Magistrate, to 24 August 2022.^[10]

7. [7]
   During the proceedings on the first day there was, however, reasonably extensive discussion of the requirements of the Act that protected witnesses (s 150 of the Act) such as the respondent (where, in relation to her application, she was the aggrieved) were only subject to cross-examination in person by the unrepresented opponent in accordance with the guidelines in s 151(2) and (4) of the Act. 
8. [8]
   The relevant provisions are as follows:

150 Protected witnesses

(1) This section applies when any of the following persons (each a protected witness) is to give, or is giving, evidence in a proceeding under this Act—

(a) the aggrieved;

(b) a child;

(c) a relative or associate of the aggrieved who is named in the application that relates to the proceeding.

(2) The court must consider whether to make any of the following orders—

(a) that the protected witness give evidence outside the courtroom and the evidence be transmitted to the courtroom by means of an audio visual link;

(b) that the protected witness give evidence outside the courtroom and an audio visual record of the evidence be made and replayed in the courtroom;

(c) while the protected witness is giving evidence, that a screen, one-way glass or other thing be placed so the protected witness can not see the respondent;

(d) while the protected witness is giving evidence, that the respondent be held in a room apart from the courtroom and the evidence be transmitted to that room by means of an audio visual link;

(e) that the protected witness be accompanied by a person approved by the court for the purpose of providing emotional support;

(f) if the protected witness has a physical or mental disability—that the protected witness gives evidence in a particular way specified by the court that will, in the court’s opinion, minimise the protected witness’s distress;

(g) any other alternative arrangement the court considers appropriate.

(3) However, if the protected witness is a child, the court must make at least 1 of the orders mentioned in subsection (2)(a), (b), (c) or (d).

(4) Any place outside the courtroom where a protected witness is permitted to give evidence under this section is taken to be part of the courtroom while the witness is there for the purpose of giving evidence.

151 Restriction on cross-examination in person

(1) This section applies if—

(a) a protected witness gives evidence in a proceeding under this Act; and

(b) a respondent in the proceeding wishes to cross-examine the protected witness; and

(c) the respondent is not represented by a lawyer.

(2) The court, on its own initiative or on the application of a party to the proceeding, may order that the respondent may not cross-examine the protected witness in person if the court is satisfied that the cross-examination is likely to cause the protected witness to—

(a) suffer emotional harm or distress; or

(b) be so intimidated as to be disadvantaged as a witness.

(3) However, if the protected witness is a child, the court must make an order that the respondent may not cross-examine the protected witness in person.

(4) If the court makes an order under this section, the court must—

(a) inform the respondent that the respondent may not cross-examine the protected witness in person; and

(b) require the respondent to advise the court by a stated date or time whether the respondent—

(i) has arranged for a lawyer to act for the respondent; or

(ii) has arranged for a lawyer to act for the respondent for cross-examination of the protected witness; or

(iii) has decided not to cross-examine the protected witness.

9. [9]
   The Magistrate first discussed this in the (possibly inapt) shorthand description “you would be estopped from cross-examining the other party”.^[11]  The appellant immediately referred to s 150, which he was apparently aware of.^[12]  The Magistrate thereupon indicated a finding against cross-examination in person was likely, without making such a finding.^[13] The Magistrate did indicate that, in his experience, where there were cross-applications by each party, both parties ended up having an order made.^[14]
10. [10]
    The Magistrate explicitly enquired of the respondent’s representative whether an order was sought under s 151(2) to prevent cross-examination in person where the respondent was likely to suffer emotional harm or distress or be so intimidated as to be disadvantaged as a witness.^[15] The respondent’s representative indicated there was to be such an application.  The Magistrate indicated that, if such an order was made, the difficulty with proceeding that day was that the (self-represented) appellant would not be able to cross-examine the respondent.^[16] The appellant however points out, and the respondent concedes, that although the application was foreshadowed it was never actually made.^[17] This is a significant problem in terms of procedural fairness; normally there would be an application supported by material and submissions, and an opportunity for the respondent to respond before a ruling is made. It is unfortunate that the Magistrate, when the respondent queried whether an application had been made (at that stage it had not been), responded that the application (and apparently its success) “would probably follow as night follows day…”.^[18]
11. [11]
    The Magistrate later concluded that it was appropriate to order that the respondent only be cross-examined by a lawyer.^[19] The appellant indicated he had not been advised of the relevant application prior to appearing in court that day (although as noted above he was evidently aware of s 150), however the Magistrate indicated that from his observations of the parties in court, it was clear that the respondent was intimidated.^[20]  The Magistrate also noted that, during the by then fairly lengthy hearing, the appellant had been making submissions before him and he had taken that into account in relation to the exercise of his discretion.^[21]
12. [12]
    The appellant eventually raised the possibility that the Magistrate might be biased.^[22]  However immediately after that, without entering into an application for recusal, the Magistrate arranged for the adjourned case to come back on for hearing before a different judicial officer.^[23] He required the appellant to inform the court as to his representation for cross examining the respondent by the 17^th August, one week before the resumed hearing, consistently with s 151(4).^[24]

Second hearing date

13. [13]
    On the second hearing date, 24 August 2022, a different magistrate considered the matter.  The appellant was still self-represented, and the respondent was represented by different counsel on that occasion.  The Magistrate almost immediately indicated that the appellant could not cross-examine the aggrieved because he was not legally represented.^[25]  The appellant immediately tried to press this matter but was told he could not do so.^[26]  He was told that the previous Magistrate had given that indication.  The transcript records that the first Magistrate did in fact reach a conclusion on the issue as outlined above.
14. [14]
    The respondent conceded to an order without admissions on normal good behaviour conditions.^[27]  The appellant wished a further condition of that order, namely, not to come to the appellant’s property, however the Magistrate declined to do so in circumstances where in the previous ten months or so there had been no breaches by the respondent of a temporary order.^[28] 
15. [15]
    As to the respondent’s application for an order against the appellant, the Magistrate concluded that the appellant had not taken the opportunity during the adjournment of the matter to retain lawyers for the purpose of being able to have the respondent cross-examined; he had therefore not been able to cross-examine, that is, challenge, the respondent’s material; and in those circumstances, her application being supported by material which was not challenged, the order should be made.^[29] As set out below, this refusal to, in effect, hear the matter (although the Magistrate had read the appellant’s affidavit^[30]) – including, for example by: permitting the respondent’s other witness to be cross examined; allowing the appellant give sworn evidence denying the respondent’s allegations, despite the indication from the respondent’s representative that she did not wish to cross examine the appellant; and permitting the appellant to make submissions – as the respondent’s counsel properly concedes, does amount to a breach of the rules of natural justice in the sense of failure to conduct a fair hearing, and on that ground the appeal must succeed. However other aspects of the matter and the arguments pressed are set out below, for completeness and clarity.

The grounds of appeal

Disallowance from conducting his case because unrepresented (Ground 3)

First Magistrate’s Disallowance of Personal Cross Examination

16. [16]
    The appellant complains that he was not able to personally cross-examine the respondent and that the first Magistrate reached a wrong conclusion on this issue.  In this regard he refers to AJC v Constable Kellie-Ann Gijsberten & Ors.^[31] This was a case where, amongst other things, the appeal was successful on the basis of the Magistrate concluding under s 151 that the self-represented respondent to a contested application should not be permitted to cross-examine the aggrieved.  The issue in that case was largely that in doing so the Magistrate did not permit the appellant procedural fairness; see in particular paragraph [77].  This was, with respect, clear on the material in that case.  The judgment records at [14] the peremptory statement by the Magistrate “I run this Court according to law and it’s the case you won’t be able to cross-examine.”  There were questions as to whether the Magistrate considered the elements of s 151 at all, much less giving the appellant a proper opportunity to be heard thereon.
17. [17]
    It is unsurprising in those circumstances that the relevant conclusion was reached.  Further, the provisions of s 151(4) were not complied with.  Where the court makes an order under the section, it must inform the respondent thereof and require him to advise by a stated time whether he has arranged for a lawyer to conduct the cross-examination or alternatively has decided not to cross-examine the protected witness.  This was not addressed in AJC.  As set out above, it was addressed in the present case, as were the elements of s 151.  Indeed, the adjournment of the hearing from 27 July to 24 August, before a different Magistrate, seems to have been largely driven by the desire to give the appellant his rights under s 151(4), which he was unfortunately unable to avail himself of.
18. [18]
    In the circumstances, on this particular ground of appeal, the present case is very different from AJC. It is true that the second Magistrate did not analyse the question of the discretion to be exercised under s 151and in fact his comments were somewhat peremptory, as in AJC. However as outlined above and conceded by the appellant,^[32] the first Magistrate had already made an order on the issue; he had, arguably, appropriately analysed the question and formed a conclusion on the basis of the appearance of the parties in court. He then ruled on the matter.^[33] The second Magistrate proceeded on the basis that the earlier ruling had been made and was binding. There is nothing before this court to suggest this was an incorrect approach.
19. [19]
    The appellant argues that the first Magistrate reached a wrong conclusion on this issue.  As outlined above, he took into account the demeanour of the parties in court during lengthy submissions.  The rules of evidence do not apply.^[34]  The Magistrate was able to inform himself in any way he considered appropriate and indicated in court the way in which he was doing so, consistently with the statute.  The fact-finding process is informed by the way in which it is underlined under s 145(3): to remove any doubt, that section declares that the court need not have the personal evidence of the aggrieved before making a domestic violence order.  That approach similarly at least informs – if not binds - the procedure in reaching a conclusion as to s 151. S 151(2) gives the court a specific power to make such an order on its own initiative.
20. [20]
    The appellant argues that the Magistrate’s assessment that the respondent was intimidated was not in the context of cross-examination, as referred to in s 151(2).  In my view, however, this does not erode the value of the Magistrate’s observations in reaching a satisfaction as to likelihood of emotional harm or distress or intimidation causing disadvantage. The section does not require the Magistrate to embark upon cross examination before making an order.
21. [21]
    The appellant also argues that in reaching the conclusion in the way he did, the Magistrate denied the appellant procedural fairness.^[35]  As the above outline of the proceedings indicates, although the Magistrate determined the respondent’s (foreshadowed) application as the proceedings unfolded, in my view the appellant was given a measure of procedural fairness which was at least arguably sufficient during that process.  Once the order was foreshadowed he argued that the relevant conclusion should not be reached, and the first Magistrate explained how he was reaching his conclusion, on what observations and why, and he did express the conclusion. However the process was quite disjointed and informal; there was no calling on the respondent’s counsel to properly make and support the application – or, alternatively, an express statement that the order was being made on the court’s own initiative; no discrete process of identifying the relevant material said to support it; and no calling on the respondent for his response. Thus the sufficiency of the procedural fairness is at least debatable.
22. [22]
    Perhaps the most significant flaw in the process, as conceded by the respondent, was that there was no application actually made. Whether this is in truth a fatal flaw – in the sense of appellable error vitiating the following conclusions - is arguable; s 151 provides that an order may be made on the Magistrate’s own initiative, and the Magistrate undoubtedly indicated to the appellant he was considering it. On the material before this court, although the way in which the conclusion under s 151 was reached was not perfect, I would not allow the appeal on this basis or set aside the first Magistrate’s order. However, for reasons which follow, this is not the determinative issue in this case.

First Magistrate’s Alleged Bias

23. [23]
    The appellant also complains in relation to this ground that the first Magistrate was biased.  He points to a number of things:

    1. (a)
       Commentary by the Magistrate early in the proceedings which was indicative, he argues, of a preformed opinion of the likely outcome of the case.  There were comments such as

“I just can’t see how anyone’s going to avoid an order made at the moment… looking at the pleadings as they are at the moment, I don’t know who’s hopping for the miracle, but I can’t see where it is on the pages as yet.”^[36] 

This was robust language, possibly infelicitous, however not of itself demonstrative of bias; in any case the Magistrate did not ultimately hear the application, so any potential bias did not bear on any issue before this court.

2. (b)
   The Magistrate’s colloquial description of the appellant’s perspective of the proceedings that, in effect, the respondent wore a “black hat”, and the appellant wore a “white hat”.  In my view this metaphor was, as the Magistrate explained, simply a shorthand way of saying that the appellant’s case was that the respondent’s allegations were untrue and all of them ought to be rejected; conversely he, the appellant was blameless.  This does not, in my view, demonstrate any degree of bias.
3. (c)
   The Magistrate’s observation “that would be a neat trick to pull off, by the way”.^[37]  This responded to the appellant’s statement that he was contesting every allegation made against him.  The appellant indicated his concern with that expression and was told “no decisions been made.”^[38]  The appellant argues this is inconsistent with the statutory test in s 37(1) of the Act to the effect that the jurisdiction to make a protection order only arises where the court is satisfied, relevantly, that the domestic violence has occurred, and the protection order is necessary or desirable to protect the aggrieved from domestic violence.  However it seems to fall in the same category as the commentary referred to above; the first Magistrate did not hear the application.
4. (d)
   The Magistrate’s observation as to the probability of an order being made.^[39]  The appellant refers to Charisteas v Charisteas^[40] in this context, relevantly for the test as to bias where a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.  There are two distinct steps: firstly, a finding that a matter which might lead a judge to decide a case other than on its legal and factual merits exists.  Secondly, a finding of a “logical connection” between that matter and the feared departure.  Charisteas, of course, was a much clearer case where the trial judge, whilst seized of the matter, had socialised with the barrister acting for one of the parties.  Again, in any case, the first Magistrate did not hear the application.

24. [24]
    The appellant also submits that, if successful on the question of bias on behalf of the first Magistrate, the order prohibiting cross-examination was a nullity. This is doubtful, but for reasons discussed below a conclusion on that issue is not necessary.

Second Hearing Day

25. [25]
    As to the second hearing day, the appellant firstly complains that it was affected by the earlier (allegedly incorrect) conclusion to forbid cross-examination by the self-represented appellant.
26. [26]
    Further the appellant complains that the Magistrate on that occasion had read the material on the file and, he says, come to a conclusion that orders should be made against both parties.  He argues that the Magistrate had a pre-formed opinion that the respondent’s material was not contested, in the absence of the ability of the appellant to cross-examine her and where, despite being given an opportunity, the appellant did not arrange a lawyer to cross-examine the respondent or notify the court of the arrangements in that regard.
27. [27]
    Unfortunately as correctly conceded by the respondent, the second Magistrate wrongly refused to permit the appellant to contest the application in any way; even if cross examination of the aggrieved were not possible, the appellant should have been permitted to cross examine the respondent’s other witness and give or call evidence himself or to make submissions. Procedural fairness is necessary in these proceedings.^[41] The making of an order has been described as a serious step.^[42] It was not to the point that the respondent’s counsel did not require the appellant to be cross examined; he was entitled to give evidence and otherwise contest the application and was prevented from doing so.
28. [28]
    The lack of procedural fairness on that occasion is a basic flaw in the proceedings such that the result cannot stand.^[43]
29. [29]
    The appellant also complains that s 78 of the Act compels regard to be had to Family Court orders, and this was not done. However as the respondent points out, the protection order did not concern the parties’ child, and thus s 78 does not invalidate the order.

Conclusion

30. [30]
    The second hearing lacked procedural fairness as outlined, and thus the order cannot stand. It must be set aside and the matter remitted to the Magistrates court at Redcliffe.
31. [31]
    I should note the following matters in the context of having analysed the somewhat fraught proceedings outlined above. Busy Magistrates are under pressure when their courts have crowded lists, in a variety of jurisdictions, on a daily basis. They understandably and appropriately may wish to dispose of as many matters, in the most efficient way, as is reasonably possible. Such a desire is consistent with r 5 of the Domestic and Family Violence Protection Rules 2014 (“the Rules”).
32. [32]
    This leads, however, to occasional, perhaps unintentional, cutting of corners in the kinds of ways seen in this case; this may be particularly understandable when one or more parties are self-represented. However in contested domestic violence order applications procedural fairness is essential; even if it takes a little longer, it is much quicker for the system overall than successful appeals. The decided cases referred to above show the kinds of problems which arise somewhat repetitively.^[44] Thus the following guidelines are apposite, from this and other cases:

    1. (a)
       Where there is an application for, or consideration of, an order under s 151 that a self-represented respondent not be permitted to personally cross examine an aggrieved, a number of steps are necessary

1. –The application must be made, not just foreshadowed; and if the order is being considered on the court’s own initiative, that also should be expressly stated

1. –The supporting materials should be identified

1. –The respondent should be given the opportunity to make submissions or possibly point to aspects of the evidence that might be relevant

1. –The court should reach an express conclusion on the issue, addressing the factors in s 151(2) of the Act

1. –The consequences in s 151(4) must then be addressed.

2. (b)
   Hearings of applications, even following an order under s 151 that the respondent may not personally cross examine the aggrieved, must be conducted according to procedural fairness. At least the architecture suggested in DMO v RPD at [10] would be apposite: the applicant/aggrieved would give and/or call evidence or their written or other evidence would be at least identified, the non-aggrieved witnesses would give evidence and be cross examined, the respondent would give and/or call evidence and be cross examined and exhibits admitted into evidence in the conventional way. Each party would then have the right to a closing address.^[45]
3. (c)
   Additionally, the guidelines referred to in AJC at [58] and [59] as to self-represented litigants are helpful:

“[A] magistrate, despite busy lists and the need for expedition, must ensure that a self-represented litigant is not denied a fair hearing through ignorance of the basic procedures of the court and of the rules with which he must comply in presenting his case. It is not for a magistrate to advise a litigant on the law or his rights. However, he or she must ensure that a self-represented litigant at least understands that there are rules under which parties must proceed, and ensure that he or she is not deprived of a fair hearing by virtue of a failure to bring to that party’s attention some of the more obvious rules which are second nature to legal practitioners and those who regularly appear in the courts. The court does have an obligation to protect a litigant in person from any apparent procedural disadvantages that such a party may suffer simply through ignorance of particular procedural rules.”^[46]

Further:

1. (i)
   A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.
2. (ii)
   A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witnesses.
3. (iii)
   A judge should explain to the litigant in person any procedures relevant to the litigation.
4. (iv)
   A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation.
5. (v)
   If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course.
6. (vi)
   A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise.
7. (vii)
   If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights. 
8. (viii)
   A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott (1994) 68 ALJR 509 at 510.
9. (ix)
   Where the interests of justice and the circumstances of the case require it, a judge may:

• draw attention to the law applied by the Court in determining issues before it;

• question witnesses;

• identify applications or submissions which ought to be put to the Court;

• suggest procedural steps that may be taken by a party;

• clarify the particulars of the orders sought by a litigant in person or the bases for such orders.^[47]

4. (d)
   In the context of the above, the power to make appropriate directions for a proceeding under s 144 of the Act and rr 22 and 23 of the Rules should be borne in mind. In the present case, for example, if the first Magistrate, having been apprised of the application under s 151, had made directions for its conduct and adjourned the hearing for that purpose, fewer problems may have emerged. Directions could also have been made as to the eventual conduct of the hearing, which would have left the self-represented respondent in no doubt as to his position. A temporary order would have remained in effect during the interim, so that there was little harm to be done by the adjournment.

33. [33]
    The above is not intended to be and is hopefully not seen as a counsel of perfection. Rather the intention is to assist clarity of thinking to produce organised and orderly steps to finally resolve contentious matters as efficiently as possible.

Orders

34. [34]
    The respondent seeks a temporary protection order in the interim until a new hearing. This court cannot make one as it is not within the relevant definition in s 6 of the Act. Thus it will be arranged that the matter can be mentioned in the Redcliffe Magistrates Court immediately upon remittal.
35. [35]
    The orders will be

1. Appeal allowed;
2. The protection order made in the Redcliffe Magistrates Court on 24 August 2022 is set aside;
3. The application for a domestic violence order by PAK be remitted to the Redcliffe Magistrates Court for rehearing before a different magistrate.
4. The matter to be mentioned in the Redcliffe Magistrates Court on 5 April 2023.

To clarify the position for the benefit of the parties, the order preventing the respondent (aggrieved) from being personally cross examined, as set out above, stands; it continues in effect for further hearing of the application. I am not satisfied it was wrongly made, and in any case as I have mentioned, resolution of that issue was not necessary for resolution of the appeal. It appears that there is jurisdiction for that order for to be re-opened on the application of the appellant if that were found to be appropriate, although the jurisdiction is limited to factual errors.^[48]