XAZ v OBQ[2023] QDC 98

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant, XAZ, appeals against a decision of a Magistrate made on 23 August 2021 pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (the DV Act). By the decision, the Magistrate made a domestic violence protection order against XAZ for the benefit of the respondent, OBQ. The basis of the order centred on the social media activity of XAZ between December 2019 and February 2021.
2. [2]
   On the appeal, both XAZ and OBQ had legal representation. XAZ was represented by counsel. Initially OBQ was represented by a solicitor with Russo Lawyers but when court resumed in the afternoon, OBQ was represented by counsel. In the proceedings below, OBQ was self-represented and XAZ was represented by a solicitor with Vidi Legal.

Nature of appeal

3. [3]
   An appeal against a decision made under the DV Act is brought pursuant to s 164 of the DV Act. Section 164 permits an appeal to be brought by a person aggrieved by any of the following decisions of a court:

“(a) a decision to make a domestic violence order;

1. (b)
   a decision to vary, or refuse to vary, a domestic violence order;
2. (c)
   a decision to refuse to make a protection order;
3. (d)
   if the person sought a temporary protection order in a proceeding under this Act – a decision to refuse to make the order.”

4. [4]
   The appeal is started by filing a notice of appeal with the registrar of the appellate court. The notice must be filed within 28 days after the day on which the decision is made but the appellate court may at any time extend that period.^[1]
5. [5]
   Section 168(1) of the DV Act provides that the appeal “must be decided on the evidence and proceedings before the court that made the decision being appealed.” However, s 168(2) provides that “the appellate court may order that the appeal be heard afresh, in whole or in part.”
6. [6]
   In deciding the appeal, under s 169 the court 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.
7. [7]
   Although the DV Act does not specifically state the nature of the appeal, r 765(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), which applies by virtue of s 142(2) of the DV Act and r 783 and r 785 of the UCPR, has the effect that the appeal is by way of rehearing; though r 766 permits the court, on special grounds, to receive further evidence as to questions of fact, either orally in court, by affidavit or in another way.
8. [8]
   A re-hearing requires the court to conduct a real review of the evidence at first instance and of the Magistrate’s reasons for decision, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.^[2] In Mbuzi v Torcetti, Keane JA described the task as:

“On such an appeal the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions…”^[3]

Preliminary matters

9. [9]
   The original notice of appeal signed by XAZ contained the date of 20 September 2021, but was date stamped by the court on 30 September 2021.
10. [10]
    An amended notice of appeal signed by the solicitors appointed to act on behalf of XAZ was filed on 11 April 2022. The amended notice was said to be ‘subject to leave’.
11. [11]
    In both the original and amended notices, XAZ sought a hearing de novo of the proceedings the subject of the appeal. The amended notice also sought, on the hearing of the appeal, leave to adduce fresh evidence.
12. [12]
    In the outline of argument filed in support of the amended notice of appeal it was acknowledged that leave would be required for both the bringing of the appeal and the filing of the amended notice of appeal, as both the original and amended notices were filed out of time.
13. [13]
    The outline summarised the fresh oral evidence sought to be adduced at the hearing. It was said the evidence of TSK would corroborate the evidence of XAZ that XAZ was not the author of online posts and content determined by the Magistrate to have been created and published by XAZ but rather the profiles were exclusively created and operated by him.
14. [14]
    The hearing was set down to commence on Monday, 18 July 2022. On the Thursday prior to the hearing, notice was given by the solicitors for XAZ of an application for the hearing of the appeal to be adjourned on the basis that XAZ was unwell with COVID-19.
15. [15]
    By the day of the hearing, the solicitor for XAZ sought to file affidavits by XAZ and TSK. Both affidavits had been sworn the day before, Sunday 17 July 2022. XAZ’s affidavit addressed the delay in the filing of the original notice of appeal and how XAZ became aware of TSK. The affidavit of TSK explained how he became aware of OBQ’s music and started following OBQ and confirmed that he was the creator of the content of the social media posts the subject of the Magistrate’s decision and that he was not acting at the direction of, or on behalf of, any person in creating the posts.
16. [16]
    Initially, on the day of the hearing of the appeal, counsel for XAZ sought for the matter to be adjourned. It was observed by the court that the health of XAZ had permitted the completion of an affidavit by XAZ the day before, raising a question as to whether XAZ was in a position where she could give evidence that day by video-link.
17. [17]
    At the commencement of the hearing the court indicated, and counsel for OBQ accepted, that at face value the affidavits sought to be tendered that day contained relevant evidence. Counsel for OBQ appeared to concede that he would not press his objection to the affidavits being received, subject to the deponents being available for cross-examination. The matter was stood down to enable instructions to be obtained from XAZ and the potential further witness.
18. [18]
    Subsequently, it was confirmed both deponents were available for cross-examination. The matter proceeded on that basis with orders being made for the fresh evidence to be received.
19. [19]
    It was not otherwise suggested, either in written submissions or at the hearing, that XAZ wished for the whole of the evidence to be heard afresh.

Evidence before the Magistrate

20. [20]
    In support of the original application for the making of a domestic violence order, OBQ filed an affidavit of himself sworn 31 May 2021 and an affidavit of LSH sworn 28 May 2021.
21. [21]
    XAZ filed no material in response to the original application.
22. [22]
    On the morning of the original hearing, like initially in this appeal, XAZ sought for the proceedings to be adjourned on medical grounds. No prior notice had been given to OBQ of the intended application.
23. [23]
    In discussions before the Magistrate, it became apparent that the attitude of XAZ, or those representing XAZ, was that the material of OBQ was inadequate to establish that it was XAZ who had been harassing OBQ.
24. [24]
    The application for an adjournment was refused and the Magistrate indicated an intention to proceed on the basis that XAZ could cross-examine OBQ and LSH, with the Magistrate indicating that she was happy to receive written submissions as to the insufficiency of the material to form a basis for the making of the order. The matter was stood down until 2:30 pm to enable XAZ’s lawyer to obtain instructions as to how they wished to proceed.
25. [25]
    The matter proceeded with the solicitor for XAZ cross-examining OBQ and LSH, and XAZ being called to give oral evidence and being cross-examined by the Magistrate.^[4]
26. [26]
    In support of the application for the making of a domestic violence order, OBQ relied upon online posts alleged to have been created by XAZ, or by someone at XAZ’s direction, under the Facebook profiles with the names, [redacted] and [redacted], and the Facebook page entitled, [redacted].
27. [27]
    OBQ gave evidence that he and XAZ commenced a relationship in January 2016. He stated that they lived together from June 2016 until he moved out on 27 April 2018. OBQ stated that he had become unhappy in the relationship and on 26 April 2018 told XAZ that he wanted to move out.  OBQ’s evidence was that his intention to end the relationship was not well received by XAZ and that XAZ’s parents became involved. OBQ said that once he had moved out XAZ commenced sending him numerous text messages which included photos and poetry.
28. [28]
    OBQ’s evidence was that in mid-June 2018 he changed his phone number and deactivated his Facebook account in an attempt to stop the messaging. OBQ said he remained off social media for nine months.
29. [29]
    In late December 2018, OBQ said he was contacted by his brother who lived in New Zealand who told him that XAZ had contacted him, and also his children, on Facebook enquiring about OBQ.
30. [30]
    In April 2019, OBQ said that he returned to social media and that he received a large volume of messages from XAZ which had been sent over the last nine months. He realised at that time he had not blocked XAZ from his Facebook Messenger account.
31. [31]
    OBQ said that in December 2019 he received a “friend request” from a TSK. OBQ said they communicated on a number of occasions over the following months. OBQ said that TSK had claimed to be a fan of OBQ’s music project, [redacted]. OBQ and TSK communicated on a number of occasions over the following months. OBQ said that TSK made enquiries as to where OBQ lived and the events he was planning to attend.
32. [32]
    OBQ said he started to become suspicious about the communications from TSK and whether there was a link between TSK and XAZ, or whether it was actually XAZ under a fake profile.
33. [33]
    Then, in July 2020, OBQ received an email from XAZ. The email expressed that OBQ was the only guy that she had “ever truly loved”. The email also informed OBQ of the death of XAZ’s father. OBQ did not respond to the email.
34. [34]
    OBQ said that on 13 August 2020 he spoke to his friend, LSH, over the phone about his suspicions. He said LSH told him that she had recently received a friend request from a TSK and also from XAZ’s main Facebook profile. OBQ said that LSH also told him that on XAZ’s main Facebook profile XAZ had TSK listed as her brother.
35. [35]
    OBQ said that following that discussion, he decided that TSK had links to XAZ. He said he was also aware that XAZ was an only child, so found it strange that TSK would be described as her brother. OBQ said that as a result he immediately deleted TSK off his Facebook profile and blocked him.
36. [36]
    He said he then noticed there were multiple profiles of the same person under the same name on Facebook who then tried adding him again and tried messaging him on Facebook Messenger after he deleted him. He said that on 14 August 2020, he received a message from TSK asking, “Hey do you still care about [XAZ]?” The message continued, “If you do why don’t you unblock her and all her friends and try and talk to her! if you don’t care then tell me why you won’t unblock her so I can pass on a message for her at least.” TSK added the following enquiries, “Do you care her father died?”, “you left stuff behind including a bike and microphone, and clothes” and, “the right thing to do is talk to her.”
37. [37]
    In October 2020, a Facebook page was set up using OBQ’s head placed on top of a cartoon body.  The Facebook page was named [redacted, which it said was a band. The best known songs were said to be, [redacted] and [redacted]. OBQ said the name was ridiculing his music project, [redacted], and the song titles had been changed to derogatory names.
38. [38]
    In that same month, OBQ said that some of his closest friends had been invited to “like” the page.  The request to his friends had been made under the Facebook profile, [redacted].
39. [39]
    In late October 2020, OBQ reported the page to the local police station and OBQ requested that the police contact XAZ and put a stop to, what OBQ described as, unwanted online stalking and harassment. He said the police tried to contact XAZ.
40. [40]
    In February 2021, OBQ said that he came across two photos of him on Facebook. The photos were publicly posted on the event page of a nightclub in Brisbane. Comments were made under the photos under the profile name, [redacted], which stated, “Mr hidey hole hiding in Brisbane like a coward in heat”, and “[redacted] Cowardly Cheater”. Screen captures of these photos were taken by OBQ’s friend, LSH.
41. [41]
    OBQ gave evidence that a domestic violence application was served on XAZ on 29 April 2021 and that on 3 May 2021 he noticed the profile, [redacted], along with TSK’s profile and the hate page, [redacted], had been deleted off Facebook. OBQ said that he had taken screenshots of some of the images before the material was deleted for the purpose of showing the duty lawyer.
42. [42]
    In cross-examination, it was put to OBQ that he never communicated to XAZ that he wanted her to stop messaging him. OBQ said that was untrue and that he had made it clear to XAZ over the phone and in messages that the relationship was over and that she needed to move on with her life.
43. [43]
    OBQ was asked about his music project and he said that not many people know about the project. He was asked about a fan base and he said, “Not really. It’s just close friends.” He was then asked as to whether there would be a fair share of critics of his creative work and he said, “No. As I said, it’s a very unknown music project.”
44. [44]
    LSH, who also affirmed an affidavit in the proceedings, confirmed that she had known OBQ since 2011 and that they had been friends since. She said they had reconnected when OBQ moved back to Brisbane in April 2020.
45. [45]
    LSH said she received a friend request from a TSK via Facebook in August 2020. She said she noticed that he was a mutual friend with OBQ and said that OBQ had told her he was a guy who was a fan of his music. LSH said she messaged TSK to ask why he wished to add her as she did not know him. She said he told her that “he was trying to add cool goth people as friends.” She said she replied, “I don’t add people I haven’t met before.” She said that she did not accept his friend request.
46. [46]
    LSH said that she received a phone call from OBQ in August 2020 saying that his ex-girlfriend was trying to add his friends on Facebook. She said that OBQ was very distressed about this. She said that OBQ said not to add her or make any contact with her. OBQ told her she would likely go by the following names, [redacted] or [redacted].
47. [47]
    LSH gave evidence that “a bit later in August 2020” she received a friend request from a [redacted], who she said looked like Luke’s ex-girlfriend. She said she noticed that she had TSK listed as her brother on Facebook. She told Luke about this.
48. [48]
    LSH then said in February 2021 she received a friend request on Instagram from an [redacted]. She said she noticed it was the same person who was trying to add her on Facebook.  She said she sent a message asking who she was and why was she trying to add her here and previously on Facebook. LSH said she never responded.
49. [49]
    In cross-examination it was put to her that it was not unusual for a friend request to be sent where people have a number of mutual followers.  It was commented that she and [redacted] shared 92 mutual followers.  LSH did not disagree that where there are mutual followers, a request may be made to add them.
50. [50]
    LSH said she received a message from OBQ in February 2021 regarding comments made on some photos on a night club event page. The comments were made by the Facebook profile, [redacted]. She said she took a screenshot of the photos and comments and then asked the event owner to take the photos down. The screenshots were attached to her affidavit. In addition to the comments noticed by OBQ, there were two additional comments made by the Facebook profile, [redacted]. The further comments were, “Mr hidey hole old and wasted” and “[redacted] hiding and cheating what a weakling”.
51. [51]
    XAZ was called and, in her examination-in-chief, she said that during the relationship OBQ had “controlled and brainwashed” her.  She described him as a “covert narcissist”.  She said he controlled the male friends she had in her life, the clothes she wore, what she could and could not do, and was very mentally and emotionally abusive.
52. [52]
    She said that the relationship ended by OBQ just taking off one night.
53. [53]
    She said that she initially sent him text messages and tried to get hold of him because, as she said, she was worried about him and completely blindsided with no talk with him or “answers or anything – or closure or anything”.  XAZ said that OBQ responded to those messages.  XAZ said she had not sent anything until a few months after the relationship ended because she did not have his phone number and that she had a new phone number.
54. [54]
    XAZ said that she did not message anymore because she had moved on with her life and she had got into a new relationship.
55. [55]
    When asked about the email sent in July 2020, XAZ said that her mum had sent the email.  She said the mother had gone through her computer but then added that she did not want her mother to send it.  She said her mum had wanted to tell him that her father had died.  She said her parents had treated him like a son-in-law. 
56. [56]
    XAZ confirmed that her occupation was a professionally paid model, makeup artist and content creator for social media.  She admitted that she had a big following on social media.
57. [57]
    She denied that in her dealings on social media, however, she had ever come across a TSK. It was put to her that TSK was listed as her brother on her Facebook profile. XAZ said she did not know him.
58. [58]
    She said she did not know him, nor did she know the Facebook profile, [redacted].  She said she had never seen the Facebook page, [redacted], until she had received the court documents.
59. [59]
    When asked by the Magistrate, in effect conducting the examination on behalf of OBQ, about the face on the site, [redacted], XAZ did not agree that it was the face of OBQ.
60. [60]
    The Magistrate asked about the fact that the posts had miraculously disappeared after XAZ was served with the domestic violence application.  She said she did not know who it was, that she had a lot of followers and fans, and said she was not sure if its someone else he knows.  She said, “I don’t know at all”.
61. [61]
    The Magistrate put to her that she was OBQ’s only ex-partner and only person who had sent nasty messages to him.  XAZ did not accept that and responded that OBQ had been with 10 other women at the time and was “known for having a lot of girlfriends”. 
62. [62]
    It was put to XAZ by the Magistrate that she had created the profile, [redacted], particularly to be malicious to him.  XAZ responded that she had never met the creator of the profile and that she had never heard of this until she received the case notes.
63. [63]
    XAZ denied she asked someone else to publish the material about him.

The Magistrate’s decision

64. [64]
    In giving her decision, the Magistrate briefly summarised the evidence of OBQ and XAZ.  The Magistrate referred to the unwanted continuing contact by XAZ of OBQ.  In particular, the Magistrate referred to the email received by OBQ from XAZ in July 2020 declaring her “undying love” and informing OBQ her father had died.
65. [65]
    The Magistrate referred to a malicious page, [redacted], which was created on Facebook in October 2020 using a photo of OBQ on a cartoon body.  The Magistrate described the hate page as “abusive and malicious”.  She said:

“It mocked and denigrated the artistic endeavours of [OBQ].  It mocked and insulted and degraded [OBQ].  A person calling themselves [redacted] on Facebook sent messages to close friends of [OBQ] inviting them to like the hate page.  This constituted abusive and stalking behaviour.”

66. [66]
    The Magistrate noted that in February 2021 malicious comments were made on two photos of OBQ by [redacted]. 
67. [67]
    The Magistrate referred to OBQ having filed his application for a protection order and that after XAZ was served with the application the profiles of TSK and [redacted] and the hate page [redacted] were deleted from Facebook.
68. [68]
    The Magistrate referred to the denials by XAZ of any involvement with the Facebook profiles, TSK or [redacted], or any involvement with [redacted].  She referred to XAZ’s denials of any involvement with the malicious comments made by [redacted] on the photos of OBQ.
69. [69]
    The Magistrate observed, “[XAZ] clearly has unresolved issues and emotions about [OBQ] and the break-up of their relationship.”  The Magistrate commented that her first piece of evidence to the court was “to condemn [OBQ] and describe him as abusive and a narcissist.”
70. [70]
    The Magistrate noted that it was submitted on behalf of XAZ that there was no evidence at all to connect XAZ with the stalking on Facebook and the posts which it was said might have been made by any person.
71. [71]
    The Magistrate confirmed that she was satisfied the evidence established a relevant relationship between the parties and stated that she did not accept the argument of XAZ.  She stated that she was satisfied on the balance of probabilities that XAZ either posted the material herself or asked someone else to post it.  The Magistrate referred to the nature of the comments, the timing of the comments, the clear intention to find information about OBQ, and the abuse of OBQ when viewed in light of XAZ’s prior conduct.  The Magistrate concluded that XAZ created these profiles herself or asked someone else to do so.
72. [72]
    The Magistrate stated that she was satisfied that each of the matters referred to constituted acts of domestic violence.
73. [73]
    The Magistrate found that she was satisfied it was necessary for the court to make a protection order to protect OBQ from further acts of domestic violence and that a permanent order in the same terms as the temporary order should be in place for a period of five years.

Grounds of appeal

74. [74]
    By her notice of appeal, XAZ sought leave to appeal, for the appeal to proceed as a hearing de novo, and for XAZ to be permitted to adduce fresh evidence. 
75. [75]
    XAZ sought orders that the appeal be allowed, the decision of the Magistrate be set aside, and XAZ awarded indemnity costs on a full indemnity basis on the strength of the fresh evidence that exonerates XAZ of any wrongdoing.
76. [76]
    The outline of argument made it clear that XAZ challenged the finding of domestic violence having occurred and that the order was necessary or desirable.
77. [77]
    In the written submissions filed subsequent to the hearing, notwithstanding the manner in which the matter proceeded, the submissions addressed the grant of leave to appeal and to adduce fresh evidence.

Evidence on appeal

Evidence of XAZ

78. [78]
    XAZ gave her evidence via video-link.  At the commencement of her cross- examination she was asked where she was and she said, “I’m just at a family residence…because I’m in isolation for COVID.”  XAZ was then asked, “Who’s with you right now?” and she responded, “Just my mum.” She was then asked, “And where’s your mother?” and she responded, “Just in another room.”  XAZ was asked why the background was blacked out and she said, “That’s just how the room’s set up.”  She explained that the room was set up with a black curtain behind her.
79. [79]
    In her affidavit, XAZ explained the delay in the filing of her original notice of appeal. She recalled being contacted in early September by her lawyers saying they would close the file unless they had further instructions.  She said she was overwhelmed and extremely distressed about the domestic violence order.
80. [80]
    She said that she decided to file a notice of appeal by herself with limited assistance and that there was then a delay caused by the need for the documents to be posted to the Brisbane registry.
81. [81]
    In cross-examination she was questioned about when she sent the documents to Brisbane.  She said she could not recall.  She said she thought it was “around December”.  She said she kept a record of having posted the documents.
82. [82]
    She said she sent an email to “the Queensland court to inform them” and she said they said that was fine. 
83. [83]
    XAZ was asked to produce the email to the court and also proof of post.  Subsequent to the hearing, an email was produced and a copy of a bank transaction.  The email produced was dated 29 October 2021 and was said to be directed to DC-Appeals.  The email produced is clearly not the email that was called for, given that the notice of appeal bears a court date stamp of 30 September 2021.  The email must relate to the forwarding of some other document.  By reference to the court file, the other document is likely to be the outline of argument which was filed on 4 November 2021.
84. [84]
    The extract from XAZ’s bank records provided as proof of post supports the notice of appeal having been posted on 21 September 2021.
85. [85]
    In her affidavit, XAZ explained her conversation with QUZ and the posts by somebody called TSK.  In cross-examination, XAZ was asked as to how the conversation with QUZ came about.  She referred to being with some friends at a social gathering. She said it was a gothic community event. She said the main friend she was speaking to was QUZ.
86. [86]
    XAZ said there was gossip going around about her. XAZ was asked as to who started the gossip.  XAZ was reminded that domestic violence proceedings are closed court and was asked whether it was she who started the gossip.  She said it could be several people but the one who informed her the most was QUZ.
87. [87]
    She was asked as to how QUZ knew about the proceedings and she responded that QUZ had asked her about it before.  When asked what QUZ first said, XAZ said that QUZ said to her, “I know you didn’t do it.” She said QUZ then said to her, “But I think I’ve got an idea of who it is.”
88. [88]
    XAZ was again asked as to how QUZ knew about it and it was only at that point that XAZ responded, “Because she’s my friend…So she, she knew that I had this put against me by my ex.”  It was put to her then that QUZ knew because she had told her and she said, “Yes.”
89. [89]
    In her affidavit, XAZ said that she specifically mentioned that she was found to have authored, or directed another to author, social media messages sent under the Facebook profile, TSK.  She said she recalled QUZ mentioning that the name sounded familiar, and she then proceeded to open Facebook and Instagram profiles of a person named TSK, who she knew to be a member of the gothic community.
90. [90]
    After the party, QUZ spoke to TSK and he had said he was willing to speak to her about his social media activity over the past few years.
91. [91]
    She said on 14 March 2022, she joined a Facebook Messenger call with QUZ and a person called TSK.  She said she now knows that person to be TSK.
92. [92]
    During the call, she said TSK admitted to being the author of the messages received by OBQ between December 2019 and August 2020.  She said that TSK said he created the Facebook page, [redacted], in retaliation after OBQ had blocked him.  She said that TSK had said he created the Facebook profile with the name, [redacted], to publicly harass OBQ.
93. [93]
    She said that at the end of the call, she asked him to send an email to confirm his admissions in writing.  The email sent by TSK was attached to XAZ’s affidavit.
94. [94]
    XAZ said that the first time she had ever contacted TSK was in that phone call on 14 March 2022.
95. [95]
    XAZ was asked about the Facebook Messenger call.  A copy of the call log was called for and was subsequently provided. The screenshot records a call between TSK, QUZ and another on 14 March at 10:07 pm. It also referred to a DHI who had also asked to join the call.  DHI did not give evidence.
96. [96]
    XAZ was asked to recall the conversation between TSK, QUZ and herself.  She said she thought that TSK spoke first and was basically saying he was sorry for what had happened.  She was asked as to his demeanour, and she described it as “remorseful”.  She said it sounded like someone who knew that they had done wrong.  She said he was, “like, shaking and emotionally distressed.”  She said he admitted to the [redacted] parody and to [redacted].
97. [97]
    She was questioned as to whether she knew what had inspired him to do this.  She said that he had just said something about OBQ had annoyed him. She said she did not know all the details and added, “it’s not something that I would think of ever doing.” XAZ was taken to the relevant paragraph of her affidavit and then said that “he had said something to do with being blocked or unfriending”.  She then added that she did not “know how much he [TSK] was annoyed, though.”
98. [98]
    She also accepted that she had sworn in her affidavit of being told that he had used the profile to publicly harass OBQ.
99. [99]
    XAZ was then asked as to whether she had ever heard the name TSK before March 2022. She said, “Not that I can recall.” She was reminded that she would have heard of his name in the court documents filed in the Magistrates Court. When asked as to what steps she took to try and find out who TSK was, she said mainly talking to friends in the gothic community. She admitted the main investigating she did was this year and accepted the statements that she really only put effort into finding him earlier this year. She said that once she did put effort in, she managed to track him down and she admitted, “He wasn’t very hard to find” because his real name is TSK, consistent with his profile. She said she had not put much effort in last year “because I was too upset and stressed, I think.” She admitted she did not instruct her lawyers to try and find him.
100. [100]
     XAZ was questioned as to when she knew OBQ had moved to Queensland and said that she had only found that out from the court documents. XAZ was then reminded of the July email where reference had been made to OBQ moving interstate. XAZ said, as she had said in answer to questions in the Magistrates Court, the email was sent by her mother. She was challenged as to her mother being the person who would have made some of the statements in the email. XAZ responded by saying that what her mother said in the email was largely false. She said the relationship was a rebound relationship for her and that she did not believe he was the love of her life at all.
101. [101]
     She maintained, despite the reference to “interstate” in the email sent in July 2020, that she did not know OBQ had moved interstate until she received the court documents, saying she was not sure of his whereabouts. She said he was going away to the outback for one week and he never came back. She said, “He did a runner, blindsided everyone.” When questioned again, XAZ said, “Well, permanently that’s what – yes, this is what you’re implying. Like, I wouldn’t be aware that he had moved to Queensland or anything.”
102. [102]
     XAZ was asked about her online presence and asked what she posts as part of her Instagram. XAZ responded, “I post, like, literally everything.” She was reminded of an answer given when asked in the Magistrates Court about TSK having been listed as her brother. In responding, she referred to her multiple public profiles and said she does not post about that but said that she posts “about all my other personal stuff.” When asked what she shared about OBQ after they broke up, she said, “Basically, just everything.” She was asked whether she posts it to the world at large or just her followers. She initially responded, just her followers but then said the public can see it as well.
103. [103]
     She was asked as to whether TSK was a follower of hers on any platforms before March of this year (2022) and she said she believed so. She accepted that he was probably a follower before May of last year (2021). She said that it did not occur to her to look at her followers in trying to identify TSK. She added that there would be about “20 Brendans” and that she had thousands of followers.
104. [104]
     She was then asked as to whether she was concerned by TSK’s behaviour. She said that what TSK did was not right and that she would not act like that herself at all. She admitted that TSK seemed “particularly fixated on her”. She described him as a “fanatical fan” and, when asked, admitted that it did give her the creeps. She was asked as to why she did not block him and said that she did not tend to block people.
105. [105]
     She said she had not seen TSK’s affidavit prior to her giving evidence. She admitted that she had the contact details for TSK since, as she described it, his confession.
106. [106]
     XAZ was asked about how many times she had communicated with TSK. She said she had communicated with him twice, the initial phone conversation in March 2022, and then another call asking him to contact her lawyer.
107. [107]
     She was then questioned regarding having asked her fans what to do with OBQ’s property he left behind. XAZ was asked the purpose of the post and she responded, “I think it was just to express it and get it off my chest.” XAZ was asked, express what, and she responded, “the concern, because he had messaged he was coming back in the future to collect his posters and belongings.”
108. [108]
     She was then asked, “So the concern was he’d retrieve his property or…?” She responded, “yes, because he had said – the last message you’ve sent me had said that he was coming back in the future to collect stuff.” It was then said to her, “What was the concern about him retrieving property that belonged to him?”
109. [109]
     At that point of questioning, an unidentified speaker was heard to say, “deny deny deny”. XAZ was then asked who else is there giving you – telling you what to say? Who just spoke? Can you please turn the camera around. Somebody just spoke. XAZ responded, “No one”. That same question was repeated a number of occasions and on each occasion, XAZ continued to respond that no one was there and denied that anyone was saying anything.
110. [110]
     It was then put to XAZ that she had lying and had lied through her evidence today. It was put to XAZ that she had solicited TSK to put himself up as a scape goat for her actions and that she had approached TSK as a fan to try and get out of this DVO. XAZ continued to deny all statements made.

Evidence of TSK

111. [111]
     TSK was then called to give evidence by video.
112. [112]
     In his affidavit, TSK stated that he was a fan of the musical endeavours of OBQ and had been so for approximately three years. He said that he had first discovered OBQ’s music when he had purchased a jewel case and compact disc, which he said was colloquially known as a CD case, from an op shop. He said the compact disc contained a number of songs written and sung by OBQ.
113. [113]
     TSK said that the jewel case contained a photograph of a striking gothic model and that he now knows that model to be XAZ, the appellant in these proceedings.
114. [114]
     He said, in his affidavit, that he was able to find the social media profiles of both XAZ and OBQ by way of social media handles printed on the insert of the jewel case. In cross-examination, he agreed that he was referring to the insert on the CD cover.
115. [115]
     He was taken to the CD cover and asked how he identified XAZ. He was reminded that the cover does not say she is a model and was asked to go to the CD and it was said, “It’s not on the CD, is it?” TSK simply responded, “I don’t know.” TSK then said that he “must have seen it on his [OBQ’s] Bandcamp page.”
116. [116]
     He said that he did find OBQ’s name under the social media information in the jewel case and that he connected with him. He said he connected with him about a year after he got the CD. He said the profile name was [redacted]. He said he connected with him first.
117. [117]
     He said that whilst he was a fan of XAZ, he did not recall ever directly communicating with XAZ either online or in person before early 2022, save for “liking” and “commenting” on her publicly accessible social media profile.
118. [118]
     TSK said that he did, however, directly contact OBQ about his music and his personal life of his own volition over the years. He said that direct contact was made using his Facebook profile named TSK. The messages between TSK and OBQ occurred between December 2019 and August 2020.
119. [119]
     TSK said that neither XAZ or anyone acting on her behalf had asked, directed or coerced him into sending any of the Facebook messages with OBQ.
120. [120]
     TSK said that the communication sent regarding questions as to whether he cared about XAZ anymore and of the need to unblock and speak to her arose as a result of being aware from XAZ’s social media posts of the breakdown in the relationship. He said that when OBQ blocked his access to his profile he was upset by the actions of OBQ and acted out accordingly.
121. [121]
     He admitted in his affidavit to having created the Facebook page, [redacted], and to having created the Facebook profile, [redacted]. He said that neither XAZ nor anyone acting on her behalf had asked, directed or coerced him into creating those Facebook profiles or pages.
122. [122]
     He said that in March 2022, he was contacted about his social media activity under his Facebook profile named TSK. He said that he had a conversation via the Facebook Messenger app and that in that conversation he admitted responsibility for the creation of the Facebook parody page, [redacted], and the Facebook profile, [redacted].
123. [123]
     In cross-examination, TSK was asked about the detail in the post, in particular the reference to specific items that OBQ had left behind at the house. TSK said that he could recall various items having been listed in the Instagram post by XAZ. When reminded that that post was some two years ago, TSK confirmed that he had a recollection of the items mentioned but when asked what else he could recall from the post he said, “Nothing else, sorry. It’s too long ago now.”
124. [124]
     TSK was asked about his conversation in which he gave relationship advice to OBQ. TSK accepted that he knew it was a mistake and that he should have minded his own business.
125. [125]
     TSK was then asked about the comments made on the two photographs. When TSK was questioned as to the words used, he simply responded, “Just some random crap, I guess.” When asked what it meant, TSK responded, “There is no meaning. It’s just random crap.”
126. [126]
     TSK was asked about the particular expression, “cowardly cheater”, and asked if OBQ is a cowardly cheater, to which TSK responded, “He is when people block social media.” He was asked as to how blocking a person on social media makes them a cheater. He was also asked whether he was attracted to OBQ. He responded, “definitely not I’m not into men.” The question was put to him again and on this occasion he answered, “Just got really angry. I wasn’t thinking straight at the time.”
127. [127]
     It was then put to TSK that he never wrote those comments. TSK responded, “I did write those comments.”  TSK denied that anyone had asked him to write comments using his profile. He denied that anybody had approached or promised him anything to give evidence for them.
128. [128]
     He was asked as to how many times he had spoken to XAZ and he said only once and he then said the lawyer had contacted him.
129. [129]
     TSK was then asked about the email sent in which he made the confessions. He was asked whether he was aware that he was confessing to potentially some serious crimes. TSK responded, “I didn’t give much thought to what’s going to happen.”
130. [130]
     TSK was asked about his statement in his confession that he had been a fan of the band since 2016. He responded, “I didn’t write that.” He said that he said it was 2019 or 2020. He repeated that he did not say 2016. He said, “Their CD wasn’t even made in 2016.”
131. [131]
     He then referred to having found the band on Bandcamp and of that having been before the CD. He said he found a song he liked on Bandcamp and then it took him sometime to find a physical copy. When TSK was challenged about this evidence, and asked if it were true, TSK responded, “I don’t know. It’s quite a while back. It wasn’t two years ago.  It was longer, much longer.” When further challenged, he said that he accepted he could have been mistaken. He said that he was “stricken with grief” and “can’t recall things correctly at times.”
132. [132]
     TSK was asked about being listed on profiles as the brother of XAZ.  He denied that he was ever on “her page as her brother” and denied that XAZ was ever on his page as his sibling; though he said he has “heaps of different people on there as siblings, not [XAZ].”
133. [133]
     TSK was asked about the [redacted] page being taken down and was asked if he took it down. He responded that Facebook took it down. TSK was asked if he received any notification, and he said, “they shutdown the account that was running it.” He said he received a Facebook notification but when questioned further simply said it was “a long time ago” and “whoever reported it got it took down.” He said it was only the one page that got deleted.
134. [134]
     TSK was asked about sending invitations out to like the page, before it was taken down. TSK said, “No one was invited at all.” He said only he and OBQ saw the page and it was just an angry response. When challenged further and told that numerous invites went out, including to close friends of OBQ, TSK said he could not recall.  He said, it might have been him but he could not recall. When he was challenged again, he responded, “Look, I don’t recall doing that but I have told you, I’ve had a lot of things happen in the past 11 months so my mind is not 100 per cent on a couple of things.”
135. [135]
     As the discussion continued, TSK then answered, “I just can’t recall cause of my memory loss.” He went on to explain that for the past 11 months he had not been able to recall many conversations since his mother passed away and that it affected his recollection from matters a few years ago. TSK was then asked about the contents of his affidavit being true and correct and the details of conversations in the affidavit. TSK responded that his affidavit is correct, the details of the messages are correct, and that he could recall making the page. He repeated that he could not recall sending out invitations to people. When asked about making a comment about the age of OBQ, he said he could have said that. When asked, “Did you?”, he responded, “I don’t know”.
136. [136]
     TSK was asked whether XAZ had promised him anything to help her out. He said, “There’s no promises or anything.” He added, “We’re not friends or anything, so no.”

Leave to appeal out of time

137. [137]
     As preliminary issues, OBQ maintained the objection to the grant of an extension of time to appeal and the receipt of the fresh evidence.
138. [138]
     In terms of the grant of an extension of time, given that XAZ was initially self-represented and that only a short extension of time is required in relation to the filing of the initial notice of appeal, it is appropriate that the time for filing the notice of appeal be extended to 30 September 2021.

Receipt of new evidence generally

139. [139]
     The receipt of the affidavits of XAZ and TSK raises a different question. The DV Act permits the appeal to be dealt with afresh. Presumably that entitles the court to receive evidence that was not given in the Magistrates Court. That was the process undertaken here. Given that the evidence involved a denial that XAZ had anything to do with the posts, if accepted, the evidence would have fundamentally changed the result.
140. [140]
     On the face of it, the evidence could have fulfilled the usual conditions for the grant of leave to adduce the fresh evidence required under the UCPR. It is well settled as to what constitutes ‘special grounds’ justifying the receipt of fresh evidence or a new trial.  In Pavlovic v Commissioner of Police,^[5] the court referred with approval to the test enunciated by Lord Denning in Ladd v Marshall as:

“In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.” ^[6]

141. [141]
     It remains to be considered whether it does have any of these capacities.

The credibility of the new evidence

142. [142]
     The starting point is whether any of the evidence is credible.
143. [143]
     In this respect the most alarming aspect of the evidence of XAZ is her denial towards the conclusion of her evidence that anyone else was present in the room from where she was giving her evidence, notwithstanding the very audible statements “deny, deny, deny” heard over the video-link.
144. [144]
     That denial is compounded by the instructions now given to her counsel. XAZ has now instructed her counsel that:

“My solicitor advised me that it was likely a short cross-examination based on the nature of the appeal. I advised my mother that it would be likely go an hour. She left the house for an hour and returned. Upon her return, she walked past the door, and I looked up. My mother paused, wondering why I had not spoken to her, and then moved on when she realised I was still giving evidence.  There was also another occasion where she walked past the door to stop one of our two cats entering the room. At no stage did anyone enter the room. I live in a tiny house and the walls are paper thin. My mother was waiting in the next room and could hear the phone was on speaker. She may have made comments about the hearing, but I did not pay attention as I was trying to focus on the task at hand – the cross-examination.”

145. [145]
     I simply do not accept the first denial in oral evidence, nor do I accept this version of the circumstances. It is quite different to the one given at the commencement of her evidence, and the clearly audible statements are inconsistent with a person merely making comments to herself.
146. [146]
     In addition, it was patently obvious that in the course of giving her evidence there was another person in the room to whom XAZ was looking for what appeared to be approval.
147. [147]
     All of this is compounded by XAZ’s evasive response to many questions, particularly questions which she clearly preferred not to answer, and her defensive stance when she thought an answer might harm her position. At the outset, when asked about the sending of messages to OBQ prior to 2020, she responded, “I do not recall. That is false.” When it was then put to XAZ, “So you didn’t send messages where you wrote a song, sorry, a poem and drew a picture”, she responded, “I don’t know what you’re talking about.”
148. [148]
     In being questioned in relation to the delay in filing the notice of appeal, to improve her position she was prepared to say she had sent an email to “the Queensland court…and they had said that was fine.”  That email was called to be produced and was not produced. There is no evidence that such an email was sent and certainly no evidence of such a statement being made by the court. It is highly improbably that such an answer was given.
149. [149]
     XAZ was slow to disclose how the discussion with QUZ had occurred, preferring initially to have it appear that there was unkind gossip about her arising from the proceedings; when, in fact, it was XAZ who started the discussion.
150. [150]
     It is apparent that XAZ remained angry at the behaviour of OBQ for having, as she described it in giving her evidence, done “a runner” and, as she said, “blindsid[ing] everyone.”
151. [151]
     Her continuing denials as to having any involvement in the making of the posts must be considered in light of the contents of the posts.
152. [152]
     I do not find TSK to be a reliable or credible witness either. He explained his inability to give answers to questions as arising from him suffering over the last 11 months extreme grief following the loss of his mother and that having led to memory loss and an inability to recall many conversations.
153. [153]
     Whether that is true or not, the fact is that TSK could not give answers to critical questions.  TSK could not recall whether he did or did not send friend requests to close friends of OBQ. No explanation was given that if he did, how he knew the close friends to whom to send the requests.
154. [154]
     The explanation offered by TSK as to his choice of words in the comments on the photos on the event page of the night club is simply unbelievable. I do not accept that someone who was angry at being “unfriended” on Facebook and who did not accept to being or having a desire to be in a relationship with that person would use the words, “cowardly cheater”. Nor do I accept that such a person would use the words, “[redacted] hiding and cheating what a weakling”, “Mr hidey hole hiding in Brisbane like a coward on heat” or “Mr hidey hole old and wasted”. Those are much more like the words XAZ would have used.
155. [155]
     In the end, I am satisfied on the balance of probabilities that XAZ either posted the material herself or asked someone else to post it for her.
156. [156]
     I consider the nature of the comments, the timing of the comments and the timing of their subsequent deletion, the nature of the enquiries made of OBQ in the posts by TSK, and the abuse of OBQ through the posts when viewed with XAZ’s response to the departure of OBQ, confirms my conclusion that XAZ had created the posts or asked someone to create them for her.
157. [157]
     The Magistrate was justified in concluding that there was sufficient evidence to establish the connection between XAZ and the posts.

Was there DV?

158. [158]
     The Magistrate concluded that the conduct as found by her constituted acts of domestic violence.  Domestic violence is defined in s 8 to mean:

“…behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that —

1. is physically or sexually abusive; or
2. is emotionally or psychologically abusive; or
3. is economically abusive; or
4. is threatening; or
5. is coercive; or
6. in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.”^[7]

159. [159]
     Emotionally or psychologically abusive is defined in s 11 as behaviour by a person towards another person that “torments, intimidates, harasses or is offensive to the other person.” The determination of that is a subjective matter; the relevant question being the effect of the behaviour on the person.
160. [160]
     In the present case, the Magistrate found the various social media posts made by or on behalf of XAZ constituted acts of domestic violence.
161. [161]
     There are the clear statements made on the photos of OBQ, the hate page entitled [redacted] which mocked OBQ’s artistic endeavours and the attempts to have OBQ’s friend “like” the hate page. I accept the evidence of OBQ, as stated before the Magistrate, as to the impact of those posts on him. The posts were clearly intended, and did, harass and intimidate OBQ.
162. [162]
     The actions continued over an extended period; the last of the posts having been made nearly three years after the relationship had ended. An element of persistence or repetition, as observed by McGill SC DCJ in GKE v EUT,^[8] can mean the conduct may be properly described as conduct which harasses someone.
163. [163]
     The conduct clearly falls within the definition of domestic violence.

Is an order necessary or desirable?

164. [164]
     The issue for the court then is whether a protection order was necessary or desirable to protect OBQ from domestic violence.
165. [165]
     In deciding this the court is required to consider the principles mentioned in s 4. Section 4 requires the DV Act to be administered “under the principle that the safety, protection and wellbeing of people who fear or experience domestic violence, including children, are paramount.” Further, sub-s (2)(a) requires that people who “fear or experience domestic violence, should be treated with respect and disruption to their lives should be minimised.”
166. [166]
     The issue for the court is not simply whether an aggrieved wants an order to be made, or indeed whether the aggrieved would feel better if an order was made, but whether the making of such an order is necessary or desirable, specifically for the purpose of protecting the aggrieved from domestic violence.
167. [167]
     XAZ submitted that the posts have been removed from public access and that OBQ has not received any further messages from any of the purported accounts. It is submitted that OBQ cannot point to any conduct in recent months that would suggest that XAZ’s conduct has escalated or is likely to continue.
168. [168]
     The Magistrate concluded that it was necessary for the court to make a protection order to protect OBQ from further acts of domestic violence. The Magistrate made a permanent order in the same terms as the temporary order to remain in place for a period of five years.
169. [169]
     In the circumstances, where the offending posts were removed upon the service of the domestic violence application on XAZ, and where the conduct of XAZ had continued for some three years subsequent to the breakdown of the relationship, the making of the order will protect against further acts by XAZ.
170. [170]
     The Magistrate made a finding of satisfaction as required by s 37(1)(c) of the DV Act and, in the circumstances, it could not be said that the Magistrate failed to correctly exercise her discretion.

Costs

171. [171]
     Section 157(1) of the DV Act provides that each party to a proceeding for an application under this Act must bear their own costs. However, sub-s (2) empowers the court to award costs against a party who makes an application that is dismissed on grounds that it is “malicious, deliberately false, frivolous or vexatious.”
172. [172]
     It has been held, as its language suggests, that s 157 applies to proceedings at first instance and does not to apply to appeals under the DV Act.^[9] Following an amendment effective 28 February 2015, s 142 of the DV Act makes the UCPR apply to an appeal under the DV Act. The effect of that amendment is to make ch 17A (the costs provisions) of the UCPR apply to appeals under the DV Act.^[10]
173. [173]
     Within ch 17A, r 681 relevantly provides that the “costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.” Consistent with that view, each party sought an order for costs of the appeal; XAZ seeking that those costs be on an indemnity basis whereas OBQ seeks his costs fixed in the amount of $9,371.00 being $8,800.00 plus an amount of $571.00 for the costs of obtaining the transcript.
174. [174]
     The starting point is that the costs of the appeal should follow the event unless I am persuaded it is an appropriate case to order otherwise. The purpose of a costs order is not to punish the unsuccessful party but to compensate a successful party.^[11]
175. [175]
     OBQ having been successful, and there being no reason to do otherwise, XAZ should pay OBQ’s costs.
176. [176]
     Pursuant to r 687, the court may fix the amount of those costs. In the circumstances, as I stated at the hearing, it would be preferable that any award of costs be fixed. Whilst the amount sought by OBQ appears reasonable, the solicitor for OBQ has not provided an affidavit confirming that the costs are reasonable nor has the court been provided any break down of those costs. In the absence of any information, other than the bare total figure, I do not consider it is appropriate to exercise the discretion given to the court to fix costs.

Orders

177. [177]
     For these reasons, I make the following orders:

     1. Appeal dismissed.
     2. The appellant pay the respondent’s costs of the appeal to be assessed, if not agreed.