CNE v VYN[2024] QDC 90

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 29 July 2023 a police officer issued a Police Protection Notice (“PPN”) under the power granted by s. 101 of the Domestic and Family Violence Protection Act 2012 (“the Act”).^[1]  It named the appellant as the aggrieved and the first respondent as the respondent.  It contained “No Contact” conditions as provided by ss. 106A and 107A of the Act.
2. [2]
   A PPN is taken to be an application for a Protection Order (“PO”) made by a police officer.^[2]  The notice became returnable on 1 August 2023 at the Wynnum Magistrates Court.  At that time the Court was provided with a lengthy statement which outlined, amongst other things, a series of factual allegations against the present first respondent.^[3]  By that application, the applicant also sought a Temporary Protection Order (“TPO”). 
3. [3]
   At that hearing, the first respondent was legally represented, a police prosecutor appeared for the applicant police officer and the appellant appeared unrepresented. The Magistrate received submissions from the police prosecutor and the first respondent’s solicitor. He also asked questions of the appellant personally.  His Honour then gave short reasons, which will be considered in more detail below, and dismissed the whole of the proceedings.
4. [4]
   It is that order that is the subject of this appeal, which proceeded on three amended grounds.  The second respondent largely, but not wholly, agreed with the appellant’s submissions. The first respondent, appropriately, conceded that one of the amended grounds was made out.  He did not concede either of the other two grounds.  It therefore follows that a consideration by me of those two grounds is not necessary, however I have concluded that it is appropriate given the nature of the matters raised.
5. [5]
   On 31 May 2024 I made the following orders:

1. The appeal is allowed.

2. The matter is remitted to the Magistrates Court at Brisbane to be heard by a different Magistrate.
3. No order as to costs.

6. [6]
   These are my reasons for those orders.

The nature of the appeal

7. [7]
   A person who is aggrieved by a decision to refuse a domestic violence order may appeal against that decision.^[4]  A “domestic violence order” is defined to encompass both a PO and a TPO.^[5] The Commissioner of Police was named as the second respondent in this appeal, and has a right of appearance in any event.^[6]
8. [8]
   The appeal is to be decided on the evidence and proceedings before the Court below, unless the appellate Court makes an order to the contrary.^[7]  No such application was made, and consequently no such material was received.
9. [9]
   Therefore, this appeal is in the nature of an appeal by re-hearing on the record. The onus is on the appellant to show there is some error in the decision under appeal.^[8]  The powers of this Court to interfere with the orders below are exercisable only where the appellant can demonstrate that, having regard to all the material, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.  As the decision to dismiss these proceedings involves the exercise of a discretion, error of the kind explained in House v King^[9] needs to be demonstrated before the appeal can succeed, unless some other form of error not related to the exercise of the discretion is established.  The last category referred to in House v The King has sometimes been expressed as requiring satisfaction that no reasonable decision-maker could have made the decision under appeal. The powers to dispose of the appeal are found at s. 169 of the Act.
10. [10]
    In conducting the re-hearing, I must recognise the natural limitations that exist in the case of any appellate Court proceeding wholly on the record, including in this case the advantage the Magistrate had of seeing and hearing the appellant when he was speaking with her.^[10]  Within those constraints, this Court is required to conduct a real review of the proceedings below, including the reasons below, and make its own determination of relevant facts in issue from the material, including any inferences to be drawn, giving due respect and weight to the Magistrate’s conclusions.^[11]
11. [11]
    Under s. 169(2) of the Act, the decision of this Court is final and conclusive.

Amended grounds of appeal

12. [12]
    There was no objection to the amendment of the grounds of appeal. They were:

“Ground 1: The learned Magistrate erred in applying the wrong legal test in determining whether a Temporary Protection Order was warranted;

Ground 2: The learned Magistrate erred by failing to afford the Appellant procedural fairness by questioning her directly during the course of the application;

Ground 3: The learned Magistrate erred in summarily dismissing the application for a Protection Order.”

Factual summary

13. [13]
    It is unnecessary to provide a detailed recitation of the factual allegations that were the basis for the issuing of the PPN.  It is sufficient to say that the statement before his Honour dealt with events between 2000 and when the PPN was issued, although mostly since 2016.  Many of the allegations were at the objectively lower end of seriousness but they, at least in a cumulative sense, were capable of prima facie establishing “emotional or psychological abuse”.^[12] 
14. [14]
    Additionally, specific allegations were made that at about Christmas 2021, the first respondent punched a hole in a door in the course of an argument with the appellant, that after the relationship terminated on 9 July 2023, the first respondent was upset that the appellant had removed his access to cameras in the house she still lived in, that the next day the first respondent attended that house seeking access to their two children (which was denied), and that a few days later the first respondent attended the daycare centre where one of the children was and falsely told staff he had arranged to collect that child. 
15. [15]
    Further specific allegations were that the first respondent was in the habit of sexually touching the appellant in circumstances which were arguably non-consensual.  The last such occasion was said to have been on 23 June 2023.
16. [16]
    It was expressly stated that the appellant was fearful for her safety and the safety of her children.
17. [17]
    In the course of oral submissions, his Honour twice raised whether he should grant an order;

    1. “But the Court has to be satisfied this women’s [sic] ^[13] in need of protection.”^[14]
    2. “But there’s some suggestion of coercive control, but she seems to be in a position where she, too, is making decisions that impact on the two parties, particularly in relation to the children … where is the need for a domestic violence order?”^[15]
18. [18]
    The first respondent’s lawyer informed his Honour from the Bar table that his client denied the allegations of sexual touching, but no evidence was put on.^[16]  He also indicated an intention to start “negotiating with (the appellant) or her lawyer to deal with parenting and property”^[17] and he referred to the generally civil nature of communications since separation, as evidenced by text messages. Overall, his submissions were directed to persuading his Honour not to grant a TPO.  He did not suggest the proceedings should be dismissed.
19. [19]
    In the course of receiving submissions, his Honour directly questioned the appellant as to circumstances around the conduct outlined in the statement before him, and the basis for her fear.  At one point, the appellant stated she was feeling “very overwhelmed”,^[18] however the questioning continued.
20. [20]
    His Honour’s findings include the following:

“In relation to the application I have looked at it from a couple of different perspectives and tried to rationalise in my own mind how we could activate the – this jurisdiction to put in place a mechanism around the protected^[19] nature of these orders to protect the aggrieved because it appeared to me that there has been some – it looks like a misconception as a consequence of being exposed to some incident that happened back in 2000.”^[20]

21. [21]
    A little later, after being reminded by the police prosecutor of the allegations of sexual misconduct, his Honour said:

“It is really a line ball, but I do not think that is going to alter the way I’m going to resolve this matter.  I do not think there is sufficient information that the Court can properly allow this to enter or cross the threshold to activate the domestic violence order.”^[21]

22. [22]
    Then, after ascertaining that the appellant had engaged a “family lawyer”, his Honour said:

“I think given that that is the next logical step where this is going to go I do not think it is appropriate that the Court grant a domestic violence order today.  These matters are well in hand and the parties have had the good sense to engage lawyers.  And that, I think, is really the jurisdiction where these matters are going to be properly resolved.  On that basis I intend to strike out the application given it is a police application. … But on the basis as it has been presented today I am not satisfied there is sufficient evidence there that the Court would activate the jurisdiction, so I am striking the police application out.”^[22]

Consideration

Ground 3: The learned Magistrate erred in summarily dismissing the application for a Protection Order.

23. [23]
    As this is the ground which was, properly, conceded by the first respondent, it is convenient to deal with it first.
24. [24]
    In OSE v HAN,^[23] I found that there was an implied power contained within the Act to summarily dismiss an application for a PO.  However, I also found that an application for a summary dismissal should only be granted in the clearest of cases and with the exercise of exceptional caution.  I further found that it was required that an application not be summarily dismissed where there is any evidence which, when taken its highest, is capable of supporting the grant of an application. 
25. [25]
    Notably, the application there entertained was at an advanced stage of a contested hearing for a PO. Affidavits had been filed by both the appellant and the respondent in those proceedings, and the appellant had been cross-examined on three separate dates. The fact that the respondent had not yet been cross-examined was a relevant consideration, and affected what material should be relied on.^[24]
26. [26]
    In the present case, the matter was at its first mention. There had not been any directions for the filing of material, let alone any filed. It was far from a clear case that warranted summary dismissal and, although the Magistrate appears to have weighed the material before him, it cannot be said that he exercised exceptional caution.
27. [27]
    The power to summarily dismiss applications of this nature is not to be used as some form of triaging the matters deemed suitable to proceed to a hearing stage. That error is compounded when the justification for dismissal of the proceedings is based on a value-judgment generated by, given the workload of the Magistrates Court, a necessarily brief reading of the preliminary material,^[25] and questioning of the aggrieved, who was not then legally represented. His Honour did not know whether the respondent would even file material in response, which may have contained some admissions as to certain conduct.
28. [28]
    Further, in my view, it was not open to his Honour to elect to effectively handball the application to be catered for by some ill-defined mooted discussions about family law issues, without even the assurance that family law proceedings were on foot. It is a notorious fact that domestic violence orders, as defined, can and often do exist concurrently with various orders made in the Federal Circuit and Family Court of Australia. ^[26] That is the result of the federated legal system in which we operate. It is also a fact that, in appropriate cases, the existence of orders in family law proceedings will mean that the discretion to grant a TPO will not be exercised favourably to an applicant. Similarly, the existence of orders in family law proceedings may mean that the granting of a PO is not necessary or desirable, or will otherwise affect the exercise of the discretion under s. 37. In each instance, the dominant feature will often be the nature and content of the orders made in the family law proceedings and the content of the material before the Magistrate. Of course, there may be other operative features in any given case.
29. [29]
    Here, his Honour had scant information, which rose only to the point that there was an intention to negotiate about issues of parenting and property, and that each party had engaged lawyers. He had not been informed there were proceedings on foot, let alone there were any orders in place. In those circumstances, it was not open to him to assume that some necessarily ill-defined negotiations or possible family law proceedings were “really the jurisdiction where these matters are going to properly be resolved.”
30. [30]
    The processes under the Act are undoubtedly burdensome on the Magistrates Court, but the exceptional nature of the power to summarily dismiss that I spoke of in OSE v HAN must be respected for the reasons I outlined therein. Change in this area can be effected by legislative intervention, not by the erosion of the express and also protective nature of the provisions themselves through practice and procedure evolved from a limited implied power.
31. [31]
    There is a further basis on which I acted to allow this ground of appeal. As will be explained under the consideration of ground 1 of appeal, the Magistrate had a discretionary power to grant a TPO. The granting of a PO is also discretionary. His Honour did not give any indication that he was contemplating dismissing the application for the PO. To dismiss the application without giving any party notice of the possibility was a breach of the principles of natural justice, or procedural fairness, and amounts to an appealable error.
32. [32]
    The application before the Magistrate sought a TPO, and the police prosecutor’s submissions were directed to that topic. As noted earlier, the first respondent’s solicitor sought to persuade the Magistrate not to grant a TPO. He did not suggest that the proceedings should be dismissed. The term “domestic violence order” contemplates both TPOs and POs. The terminology used by his Honour concerning the exercise of discretion was broad. It may well be that his Honour thought he had altered the parties to the possibility of the dismissal of the application for a PO, but clearly the police prosecutor and the solicitor were operating under the belief that the references to a discretion were to that provided for under s. 45 of the Act. A review of the transcript shows it was reasonable for them to be of that understanding.
33. [33]
    It was necessary that his Honour made clear what he was contemplating if he were to summarily terminate proceedings, a power that should only be exercised in the clearest of cases and with the exercise of exceptional caution, at such an early stage and when there was clearly considerable scope for the evidential allegations to be refined and better focussed once legal representation was engaged. That he did not do so denied the parties procedural fairness and amounts to an error of law.
34. [34]
    It should be noted that the appellant did not argue the third ground of appeal on this basis, but the first respondent recognised that it may be a finding open to me. The second ground of appeal alleges a denial of procedural fairness, but on a specific and different basis. The denial that occurred here nonetheless falls within the rubric of the third ground.
35. [35]
    The second respondent also took issue with his Honour’s reference to there being insufficient evidence to “activate the jurisdiction”,^[27] and that being the reason the application was struck out. It was argued that the jurisdiction was “activated” on the issuing, or alternatively the filing, of the PPN and hence his Honour misunderstood the parameters of the discretion he was being asked to exercise.
36. [36]
    There is merit in this submission, but it is unnecessary to finally decide. I consider that his Honour’s comment is best considered as further evidence of the conduct of a triaging process, and the erroneous use of the implied power to summarily dismiss the application for the PO.
37. [37]
    Accordingly, it was an error to have summarily dismissed the application for a PO in the circumstances that prevailed. That would be sufficient to allow the appeal, but there are aspects of the issues raised under the first ground of appeal which are tangentially relevant to this third ground also. Further, the second ground raises a matter of potential importance. Accordingly, I will briefly deal with each.

Ground 1: The learned Magistrate erred in applying the wrong legal test in determining whether a Temporary Protection Order was warranted.

38. [38]
    The express terms of s. 45 of the Act provide for a discretion to be exercised only if the prerequisite matters at s. 45(1)(a) and (b) have been established. Once, and if, they are established, an applicant must still satisfy the Magistrate that the discretion should be exercised in favour of granting a TPO. Similarly, once the three pre-requisite matters in s. 37 are established, the applicant must still convince the Magistrate to exercise the discretion to grant a PO.
39. [39]
    It may be that different considerations will inform the exercise of the discretion under s. 45 than will inform the exercise of the different discretion under s. 37, not the least of which will be the fact that a refusal to grant a TPO does not of itself terminate the application for the PO. However, there may be considerable overlap in the considerations relevant to the exercise of both discretions. For example, the application of the objects and principles of the Act at ss. 3 and 4 will apply to both discretions, but the differing consequences means they may have differing weight in the exercise of the two discretions. 
40. [40]
    The appellant accepts that a separate discretion to grant a TPO applies once the pre-requisite matters are established, but argues that the Magistrate’s references to the need for protection and the need for a domestic violence order, extracted at [17] herein indicate that his Honour erroneously imported the concepts of “necessary or desirable” which are pre-requisite matters under s. 37(1)(c). That is, it is argued that his Honour took into account irrelevant considerations.
41. [41]
    If his Honour had done that, it would indeed be an error. It would have meant that he had taken into account an irrelevant consideration, at least as that term has been understood in the jurisprudence concerning s. 37. But that term is also a phrase of ordinary English usage, and the necessity or desirability, or in other words the appropriateness, of granting a TPO will be affected by the factual matters brought to the attention of the Magistrate and his or her evaluation of all the facts in reaching an impression of them for the purposes of exercising the discretion. Some hypothetical examples were raised in the course of submissions before me, but they need not be recalled here. It is sufficient to note that much will depend on all the circumstances, as known to the Magistrate, in the particular matter under consideration.
42. [42]
    Making appropriate allowance for the possibility of infelicitous language used by a Magistrate running a busy list,^[28] I am not satisfied that his Honour did in fact take into account that irrelevant consideration.
43. [43]
    Had the Magistrate considered that the refusal of the TPO required a dismissal of the application for a PO, that would undoubtedly have been an error. As noted above, the discretions exist separately and might involve different considerations. However, as I have explained under the consideration of the third ground of appeal, I consider that his Honour was, in effect, conducting a “triage” of the matter to assess the value of the application for the PO proceeding further. It has not been established that he failed to appreciate that the two discretions existed separately of each other.
44. [44]
    Accordingly, this ground of appeal fails.

Ground 2: The learned Magistrate erred by failing to afford the Appellant procedural fairness by questioning her directly during the course of the application.

45. [45]
    The essence of the appellant’s submissions on this ground was that the questioning of the appellant by the Magistrate amounted to cross-examination and that should not have occurred in circumstances where the appellant was self-represented and indicated she was feeling “very overwhelmed”.
46. [46]
    The terms “procedural fairness” and “natural justice” are related, although not necessarily identical. What is appropriate in terms of natural justice depends on the circumstances of the case, including, but not necessarily limited to, the nature of the inquiry, the subject matter and the rules under which the decision maker is operating.^[29] It is an observation that, in my view, is apposite to a consideration of procedural fairness in the current context.
47. [47]
    The Magistrate was legislatively empowered to directly question the appellant, if he considered it appropriate.^[30] That power does not allow any and all material to be received and acted on,^[31] and it does not allow concepts of procedural fairness to be ignored, but it does permit questioning of a party to the application (depending on how it is undertaken). While it can be accepted that the appellant did say that she was feeling very overwhelmed at one stage, and that the questioning continued after that time, the transcript suggests that the questioning was in fact carried out, for the most part, delicately and appropriately.^[32]  It is true that the questioning by the Magistrate was designed to gain a greater understanding of what was before him, and so can be categorised as cross-examination, but it was focussed on relevant information and so was permitted by the legislative power.
48. [48]
    It may be that, depending on the circumstances at hand, it would be procedurally unfair to directly question an unrepresented aggrieved at the first, or an early, mention of an application, and I do not preclude this being a viable ground of appeal in different circumstances. As such, I urge hesitation and caution in doing so. Of course, it will be unavoidable in some circumstances, most notably where a party is not legally represented at the final hearing.
49. [49]
    In the particular circumstances of this matter, I was not satisfied that this ground of appeal was made out.

Disposition

50. [50]
    The appropriate concession by the first respondent on the third ground of appeal, and the reasons for allowing that ground, meant that the appeal had to be allowed. It was common ground that the matter should be returned to the Brisbane Magistrates Court so as to avoid any issues with perceived predetermination of the matter by a Magistrate at Wynnum. The issue was what other orders were appropriate? 
51. [51]
    The appellant sought a TPO containing the mandatory conditions,^[33] and the costs of the appeal, as against the first respondent only. The first respondent contended that a TPO should not be granted in the exercise of the statutory discretion, and sought an order for his costs of the appeal, as against the appellant. The second respondent contended that a TPO should be granted and also specifically raised an issue as to whether the PPN was automatically revived by allowing the appeal. He did not seek costs.

Should a TPO be granted?

52. [52]
    In essence, the appellant argued that because a TPO should have been granted below, the appropriate course was to grant one now. The first respondent contended that there were two related bases for refusing to do so. First, the aggrieved could, and should, have agitated the applicant police officer to refile the application, thereby avoiding the need for the present appeal at all. Second, that she had chosen not to do so meant that there was now a 10-month delay with no evidence put on concerning the conduct of the parties in the meantime, nor the state of the family law issues.
53. [53]
    I do not accept that the application could have been re-filed, in the absence of a material change of circumstances. In my view it would have been dismissed at least as being malicious, frivolous or vexatious.^[34] It is no answer, as the first respondent submitted, that it would not be so categorised upon a concession that the decision to dismiss the application was attended by error. The decision dismissing the application remained binding on the parties by the doctrine of res judicata, until corrected on appeal. A consequence of the first respondent’s submission might be that there would be two conflicting decisions of the same Court concerning the same parties based on the same material, albeit in light of a non-binding concession as to error in the first decision. For that reason, it was not open to re-file the application, in the absence of a material change of circumstances or a successful appeal against the decision.
54. [54]
    Given that conclusion, the occasion to consider the correctness of the decision in HDI v HJQ^[35] concerning the inability to order a stay of proceedings under the Act does not arise.
55. [55]
    The second basis for resistance, although related, is not dependent on the success of the first basis. As noted earlier, a statutory discretion exists under s. 45 of the Act, after satisfaction of the two stated matters. The first respondent’s position implies an acceptance of proof of those matters but, in any event, I am satisfied of both of them independently of any implied concession on the basis of the evidence reviewed by me as part of this re-hearing.
56. [56]
    However, I know nothing of the present circumstances. One of the features of an appeal by re-hearing is that the matter is to be considered in light of the law and circumstances as they exist at the time of the appeal. In contrast, an appeal in the strict sense requires determination on the basis of the law and the circumstances as they were before the court appealed from.^[36]
57. [57]
    I cannot assume that the factual circumstances have not materially changed in the last 10 months.  In order to exercise the discretion judicially, I must have at least some information to assess the appropriateness of granting, or refusing to grant, the TPO. In the absence of any such information, it is not appropriate to grant an order which will place restrictions on the first respondent. Accordingly, I decline to grant a TPO.
58. [58]
    Having reached that conclusion, it is unnecessary for me to consider whether I was empowered to remit the matter for further hearing, having acted under s. 169(1)(c) to set aside the decision and substitute another, there being no express power of remittal in s. 169(1)(c) for a future hearing of the application. I can however indicate that I consider that when acting under s. 169(1)(c) there is an implied power to remit so as to give effect to the judgment of the Court, or at least its consequences. In my view, the existence of such a power is necessary to give proper effect to the expressly granted power,^[37] where a further hearing is required in the Magistrates Court.
59. [59]
    The appellant and second respondent each contended that an express power to do so can be found by reading s. 113 of the District Court of Queensland Act 1967 with r. 766 of the Uniform Civil Procedure Rules 1999. That submission must also be taken to have incorporated r. 785 of the UCPR. I am unable to see where an express power of remittal is found in those provisions, but if I am wrong there would be an express power in addition to the powers in s. 169 of the Act and reliance on an implied power would not be necessary.
60. [60]
    The approach I have taken differs from that I took in Bui v SNL and Anor.^[38] There, I considered that the processes under the Act would pick up the application for the PO for determination. I am now of the view it is better to ensure that occurs by a specific order of remittal. The decisions are not inconsistent with each other.

Was the PPN automatically revived on the success of the appeal?

61. [61]
    In CEE v CNH^[39] I considered a submission concerning the automatic revival of a TPO upon an erroneous dismissal of an application for a PO. I had earlier expressed a view about this situation in Bui v SNL and Anor,^[40] albeit without a detailed consideration. I will not repeat all that I observed in either case, but it suffices to say that much will depend on the circumstances at hand, and whether there has been any intervening event such as to defeat or frustrate the automatic revival. I cannot detect any difference in approach to the automatic revival of a PPN.
62. [62]
    In the present matter, the PPN contained a “no contact” condition, which would be enforceable if the PPN were automatically revived. In this case, I considered it was not appropriate to grant a TPO. The “no contact” condition in a PPN is more onerous and burdensome than the standard condition in a TPO and so the refusal to grant the TPO must be taken to mean that the PPN is not automatically revived in this case.

Costs

63. [63]
    The availability of a costs order at first instance is legislatively restricted.^[41] However, costs are available on an appeal.^[42] The usual, but not intractable, rule is that costs follow the event, and the appellant succeeded on the appeal, albeit not on all grounds.
64. [64]
    None of the parties sought to persuade the Magistrate to make the order made. Indeed, none of them were aware it was in his Honour’s contemplation. It is therefore regrettable that any party should have been put to the expense of initiating or responding to an appeal. I cannot see any justification in those circumstances for one party being burdened with the costs of two parties. The appropriate order is that there be no order as to costs, thereby requiring each party to bear their own costs.