Grace v Peter[2024] QSC 69

SUPREME COURT OF QUEENSLAND

1. [1]
   Grace filed an application for a domestic violence protection order - a DVO - against her former de facto husband Peter.^[1]  A summary hearing of the foreshadowed application for summary dismissal was listed to occur.
2. [2]
   At the outset of the listed hearing Grace’s solicitor attempted to orally withdraw Grace’s application for a DVO.  The withdrawal was resisted by Peter’s counsel who argued the application should be dismissed.  He referred to evidence suggesting the DVO application was motivated by Grace’s desire for retaliation.
3. [3]
   The learned presiding Magistrate refused to allow the oral withdrawal.  She reasoned the DVO application had been brought for a dominant improper purpose and should therefore be dismissed. 
4. [4]
   Her Honour dismissed the DVO application and adjourned consideration of Peter’s foreshadowed application for costs.  That costs can be awarded in the event of a dismissal, but not a withdrawal, may explain why an application which ended below and which each side wanted to end below is now before the Supreme Court.
5. [5]
   Grace seeks judicial review of the Magistrate’s decision on the ground her Honour did not have the power or jurisdiction to decide that Grace’s withdrawal of her application be dismissed.  She seeks the setting aside of the orders below and a declaration the DVO application was withdrawn.  Peter opposes the application.^[2] 
6. [6]
   Grace argues that the application was withdrawn below and her Honour acted without jurisdiction, or exercised power improperly, by rejecting the withdrawal and continuing to purportedly decide the application by dismissing it.  Peter argues, despite the purported withdrawal, that her Honour had the power to instead dismiss the application to prevent an abuse of the court’s own processes.  But the abuse of process in her Honour’s view was that the DVO had been brought for an improper purpose.  If that were so then it was no abuse of process to end the proceeding by withdrawing it. 
7. [7]
   Grace’s argument should be accepted and the relief sought granted. 

The issues

8. [8]
   Explaining that outcome requires consideration of five main issues. 
9. [9]
   Those issues, and the conclusions now reached in respect of each of them, are in summary:

1. What happened below? The court below refused to allow the oral withdrawal and purportedly decided the application by dismissing it.
2. How is a DVO application supposed to be decided?  A DVO application needs to be decided before it can be dismissed.
3. How is a DVO application withdrawn?  An applicant has the right to withdraw a DVO application orally in court before the application is decided.
4. Can the court refuse an oral withdrawal?  The right of oral withdrawal is unfettered, though possibly subject to the court’s power to control and prevent abuse of its own processes.
5. Should the presiding Magistrate have refused to allow the oral withdrawal?  There was no relevant abuse of process; refusing to allow the withdrawal and dismiss the application was an improper exercise of power and there was no jurisdiction to proceed to decide the application. 

1. The court below refused to allow the oral withdrawal and purportedly decided the application by dismissing it.

10. [10]
    Grace filed an application for a protection order against Peter.  At a mention date for the application, Peter’s solicitor indicated that the application was contested, and a summary dismissal application was to be made.  Grace’s duty lawyer informed the court that Grace wished to proceed with her DVO application. The presiding Magistrate listed the hearing of the foreshadowed summary dismissal application to occur on 1 November 2023.
11. [11]
    Affidavits by Peter and Grace were then filed, on 23 and 27 October respectively.  However, late in the morning of 31 October 2023 – the day before the listed hearing – Grace’s lawyer notified Peter’s lawyer that Grace would be withdrawing her application. 
12. [12]
    The following day Grace’s solicitor, Ms Ozanne-Pike, attempted to do just that when the parties appeared in court.  After the taking of appearances, she immediately asked to be heard.  Alive to what was about to occur Peter’s counsel, Mr Rawlings, interrupted, explaining he wanted to go first. 
13. [13]
    This exchange followed:

“MR RAWLINGS:  If I could just outline, there’s a bit of a tension about what is going to happen next.  This matter is listed for an application for dismissal.

HER HONOUR:  Is it?

MR RAWLINGS:  I believe so.

MS OZANNE-PIKE:  There will be an oral application of a withdrawal, your Honour.

HER HONOUR:  … Okay.

MR RAWLINGS:  So this is for a summary dismissal application and we have been informed in the last 24 hours that there is an application to withdraw the substantive domestic violence application before the Court.  Ultimately, that is opposed, and I just raise that in relation to what may happen next and asking your Honour not to make any orders just yet.

HER HONOUR:  Okay.  I see. 

MR RAWLINGS:  Yes.

HER HONOUR:  Thank you.

MS OZANNE-PIKE:  Your Honour, I have instructions to withdraw this application.  I have a precedent case to hand up to your Honour.  It … makes it very clear … that once an application is withdrawn there is no power to award costs which I believe my learned friend is going to make an application for.”^[3]

14. [14]
    The precedent Ms Ozanne-Pike provided her Honour with was KAV v Magistrate Bentley & Anor.^[4]   That case found an applicant had an unfettered right to withdraw a DVO application, subject only to a court’s potential power to control an abuse of its own processes.
15. [15]
    Peter’s counsel thereafter made submissions, explaining his “application for summary dismissal was effectively on the basis that the application before the Court was an abuse of the Court’s process”.^[5]  The premise of that argument was said to be that the purpose or motivation behind the application itself “was not a bona fide use of the Court’s power”.^[6]
16. [16]
    After some toing and froing in oral submissions, Peter’s counsel highlighted messages sent by Grace six days after she filed her application.  The messages suggested retaliation had motivated her bringing of the application.  For example:

• “…[Y]ou are drinking your own medicine atm and after threatening me w a DVO tasaaadaaaa. You’ve go one. Approved by the court.  Fck yaaaa cnt…”
• “He threatened me to put a dv on me.  So I put one on the cunt… [Peter] can say goodbye to his gun licence.  I’m fighting for the sole custody and will get it…”

17. [17]
    Such evidence obviously troubled her Honour, who said:

“[T]he communications from the aggrieved to the respondent … caused me to be very concerned about the integrity of the Court and the processes of this particular Court and what this Court ought be used for and that, as Mr Rawlings says, if a withdrawal is allowed, that really it’s just like, you know, no harm no foul, if I can use that colloquial expression …”^[7]

18. [18]
    Her Honour went on to express concern the information before her suggested “at the very least” that the applicant’s “dominant purpose” in bringing the application was improper.^[8]
19. [19]
    However, the consideration of evidence of the above character appears to have been the only consideration of evidence engaged in at the hearing.  There was no apparent consideration of the nature of the eight alleged incidents Grace’s application was grounded upon.  Nor was there any apparent consideration of the possibility of mixed motivations, including, for example, fear arising from the occurrence of the events grounding the application.
20. [20]
    Grace’s solicitor intimated the attempt to resist the withdrawal was a manoeuvre towards pursuing a costs application.  Conscious of that, Peter’s counsel asserted the “primary purpose” of his approach was “actually for some level of permanency or some level of certainty that these allegations will not return”.^[9]  Referring to Family Court proceedings being on foot, he submitted there was a real risk “this application will be brought back”.^[10]  He urged a dismissal rather than withdrawal, “in order to prevent this Court’s process from being used in an inappropriate way in the future”.^[11]  He later submitted “that the withdrawal itself may be used as an abuse of these Court’s processes”.^[12]
21. [21]
    This spectre of some future potential abuse of process was speculative at best. There was no history of past repeat applications and no evidence of any intent on the part of Grace to bring a like application in the future.  To the contrary, it was apparent from the submissions of Grace’s own solicitor that Grace had accepted advice the better forum to ventilate her concerns would be Family Law proceedings.
22. [22]
    The apparent legal point of Peter’s counsel’s submissions was that a withdrawal would theoretically leave Grace able to bring another similar DVO application in the future.  In contrast, a dismissal would mean the bringing of another DVO application could fail if found to be an abuse of process as grounded on the same complaints as a DVO application previously decided on the merits and dismissed.  However, much could turn on a later application’s factual detail and such a finding would be no certainty.^[13]  Further, the time for assessing whether such a hypothetical future event is an abuse of process would be when and if the event occurs.   It held no relevant concern for the court at the time of the events below.
23. [23]
    Presenting a dismissal as preferable to the withdrawal, because it was a better safeguard against the speculative future possibility of the application being brought again, had an unfortunate effect.  It wrongly implied her Honour was confronting some kind of equal choice about whether the mechanism of a dismissal was a better mechanism for ending the proceeding early than the mechanism of a withdrawal.
24. [24]
    The misleading allure of that implication in a very busy jurisdiction, seemingly led her Honour to quickly conclude the matter as a simple choice between mechanisms, saying:

“Well, the application should be dismissed.  I think that is a better mechanism than allowing a withdrawal because I think this goes beyond – in terms of the material before me, and I’m happy to hear more from you about this, if you wish, Ms Ozanne-Pike, but this goes beyond an applicant aggrieved coming to the Court to say things that have been resolved satisfactorily, is no longer required.  What counsel is saying, now, and it’s based on evidence filed before the Court, is that it’s more than that.  It’s more wilful, more intentional on the aggrieved, in terms of the application for it and her subsequent actions are very difficult to see that – subsequent actions through any other lens, to my eye, anyway.  So I’m not going to allow the matter to be – withdrawal of the application, unless you want to be heard further.  I’m more inclined to dismiss it.”^[14]

25. [25]
    Ms Ozanne-Pike thereafter sought an adjournment, “in light of” what she described as her Honour’s “refusal of her client’s withdrawal”.^[15]
26. [26]
    The adjournment application was resisted.  Her Honour rejected the application and the following exchange ensued:

“HER HONOUR:  …I’m not prepared to adjourn it for the issue of whether or not the matter ought to be dismissed.  I’m going to make that clear.  It was set down for the hearing today.  That is allowed.  I’ll hear about whether or not there’s an adjournment for application for costs only.

MS OZANNE-PIKE:  So, I’m sorry, your Honour, it’s---

HER HONOUR:  If---

MS OZANNE-PIKE:  Your Honour’s making a decision today---

HER HONOUR:  I’m making a decision---

MS OZANNE-PIKE:  ---to dismiss it?

HER HONOUR:  ---now, on the material, and I accept the submissions made by counsel that the applicant aggrieved has had sufficient time… She was on notice that this matter was going to be heard today, so I’m not going to adjourn it for the purposes of that.  I’m dismissing the application.  I will be prepared to hear about whether she’s seeking an adjournment for the issue of costs. …”^[16]

27. [27]
    Despite the apparent finality of the Magistrate’s expressed conclusions, there followed further submissions, in the course of which Grace’s solicitor submitted:

“I can’t take it any higher than, your Honour, my client indicated yesterday that she was withdrawing.  She’s done so orally as per allowed under the Rules and … the Supreme Court have established that, as unfair as it may seem, the issue is that … the Act simply doesn’t provide for the matter to continue on….”^[17]

The legal representatives of both sides, and her Honour, inaccurately referred at times to the oral withdrawal as an “application” to orally withdraw.  However, it is obvious that Grace’s solicitor was purporting to orally withdraw her DVO below.  It is likewise obvious from the transcript of proceeding that Peter’s counsel and her Honour understood that is what she was purporting to do.  Grace’s complaint is that her Honour wrongly purported to reject or to not allow the withdrawal.

28. [28]
    After further submissions, essentially re-agitating the same issues, her Honour drew together what she had previously found in the following further reasons, again favouring a dismissal as “a more appropriate” choice over a withdrawal:

“HER HONOUR:  All right.  That does – it does cause me some concern about the rule making it quite narrow, in terms of what I can do if an applicant makes – an applicant aggrieved applies to have the matter dismissed [sic: withdrawn], but I am still concerned about the issues raised by counsel, Mr Rawlings, about this is set down for an interim hearing today.  It’s not the first mention of the matter and we’ve already had ventilation at the first opportunity, that is, the first mention about having the application dismissed.  The applicant aggrieved stood by her application.

Subsequent to that, material has been provided to the court and it’s in that material that the question about the abuse of power of this court is raised and on the material before me, it’s of significant concern that I have an applicant aggrieved who made an application, came to court on the first mention, was legally represented, stood by her application, then has sought to withdraw for, as the respondent says, issues that of themselves, you know, are very concerning and whether or not it’s sufficient evidence or there’s sufficient material before the court to say, well, really, there’s a legitimate concern about the proper purpose of this court being abuse, if I may use that term, by the applicant aggrieved and therefore, is it more appropriate for me to not allow the withdrawal, to dismiss the application to have the matter withdrawn that, in fact, just dismiss the application and that is – and no doubt, the aggrieved will have other remedies if that decision is not well-received but that’s what I’m going to do.  Okay.  So the application to withdraw is dismissed but I am seeking to dismiss the application.”^[18]

29. [29]
    The DVO application was thus dismissed.  The hearing of Peter’s application for costs was adjourned.
30. [30]
    In characterising what occurred below, some latitude is appropriate in construing what was said by her Honour, bearing in mind it was in the course of reasons given in Court contemporaneously with the hearing of argument.
31. [31]
    Peter’s counsel in the review characterised what occurred below as the Court merely exercising its implied power to regulate its own procedures to ensure fairness.^[19]  It was submitted:

“Here, the Court did not refuse to allow the withdrawal of the application, her Honour decided the dismissal application rendering the withdrawal a nullity.”^[20]

32. [32]
    That is not an accurate characterisation of what occurred below.  It is not as if her Honour merely deployed her procedural control of the courtroom by, for a moment, postponing hearing Grace’s solicitor articulate the withdrawal until grasping the position each side was taking.  Events went well past that.  Having learned of each side’s position and been led into confronting her task as some kind of process of equal choice between the outcomes they were seeking, her Honour expressly rejected one and selected the other.
33. [33]
    There was some literal variability in her Honour’s language regarding the withdrawal - compare for example, “I’m going to not allow the … withdrawal of the application”^[21] and, “The application to withdraw is dismissed”.^[22]  But it is clear from such language that her Honour refused to allow the withdrawal of the application. 

2. A DVO application needs to be decided before it can be dismissed.

34. [34]
    As explained above, the submissions of Peter’s counsel below seemed to present ending the proceeding by allowing its withdrawal or instead dismissing it, as if equal choices in the same process.  His urging of a dismissal as preferable reasoned that a dismissal would be a safeguard against Grace possibly bringing a like application again.  A dismissal could have some potentially protective future effect, but only by reason of it having earlier determined the merits of a like application.  This heralds the point, now explained, that the process of deciding to dismiss a DVO application requires substantive judicial decision-making whereas an applicant’s withdrawal of a DVO application does not.
35. [35]
    The Domestic and Family Violence Protection Act 2012 (Qld) empowers the Magistrates Court to make DVO’s, either in the form of protection orders or temporary protection orders, on application by a police officer or by, or on the authority of, a person in fear of domestic violence, the so-called “aggrieved”.  Such orders place conditions on the behaviour of the respondent to the application and it is an offence for the respondent to breach such orders.  Section 136 of the Act confers jurisdiction upon the Magistrates Court to “hear and decide” any application made to it under the Act.
36. [36]
    As to whether the Court, having heard an application for a protection order, decides to make such an order, the Court may make a protection order if satisfied of three elements prescribed by s 37(1) of the Act, namely that a relevant relationship exists, that the respondent has committed domestic violence against the aggrieved and that the protection order is necessary or desirable to protect the aggrieved from domestic violence.
37. [37]
    It is clear the Court has the discretion to expedite the process of receiving evidence when hearing and deciding an application for a DVO.  For example, s 145(1) provides the Court is not bound by the rules of evidence and may inform itself in any way it considers appropriate.  Evidence may take the form of oral testimony inclusive of cross-examination and it may also be by affidavit.  As much flows by implication from provisions such as ss 148 and 151 of the Act.
38. [38]
    It also flows from the content of the Domestic and Family Violence Protection Rules, which apply to a proceeding in a court under the Act pursuant to s 142 of the Act.  Rule 22 contemplates that the court may, in respect of a proceeding, issue directions dealing with the giving of affidavit evidence and the cross-examination of witnesses.  In giving such directions, r 23 requires the court to have regard to the complexity of the case, the importance of the issues involved, the volume of the evidence to be led, the time expected to be taken and the giving of a reasonable opportunity to each party to lead evidence and cross-examine witnesses.
39. [39]
    The Court’s capacity to expedite the hearing of a DVO application via such provisions does not extend to dismissing an application without deciding it, subject to s 38.  The effect of s 38 is that, where a respondent appears, the only circumstance under which the court “may dismiss a DVO application without deciding it” is if the applicant does not appear.  Section 38 had no application below, for both parties appeared. Section 38 makes clear that where the applicant appears, the application for a DVO cannot be dismissed without it first being decided.
40. [40]
    It is conceivable the making of that decision could be expedited by an applicant’s admission about the merits of the application.  For example, an applicant might admit there is no substance to the application’s allegations or that they are incapable of satisfying the court of the three elements stipulated in s 37(1) (that a relevant relationship exists, that the respondent has committed domestic violence against the aggrieved and that the protection order is necessary or desirable to protect the aggrieved from domestic violence).  Given the nature of domestic violence and its conflicting emotional impact upon the mind of its victim, it would be important for a court to ensure such an admission was genuine and voluntary before acting on it.  Importantly though, the mere indication an applicant is withdrawing a DVO application is not a concession the application was not supported by sufficient evidence.
41. [41]
    Further, it is conceivable, given the breadth of the Court’s above discussed discretion in expediting proceedings, that it could reach a decision to dismiss summarily, that is, on the basis the applicant’s filed affidavit evidence taken at its highest shows, without the need for cross-examination of deponents, that the application cannot succeed.  Neither the Act nor the Rules in terms provide for a summary dismissal.  However, paras 58 and 59 Magistrates Court Practice Direction No 4 of 2022 expressly contemplate the potential hearing of an application for summary dismissal of a DVO application.  The procedural legitimacy of such a hearing need not be considered here.  The presently relevant point is that if the applicant for a DVO appeared at such a hearing the application for a DVO could not be dismissed without it first being decided.
42. [42]
    Such a decision may result from a hearing which is expedited in some of the ways mentioned above but it must be a decision made on the evidence, not arbitrarily.  That is because, as McHugh JA put it in Soulemezis v Dudley (Holdings) Pty Ltd,^[23] a judicial decision must be arrived at by finding the relevant facts and then applying the relevant rules or principles.
43. [43]
    Thus, even in the context of an application for summary dismissal, the presiding Magistrate will still need to consider the evidence; including consideration of the evidence relevant to the three elements stipulated in s 37(1).  It is difficult to see how a summary decision to dismiss could be reached without at least first considering whether there is evidence which, if accepted, may support the granting of the application.^[24]
44. [44]
    In the present matter the singular factual focus was Peter’s evidence of Grace’s retaliatory purpose in bringing the application.  The matter was dismissed in the absence of any apparent consideration of or finding about the content or sufficiency of the applicant’s allegations in support of the application. It was also dismissed in the absence of any admission by Grace that such content was inadequate for the application to succeed.  Whether the absence of at least a summary hearing of the application before dismissing it constituted error need not be decided in this judicial review.  Indeed, the remedy for such an error would be an appeal to the District Court.
45. [45]
    The present point is that there is no equivalence of process in choice of outcome for a court presented with an applicant orally withdrawing an application and a respondent seeking its dismissal.  That her Honour was enticed into approaching the hearing as if there such equivalence does much to explain the occurrence of reviewable error below.

3. An applicant has the right to withdraw a DVO application orally in court before the application is decided.

46. [46]
    The Act does not stipulate the mechanism by which an applicant may withdraw a DVO application.  However, its provisions acknowledge a party bringing an application may withdraw it.  For example, s 98(d) provides that temporary protection orders cease having effect when the related application for a protection order “is withdrawn”.^[25]
47. [47]
    Further the Rules make specific provision for the withdrawal of a DVO application.  Rule 50 relevantly provides:

“50 Withdrawal of DFVP application

1.  The applicant for a domestic violence order or the variation of a domestic violence order may withdraw the applicant’s DFVP application before a DFVP court decides the application in 1 of the following ways—

1.  orally during a proceeding in a DFVP court;

2.  in writing to the clerk of the DFVP court (an application to withdraw). …”

48. [48]
    Note the timing of the oral withdrawal allowed by r 50 is “before a DFVP court decides the application”.  It does not confine the operation of the means of oral withdrawal to some earlier stage of the application.  For example, it does not say, “before the listed day of hearing”.
49. [49]
    It should also be noted r 50 uses different language for oral and written withdrawals.  An oral withdrawal in court is described as just that.  In contrast a written withdrawal is described as an “application to withdraw”.
50. [50]
    Beyond sub-s (1) the balance of r 50 deals only with a written application to withdraw, describing its content, procedures for notice by service of it on the parties and, at sub-s (5), providing the court “may decide an application to withdraw without the parties appearing, unless a DFVP court orders otherwise”.  Thus, as was explained in KAV v Magistrate Bentley & Anor,^[26] sub-ss (2) to (5) are machinery provisions regarding written applications.  They are provisions calculated at effecting the withdrawal of an application without the need for parties to appear.  Their contemplated need to ensure proper notice of the parties and a potential need to require parties to appear are not needs arising in the context of an oral withdrawal “during a proceeding in a DFVP court”, per s 50(1)(a).
51. [51]
    The reference in r 50(1)(a) to the withdrawal orally in court falls to be read with r 50(1)’s introductory text.  It allows that the applicant “may withdraw”, not merely may “apply” to withdraw.  This does not suggest the court has some discretionary power to exercise over whether or not the withdrawal may occur.
52. [52]
    Peter’s counsel places reliance upon another rule, r 6, to contend a Magistrate’s continuation of a proceeding, despite a r 50 oral withdrawal, would not be a nullity.  Rule 6 provides a failure to comply with a rule “is an irregularity and does not render a proceeding, a document or step taken in the proceeding a nullity”.  Rule 26 provides to similar effect in respect of a failure to comply with a direction under the Rules.  Peter’s counsel places reliance upon r 6(1).
53. [53]
    Reliance on r 6(1) is misconceived in the present context.  A failure to comply with r 50 is a failure relating to the method of the withdrawal.  So, for example, if an applicant deploying r 50’s out of court documentary application to withdraw provisions failed to include some of s 50(2)’s requisite content it would not render the ensuing withdrawal a nullity.  In a similar vein, if it is clear an applicant is orally withdrawing the DVO application in court per s 50(1)(a), but in doing so says “I apply to withdraw my application”, rather than “I withdraw my application”, such imprecision of language would not render the act of withdrawal a nullity.
54. [54]
    It is not a failure to comply with r 6’s procedure for effecting a withdrawal which is the issue here.  The present issue is one of jurisdiction or improper exercise of power. Rule 6 says nothing about the court’s jurisdiction or power to decline or refuse to allow the act of oral withdrawal. 

4. The right of oral withdrawal is unfettered, though possibly subject to the court’s power to control and prevent abuse of its own processes.

55. [55]
    Peter’s counsel in this review emphasised r 50 says nothing as to how a court should act in consequence of an applicant’s oral expression of withdrawal in court.  That carries no significance because it is not the court which is ending the proceeding.  The applicant is ending it by orally withdrawing it.
56. [56]
    It was also submitted it is a matter for the court in managing the proceeding before it as to when it allows the oral withdrawal to be heard.  The orderly management of proceedings by the court could potentially require a presiding Magistrate to momentarily postpone hearing an applicant who attempts to articulate an oral withdrawal.  However, the withdrawal of a proceeding is of determinative significance to the need to continue the proceeding.  An applicant seeking to orally withdraw the application should therefore be heard as soon as is practicable.  To fail to do so would be antithetical to the orderly management of the proceeding.
57. [57]
    In any event, the act of oral withdrawal did not fail below because it went temporarily unheard by the presiding Magistrate.  It failed because her Honour specifically refused to allow the withdrawal.
58. [58]
    In KAV v Magistrate Bentley & Anor,^[27] I rejected the argument that a Magistrate had the unfettered discretion to refuse an act of withdrawal in court of a DVO application.  As there explained, by reference to longstanding authority, a party who has brought a proceeding has the right to withdraw it, subject to any limitation of that right imposed by statute, such as a requirement for leave.  There is no such statutory limitation or requirement applicable to applicants orally withdrawing their DVO applications in court.
59. [59]
    In KAV I left open the question whether, and if so in what way, the right of withdrawal was subject to the court’s power to control and prevent abuse of its own processes.   For example, it was observed at para [51] of KAV:

“It might be that a power to prevent a withdrawal of an application for a protection order can be implied, from the court’s power to control and prevent an abuse of its own process,^[28] for the narrow purpose of preventing a withdrawal which is not genuinely made because the applicant is acting under duress.  However that does not fall for determination here because that was not the basis for refusing the withdrawal.”

60. [60]
    The reasons in KAV also found it unnecessary to consider the example of a withdrawal being attempted during the substantive hearing but prior to the Magistrate’s decision.  As explained at [58] of KAV, that was not the type of event under consideration in that case.  It was, however, the type of scenario which attracted the following observations,^[29] of Mahoney JA in Schipp v Herfords Pty Ltd:^[30]

“I must myself confess to feeling, uninstructed by authority, that in many cases injustice may well be done if a person in the position of a plaintiff can proceed to the point of judgment and then, having decided that he may fail, or having been told that he is about to fail, withdraw his proceeding as of right.  However, “intuitive feelings for justice” have been said to be “a poor substitute for a rule antecedently known, more particularly where all do not have the same intuitions”; and the right of a person in the position of a plaintiff so to withdraw is, it has been said, based upon authorities dating back to the time of Coke.”^[31]

61. [61]
    A similarly extreme scenario was posited by Mitchell J in Frigger v Holbrook,^[32] in declining to set aside a notice of discontinuance likely filed with the purpose of avoiding the possibility a filed application for summary dismissal would succeed.     In finding the plaintiffs’ discontinuance was not an abuse of process his Honour observed:

“It might well be an abuse of process if, for example, the plaintiffs filed a notice of discontinuance after the master announced his decision to grant summary judgment but before an order was made.  However, the position is different when a plaintiff discontinues before determination of the merits of his or her case.”^[33]

62. [62]
    That type of extreme scenario did arise in the criminal jurisdiction in R v Jell; ex parte Attorney-General.^[34]  There a trial judge refused to allow the prosecution to discontinue its proceeding at a stage when the hearing of the prosecution had closed, the trial judge had ruled there was no case to answer and all that remained was for the trial judge to direct the jury to return a not guilty verdict.  The judge was held to have the power to refuse the discontinuance in the exercise of his power to control proceedings to prevent unfairness.
63. [63]
    But such an extreme scenario did not arise in the present case.  The oral withdrawal, of which notice had been given the day before, was clearly attempted to be effected at the outset of the appearance, before the court embarked upon any form of substantive hearing.
64. [64]
    It is well known to be an occasional source of frustration to legal practitioners that some of their client respondents expend costs preparing to defend DVO applications which end up being withdrawn.  It is frustrating because the power to award costs derives solely from statute and the Act does not confer a power to award costs if a DVO application is withdrawn.  That was obviously the deliberate choice of the legislature.  It evidently did not want sometimes emotionally conflicted applicants to be deterred from bringing applications because it could expose them to costs liability if they have a change of heart and withdraw them.
65. [65]
    The absence of potential power to award costs for a withdrawn application could not of itself provide a potential basis for rejecting or refusing to hear an oral withdrawal.  Deploying a right of withdrawal of an application before it is substantively heard could not conceivably constitute an abuse of process merely on the basis it deprives a respondent of a chance to argue for a costs order which could only occur in the event of a completed hearing and ensuing dismissal.
66. [66]
    The only potentially relevant power to order costs under the Act is conferred by s 157, which relates to an application which has continued and is heard and dismissed.  Section s 157 provides: 

“157 Costs

1.  Each party to a proceeding for an application under this Act must bear the party’s own costs for the proceeding.

2.  However, the court may award costs against the party who made the application if the court hears the application and decides—

1.  to dismiss the application and, in doing so, also decides that the party, in making the application, intentionally engaged in behaviour, or continued a pattern of behaviour, towards the respondent to the application that is domestic violence; or

Note— This type of behaviour is known as systems abuse or legal abuse. It is behaviour in which a person intentionally misuses the legal system, including, for example, by starting court proceedings based on false allegations against another person, as a way to intentionally exert control or dominance over the other person or to torment, intimidate or harass the other person.

2.  to dismiss the application on the grounds that it is malicious, deliberately false, frivolous or vexatious.

3.  In this section— party includes an aggrieved.”

67. [67]
    Section 157 in its present form differs from the content of s 157 at the time of KAV. Below and in this review Peter’s representatives referred to that change in an attempt to distinguish KAV.  There is no relevant distinction arising.
68. [68]
    The amendment which made the change did so by inserting an additional power to award costs.^[35]  It appears in s 157(2)(a), which allows a court to award costs, after an application is dismissed, if the court also decides in dismissing the application, that in making the application, the applicant intentionally engaged in behaviour or a pattern of behaviour that was of itself domestic violence.  The subsection’s “Note” explains such behaviour is known as ‘system abuse’ and ‘legal abuse’.
69. [69]
    The “Note” gives the example of starting a court proceeding “based on false allegations” as a way of tormenting or harassing the other person.  In the present case the presiding Magistrate did not find the application had been based on false allegations.  Indeed, no apparent consideration was given to the complaints grounding the application.
70. [70]
    The more important present point is that s 157 had no application at all to the withdrawal which is the focus of this review.
71. [71]
    Section 157 is only potentially relevant “if the court hears the application and decides … to dismiss the application”.  Then, and only then, may the court award costs, and only if the circumstances identified in s 157(2) are decided.  Section 157 is irrelevant here because Grace’s solicitor sought to effect the oral withdrawal before the purported hearing of the application proceeded.  It was not then to the point that if the hearing proceeded and if a decision was made to dismiss the application and if in making that decision an adverse finding was made per s 157(2), the court would then have discretion to award costs to Peter.
72. [72]
    It will be recalled the learned presiding Magistrate expressed concern there was evidence Grace had a retaliatory motive in bringing the application.  Such evidence is suggestive of conduct of a kind to which s 157(2)(a) is directed.  It may be there was some conflation below of the relevance of such evidence to a provision which then had no temporal relevance, with its relevance to whether her Honour could refuse to allow the oral withdrawal.
73. [73]
    Evidence an application was brought with an improper purpose could have no logical relevance to the unfettered right of withdrawal at the stage events were at below.  Let it be assumed for the sake of argument that the court had the power to refuse to allow the exercise of that right to prevent an abuse of its own processes.  Assuming the application was brought with an improper purpose, the potential abuse of process deriving from that fact could only be the bringing of the application or its continuance, not its discontinuance.
74. [74]
    Another point should be made in connection with the systems or legal abuse mentioned in s 157(2)(a).  The legislature was clearly cognisant of the prospect of such abuse in amending s 157 to include it.  But that only relates to a stage after the court has heard and decided to dismiss the DVO application.  The legislature did not choose to amend the Act to create some separate pathway to dismissal founded solely upon evidence of systems or legal abuse, independently of the need to hear and decide the application.
75. [75]
    It will be recalled that Peter’s counsel below asserted the motivation for seeking the dismissal was the protection that a dismissal would preclude Grace from bringing the same application again.  Peter’s counsel in this review submitted that depriving Peter of the protection a dismissal would give against reinstatement of the application was the relevant abuse of process justifying the decision below.^[36]  That submission must be rejected for two reasons.
76. [76]
    First, the abuse of process it purportedly identifies was not the abuse of process the learned presiding Magistrate relied upon in taking the course which she did below.  Her Honour clearly identified the abuse of process as being the bringing of the DVO application for a dominant improper purpose.
77. [77]
    Second, if Grace were to subsequently file a like DVO application, and there was no evidence that she intended to do so, the time for determining whether that constituted an abuse of process would be then.

5. There was no relevant abuse of process; refusing to allow the withdrawal  and dismiss the application was an improper exercise of power and there was no jurisdiction to decide the application.

78. [78]
    The above analysis compels the following conclusions.
79. [79]
    Grace’s solicitor, in what she said from the outset below, was orally withdrawing the DVO application in court.  Grace then had the right to orally withdraw the application.  That right was unfettered by the limitations or requirements of statute.
80. [80]
    It is unnecessary to conclude whether a withdrawal could be rejected by the court as an abuse of process because, even if it could be, this act of withdrawal was not an abuse of process.  The possibility the application was begun with a retaliatory motive could not logically make the withdrawal of it an abuse of process.  The possibility the withdrawal could have occurred earlier was frustrating. But that it occurred, on notice, at the immediate outset of the listed hearing, did not make the withdrawal an abuse of process.   Nor did the hypothetical possibility a like application could be brought in the future make it an abuse of process to withdraw the existing application.
81. [81]
    The DVO application was orally withdrawn.  There was no lawful basis to refuse to allow that oral withdrawal.  It was an improper exercise of power to do so and to instead proceed to decide the application by dismissing it.  The withdrawal had the effect that the application was no longer before the court.  What followed was in effect a nullity because her Honour had no jurisdiction to proceed to purportedly hear and dismiss an application which had been withdrawn.

Orders

82. [82]
    It should be declared the application was withdrawn.  The orders made after the withdrawal should be set aside.
83. [83]
    I will hear the parties as to costs if costs are not agreed.
84. [84]
    My orders are:

1. It is declared the application for a domestic violence protection order was withdrawn on 1 November 2023.
2. All orders of the Magistrates Court made in respect of the application on or subsequent to 1 November 2023 are set aside.
3. I will hear the parties as to costs, if costs are not agreed in the meantime, at 9.15am 22 May 2024 (out of town parties having leave to appear by videolink).