OMD v Porter[2025] QSC 146

SUPREME COURT OF QUEENSLAND

1. [1]
   This is a referral to the Court by the registrar under r 15 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). The applicant seeks leave to file an originating process being an application for review. The proposed application is described as made pursuant to s 43 of the Judicial Review Act 1991 (Qld) (“the JR Act”) and concerns the first respondent’s decision dated 2 December 2021 which dismissed the applicant’s appeal from a Magistrate’s decision to grant a protection order under the Domestic Violence and Family Protection Act 2012 (Qld) (“the DV Act”). Relevantly, the proposed application seeks, inter alia, an order in the nature of certiorari setting aside the first respondent’s decision or, alternatively, a declaration that the decision was not lawfully made. The second respondent, although not served with the proceeding, appeared on the application.

Background to the application under r 15

2. [2]
   On 5 August 2019, an application for a protection order under the DV Act was filed by the Commissioner of Police against the applicant. On 7 August 2019, a temporary protection order was made against the applicant in favour of her former husband, with their two children as named persons. At the time of that order, the applicant and her ex-husband had been separated for some years.
3. [3]
   On 16 December 2019, there was a hearing before the Magistrate on an application under the DV Act for a protection order against the applicant in favour of her ex-husband.  At the end of that day, the application was adjourned part-heard. Some eleven months later, on 16 November 2020, the hearing resumed and was completed. On 13 January 2021, the Magistrate granted the application for a protection order. The two, now adult, children were named persons under that order.
4. [4]
   The applicant appealed to the District Court and sought to set aside the Magistrate’s order. On 19 August 2021, the appeal was heard by the first respondent. On 2 December 2021, the first respondent made a minor adjustment to the terms of the protection order and otherwise dismissed the appeal.
5. [5]
   The appeal before the first respondent was an appeal under s 168 of the DV Act. Section 168 of the DV Act relevantly provides, in respect of such an appeal:

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

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

6. [6]
   Section 169 of the DV Act sets out the powers of the appellate court in deciding the appeal which powers included confirming, varying or setting aside the decision. Section 169(2) of the DV Act materially provides that the decision of the appellate court upon such an appeal “shall be final and conclusive”.
7. [7]
   On this application, it was uncontroversial, that by reason of s 169(2), there was no right of appeal from the first respondent’s decision to this Court. However, the absence of a statutory right of appeal does not mean that the first respondent’s decision is immune from any further legal challenge. In DU v Jackson (DCJ),^[1] Bond JA observed:

3. “In the present case the District Court judge’s jurisdiction to exercise judicial power was conferred on him by Division 5 of Part 5 of the Domestic and Family Violence Protection Act 2012. It is settled law that the Supreme Court has a supervisory jurisdiction which is the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court, and which it is beyond the power of the State legislature to exclude. If the District Court judge was mistaken or had disregarded the nature or limits of his functions or powers on the appeal before him, then he would have made a jurisdictional error. A person aggrieved of that error could obtain an appropriate remedy from the Supreme Court in the exercise of its supervisory jurisdiction.”

8. [8]
   In DU v Jackson (DCJ), Dalton JA also observed that despite s 169(2) of the DV Act, certiorari for jurisdictional error could still issue in respect of a decision made on an appeal under s 168 of the DV Act.^[2] Her Honour identified, and expressly did not resolve, an issue as to whether an appeal pursuant to s 168 was an appeal in the strict sense or an appeal by way of rehearing.^[3] Having identified that issue, Dalton JA went on to observe that whether the appeal was by way of rehearing or in the strict sense, any failure by the appellate court to conduct a real review of the Magistrate’s hearing and reasons, and to form its own view of the parts of the evidence which were contentious on appeal, would amount to jurisdictional error.^[4]

The approach under r 15

9. [9]
   Rule 15 of the UCPR provides:

3. “(1)
   If the registrar considers an originating process appears to be an abuse of the process of the court or frivolous or vexatious, the registrar may refer the originating process to the court before issuing it.

3. (2)
   The court may direct the registrar—

3. (a)
   to issue the originating process; or

3. (b)
   to refuse to issue the originating process without leave of the court.”

10. [10]
    To obtain leave, the applicant is required to demonstrate that the originating process is not vexatious, frivolous or an abuse of process.^[5]
11. [11]
    In McEwan v Merrin (Magistrate) & Ors, Brown J relevantly observed:^[6]

3. “[9]
   In determining whether to grant leave, the question for me is whether the plaintiff sufficiently, in an articulate way set out the nature of the claim and relief sought such that the statement of claim discloses the cause of action identified in the claim. It does not involve an assessment of the prospects of success of the claim or any assessment of the merits of the claim. For the purpose of determining this application the court examines the claim and statement of claim. It is therefore not relevant that I review the affidavit evidence annexing transcripts upon which the plaintiff relies to support her pleaded allegations.

3. [10]
   It is only in the clearest of cases where on the face of the pleading it discloses no reasonable cause of action which is evident on a review of the face of the pleading that leave will be refused. As to what is required of a pleading, Bowskill J (as she then was) in Equititrust Limited v Tucker and Others stated that:

3. ‘….Considerations relevant in deciding if a pleading is deficient include whether it fails to fulfil the function of pleadings, which is to state with sufficient clarity the case that must be met and so define the issues for decision, ensuring procedural fairness; whether it is ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against them; and whether the pleader’s case is not advanced in a comprehensible, concise form appropriate for consideration by both the court, and for the purpose of the preparation of a response’.”

12. [12]
    As a footnote to paragraph 10 of her reasons, her Honour noted that “Even if leave is granted, the claim and statement of claim may still be liable to be struck out on closer analysis by the parties”.
13. [13]
    In the decision at first instance in DU v Jackson (DCJ), Martin SJA agreed with those observations of Brown J insofar as they concerned a proceeding commenced by claim and statement of claim. Martin SJA went on to observe as follows:^[7]

3. “[9]
   An application for a prerogative order under the JR Act is made by way of an application for review – s 43(1). That application is to be made in Form 56 which requires that the details of the claim be set out and that the grounds of the claim be set out in an accompanying affidavit. Thus, the originating process must identify the orders sought and the grounds relied upon for each order. There is no cause of action to be identified – in the sense used in ordinary civil proceedings – but there is a need to articulate how the grounds advanced can support the making of the order or orders sought.”

14. [14]
    On the appeal in DU v Jackson (DCJ),^[8] Bond JA referenced on the facts, sufficient ambiguity in the manner of expression of the District Court judge’s reasons to conclude that there was “a sufficiently arguable case of jurisdictional error to justify the commencement of a proceeding and to warrant an exercise of discretion pursuant to r 15 to permit that to occur”. Bond JA was careful to note that the exercise of discretion pursuant to r 15 was not in any way to be regarded as a decision on the merits. His Honour relevantly observed of the context of an application made under r 15, “[w]hether that proceeding should succeed is a question for another day”.^[9]

The proposed application

15. [15]
    The proposed application for review contains five proposed grounds for review. In her further written submissions dated 3 March 2025, the applicant clarified that only grounds 3 and 4 were said by her to involve or identify jurisdictional error or a denial of procedural fairness. That concession meant that grounds 1, 2 and 5 did not provide any basis for the orders sought by the proposed application.
16. [16]
    It is apparent there is no substance in ground 4. The premise of that ground is that the powers contained in s 169 of the DV Act are only “activated” if an appeal is allowed.  That contention is plainly incorrect and does not reflect the statutory language. The powers contained in s 169 apply “in deciding an appeal”. It was clearly within power for the first respondent to vary the Magistrate’s decision and to otherwise dismiss the appeal.
17. [17]
    As to ground 3, the alleged jurisdictional error or denial of procedural fairness is said to have arisen in the decision making process. The applicant’s essential contention is that the first respondent failed to conduct a real review of the hearing below because his Honour failed to have regard to the cross-examination of the witnesses on the first day of the hearing and failed to form his own view of parts of the evidence, being the cross-examination, which were contentious on the appeal.^[10]
18. [18]
    The evidence on the first day of the hearing before the Magistrate involved evidence from Constable Wylie, Senior Constable Ingram and three neighbours of the aggrieved, Ms Blackmur, Mr Szabo and Ms Cox. These witnesses were cross-examined. The applicant submitted that the reasons of the Magistrate are noteworthy because there is no apparent reference to the cross-examination of any of these witnesses, only their written statements.
19. [19]
    The relevant passage of the first respondent’s reasons appears under the heading “Issue 4: Alleged Failure to Consider Evidence on Day 1”. The first respondent’s reasons relevantly provide as follows:^[11]

3. “[89]
   This issue covers ground of appeal 13. There are three propositions rolled into this ground:

3. (a)
   The first is an extended critique of the propositions in the application prepared by the Police and an allegation that her Honour wrongly relied on the content of the application and the credibility of the evidence of the Police witnesses;

3. (b)
   The second is that her Honour failed to consider the defects in the evidence of the other witnesses exposed in cross-examination on Day 1; and

3. (c)
   The third is the submission that her Honour erred in not finding that the application was vexatious.

3. [90]
   None of these propositions are made good.

3. [91]
   The first proposition is covered by paragraphs 135 to 173 of OMD’s submissions. It challenges individual propositions in the application prepared by the Police. OMD’s complaints about the inaccuracy of matters articulated in the application are generally not persuasive. She repeats her point about the effect of the Family Court orders relating to her access to her daughter being misunderstood by the Police.

3. [92]
   It appears the Police were indeed in error in understanding the effect of the Parenting Orders after the appeal set aside Judge Turner’s orders. However, for the reasons I have given in paragraphs [84] to [87], little turns on that misunderstanding. More fundamentally, however, this part of OMD’s case again indirectly challenges the investigation process. The assertions in the application are not evidence and were not relied upon by her Honour as such. Her Honour referred to the evidence of the Police officers in general terms in her summary of the evidence given at trial, but did not state that she accepted the propositions in the application as fact just because they were prepared by the Police.

3. [93]
   OMD said that her Honour did not consider challenges to Police evidence in cross-examination on Day 1. I am not persuaded that her Honour did not have regard to the cross-examination, much less that she forgot it entirely. Her Honour referred to cross-examination from Day 1 on many occasions, presumably because she thought it to be relevant. One cannot infer error simply because the reasons do not refer to everything that occurred.

3. [94]
   The second proposition is covered variously in paragraphs 183 to 189 of OMD’s submissions. She submits that her Honour failed to have regard to the cross-examination of the various lay witnesses called by DMB. I have read the cross-examination. There is nothing in it of sufficient moment to have required her Honour to do so. Nothing else in her submissions in that regard demonstrates any error in her Honour’s judgment.

3. [95]
   The third proposition is advanced in paragraphs 190 to 196 of OMD’s submissions. Nothing stated in those paragraphs could sustain the conclusion that the application was false, vexatious and frivolous. It is notable, however, that OMD can advance such a submission while entirely failing to grapple with the content of the affidavits of her children (not to mention DMB’s affidavit), which directly speak to their wish not to have contact with her, the reasons for that wish and their stress from her continuing attempts to do so.”

20. [20]
    These paragraphs of the reasons clearly distinguish between the evidence of the police officers and the neighbours. There is however some lack of clarity in these paragraphs as to the extent to which the cross-examination of the police officers was considered by the second respondent. In respect of the cross-examination of the lay witnesses, the reasons on their face state that the second respondent had “read” the cross-examination of the lay witnesses and formed the view that there was nothing of “sufficient moment” in that cross-examination. The applicant submitted that the effect of the cross-examination of the lay and police witnesses had in fact been that the witnesses had “conceded everything that was put before them”. In her submissions, the applicant referred to one police officer having been in the witness box for “some hours” and as having “conceded everything”. It is apparent from her submissions that the applicant essentially wishes to contend that, both in respect of the police and lay witnesses called on the first day, the first respondent failed to conduct a real review of the hearing before the Magistrate by failing to have regard to the cross-examination of those witnesses and failing to form his own view of contentious cross-examination.^[12] The argument as articulated by those submissions may prove particularly difficult to vindicate in the case of the cross-examination of the lay witnesses. However, on this application, I am not concerned with the ultimate merits of the applicant’s arguments. If the arguments as described are ultimately made good, then jurisdictional error would be established. In my consideration, the applicant has sufficiently articulated a recognisable legal ground on which she seeks to review the first respondent’s decision. The ground falls within the type of jurisdictional error described by Dalton JA in DU v Jackson (DCJ).^[13]
21. [21]
    The second respondent prepared a detailed document by way of submissions headed “Searching in vain for identification of arguable ground for jurisdictional error”. Those submissions demonstrated with some clarity why grounds 1, 2, 4 and 5 were not valid or maintainable grounds. To the extent that the document dealt with ground 3, the second respondent’s submissions tended to be more directed to the ultimate merits of the ground rather than to the formulation of the grounds for the purposes of the decision required at the r 15 stage. 
22. [22]
    To the extent that the applicant sought to advance as part of ground 3 a contention that the failure to refer to the cross-examination evidenced some kind of bias, in the nature of pre-judgment, there is no substance or basis for that contention and the applicant should not be allowed to pursue that particular aspect.
23. [23]
    Two previous applications under r 15 have been dismissed. The first application was made before Freeburn J on 6 May 2022 and the second application was made before Muir J on 2 May 2024. As to the first application, it was headed “Application for a Statutory Order of Review” and sought orders including “particulars” of the first respondent’s decision as well as an order setting aside the decision. On the first application, there was some focus upon paragraph 93 of the reasons of the first respondent which state “I am not persuaded that [the Magistrate] did not have regard to the cross-examination, much less that she forgot it entirely”. Freeburn J noted that it was not clear whether the applicant was asserting that this was an error in the sense that there had been no reference at all by the Magistrate to cross-examination on the first day. His Honour went on to note that even if one assumed that the first respondent was entirely wrong about “that conclusion”, it did not establish a basis for relief under Part 5 of the JR Act. Hence, the substantive issue at the time of the first application was whether the first respondent had been right or wrong in making a conclusion about the content of the Magistrate’s reasons. On the second application, a prerogative order in the nature of certiorari was sought and the application explained the materially relevant ground of jurisdictional error and breach of procedural fairness on the basis that “significant concessions” made on the first day of the hearing “were not mentioned by either the [M]agistrate or the first respondent”. The application again referred to paragraph 93 of the reasons of the first respondent and noted that the first respondent had “failed to substantiate that statement” and ultimately failed to refer to the concessions. The second application was dismissed on the basis that no adequate basis for prerogative orders and injunctions under Part 5 of the JR Act had been demonstrated and relevantly there was no “jurisdictional error on the face of the record”.
24. [24]
    The decisions in respect of the first and second applications were interlocutory decisions.^[14] In Rolleston Coal Holdings Pty Ltd v ICRA Rolleston Pty Ltd,^[15] Bowskill J, as the Chief Justice then was, referred to a rule of practice, if not an absolute principle, that a second interlocutory application after a first interlocutory application has been refused “must be founded on a material change of circumstances, or the discovery of new material that could not reasonably have been put before the Court on the hearing of the original application”. Her Honour was careful to observe that “the overriding principle remains, that the court must do whatever the interests of justice require in the particular circumstances of the case”.^[16] Her Honour cited Bajramovic v Calubaquib,^[17] where Emmett JA (with whom Leeming JA and Adamson J agreed) said that a change of circumstances or that new evidence had become available did not exhaust the circumstances in which a second application after an initial unsuccessful application might be made. His Honour then referred to the abovementioned “overriding principle” and noted that the “the interests of justice must prevail in the particular circumstances of any case”.
25. [25]
    The relevant circumstances of this case may be set out as follows. The current application is different in material respects to the first and second applications because this application is sought to be made not just under the JR Act but within the supervisory jurisdiction of the Court.^[18] This application specifically seeks declaratory relief.^[19] The current application has been prepared with the applicant having had the opportunity to consider the Court of Appeal’s recent decision in  DU v Jackson (DCJ),^[20] which was published after the second application. The first and second applications were decided without the benefit of the Court of Appeal’s decision in DU v Jackson (DCJ).^[21] On this application, the focus of the applicant’s real argument is materially different and directed not so much to whether the first respondent was correct or incorrect in his Honour’s analysis of the Magistrate’s reasons but, more fundamentally, to whether, beyond any consideration of the Magistrate’s reasons, the first respondent formed his own view of the cross-examination which had occurred on the first day. Hence, the applicant’s submissions in support of this application at one point characterised the focus of the proposed application as being whether the first respondent had taken into account the cross-examination “effectively”.^[22] That submission was further  explained by the applicant on the basis that the first respondent was said to have not analysed the evidence of the prosecution witnesses at all, not formed his own view of that evidence and not then considered that evidence along with the applicant’s evidence in relation to whether domestic violence had occurred.^[23] I am satisfied that this application is different in material respects to the first and second applications and that having regard to the circumstances, it is in the interests of justice that this current application be considered and decided on its merits.
26. [26]
    Section 46 of the JR Act requires any application for certiorari regarding judgments to be made within three months from the day the judgment was issued. The Court can extend time under s 46 of the JR Act. In DU v Jackson (DCJ),^[24] Dalton JA did not think that the delay, in the circumstances of that case, was a reason to refrain from ordering the registry to issue a proceeding. Her Honour noted in that case that it would be “a matter for the appellant to make an application to extend time if he intends to proceed under the [JR Act]”. Dalton JA remarked that the issue about delay in that case might become uncontentious given that there was similar relief available to the appellant by way of declaration to which no time limit applied as that relief was available in the inherent jurisdiction of the Court.
27. [27]
    There has been substantial delay between the date of the first respondent’s decision and this present application. In terms of the delay which has occurred, it is apparent that within four days of the decision of the first respondent the applicant was seeking to question or place into issue whether the Magistrate had in fact made reference to relevant cross-examination during the first day of the hearing. The applicant’s affidavit filed 23 January 2025 reveals that she has made consistent, continual efforts to seek redress or to overturn the first respondent’s decision. The present case is not a case where the applicant has, during a period of delay, simply done nothing. It may also be observed that, for the purposes of this application at least, the second respondent did not put on any evidence of prejudice caused by delay. In all of the circumstances, I do not consider that the delay which has occurred since the first respondent’s decision is indicative of a proceeding which is to be regarded as vexatious, frivolous or an abuse of process. In my consideration, the delay in the present case is not a reason to refrain from ordering the registry to issue the proceeding. That said, it will be a matter for the applicant to apply to extend time if she intends to proceed under the JR Act as distinct from merely seeking declaratory relief. Further, the grant of leave to issue the proceeding, does not foreclose a defence of laches from being raised, if such a defence is available.
28. [28]
    The applicant has demonstrated to my satisfaction that the proposed application [being the document marked exhibit A to CFI 3] if suitably amended, is not vexatious, frivolous or an abuse of process. The appropriate order is that the registrar be directed to issue the proposed application on the condition that the resulting proceeding is stayed until the applicant amends the application so that she seeks only an order in the nature of certiorari and/or a declaration on the ground that the first respondent committed jurisdictional error by failing to conduct a real review of the Magistrates Court hearing and reasons so as to form his own view of the evidence comprising the cross-examination of witnesses on the first day of that hearing.

29. Order

29. [29]
    The registrar is directed to issue the proposed application being the document marked exhibit A to CFI 3, on the condition that the resulting proceeding is stayed until the applicant amends the application so that she seeks only an order in the nature of certiorari and/or a declaration on the ground that the first respondent committed jurisdictional error by failing to conduct a real review of the Magistrates Court hearing and reasons so as to form his own view of the evidence comprising the cross-examination of witnesses on the first day of that hearing.